B-136736, AUG. 1, 1958

B-136736: Aug 1, 1958

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED JULY 2. BIDS WERE REQUESTED FOR THE PURCHASE FROM THE GOVERNMENT OF 175 ITEMS OF SURPLUS PROPERTY. WHEN BIDS WERE OPENED AT 10 A.M. HE WAS AWARDED ITEM NO. 26. WHICH WAS RECEIVED AT THE ARSENAL AT 5:17 P.M. STAMBLER THAT THE SALE WAS HELD AS SCHEDULED AND ALL AWARDS WERE MADE PRIOR TO RECEIPT OF HIS WIRE. HAD NO AUTHORITY TO RESCIND AWARDS THAT HAVE BEEN MADE. THAT HIS WIRE WAS NOT RECEIVED UNTIL "1717 HOURS ON 22 APRIL 1958. AS THE PURCHASER WAS AWARE. AWARDS ARE MADE IMMEDIATELY AFTER CALLING EACH ITEM. THE BIDDER WAS ADVISED THAT IF HE INTENDED TO FILE EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IN HIS BID HE SHOULD FURNISH A WRITTEN REQUEST INCLUDING A STATEMENT AND SUPPORTING EVIDENCE OF THE EXISTENCE OF THE MISTAKE AND THE MANNER IN WHICH IT OCCURRED.

B-136736, AUG. 1, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED JULY 2, 1958, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), SUBMITTING FOR CONSIDERATION A REQUEST BY MR. NORMAN P. STAMBLER, 1134 SOUTH MAIN STREET, LOS ANGELES, CALIFORNIA, FOR CANCELLATION OF HIS BID IN CONNECTION WITH INVITATION NO. 41-117-S-58-33, ON THE GROUNDS OF A MISTAKE IN HIS BID DISCLOSED SUBSEQUENT TO AWARD.

BY SPOT BID SALES ANNOUNCEMENT NO. 41-117-S-58-33, BIDS WERE REQUESTED FOR THE PURCHASE FROM THE GOVERNMENT OF 175 ITEMS OF SURPLUS PROPERTY, BIDS TO BE PUBLICLY OPENED AT 10 A.M. ON APRIL 22, 1958.

IN RESPONSE TO THE INVITATION NORMAN P. STAMBLER SUBMITTED BIDS FOR THE PURCHASE OF THE FIVE ITEMS OF PROPERTY LISTED AS ITEMS NOS. 26, 37, 38, 43, 49, 54, 57, AND 61; AND WHEN BIDS WERE OPENED AT 10 A.M. CST ON APRIL 22, 1957, HE WAS AWARDED ITEM NO. 26, AT HIS BID PRICE OF $1.03 PER UNIT, FOR APPROXIMATELY 298 EACH "KNUCKLE, FOR AXLE, USED AND UNUSED. FEDERAL STOCK NO. 0509-2530-353-2366. AC $22.30 EACH; " AND ITEM NO. 49, AT HIS UNIT BID PRICE OF $17.78 EACH, FOR APPROXIMATELY 80 EACH "TRANSFER, USED. FEDERAL STOCK NO. G506-2520 753-8251. AC $197.00 EACH.'

THE RECORD SHOWS THAT BY TELEGRAM, DATED APRIL 22, 1958, 2:12 PHP TO THE PROPERTY DISPOSAL OFFICER AT RED RIVER ARSENAL, WHICH WAS RECEIVED AT THE ARSENAL AT 5:17 P.M. CST OF THE SAME DAY AND BY THE DISPOSAL PROPERTY OFFICE ON APRIL 23, 1958, MR. STAMBLER REQUESTED THAT HIS ENTIRE BID ON THE FIVE ITEMS BE CANCELLED BECAUSE OF ERROR IN BIDDING. IN LETTER DATED APRIL 23, THE PROPERTY DISPOSAL OFFICER ACKNOWLEDGED THE TELEGRAM AND ADVISED MR. STAMBLER THAT THE SALE WAS HELD AS SCHEDULED AND ALL AWARDS WERE MADE PRIOR TO RECEIPT OF HIS WIRE, AND THAT HE HAD BEEN AWARDED ITEMS NOS. 26 AND 49 ON SPOT BID SALE NO. 41-117-S-58-33. IN LETTER DATED APRIL 28, ACKNOWLEDGING LETTER FROM THE PROPERTY DISPOSAL OFFICER OF APRIL 23, MR. STAMBLER AGAIN REFERRED TO HIS WIRE OF APRIL 22 REQUESTING CANCELLATION OF HIS ENTIRE BID DUE TO ERROR IN BIDDING AND ALSO ALLEGED THAT THE MATERIAL DID NOT COME UP TO SPECIFICATIONS AS ADVERTISED.

BY LETTER DATED MAY 1, 1958, THE PROPERTY DISPOSAL OFFICER ADVISED MR. STAMBLER THAT HE, AS CONTRACTING OFFICER, HAD NO AUTHORITY TO RESCIND AWARDS THAT HAVE BEEN MADE; THAT HIS WIRE WAS NOT RECEIVED UNTIL "1717 HOURS ON 22 APRIL 1958, THE DAY OF THE SALE; " AND THAT ON SPOT BID SALES, AS THE PURCHASER WAS AWARE, AWARDS ARE MADE IMMEDIATELY AFTER CALLING EACH ITEM. THE BIDDER WAS ADVISED THAT IF HE INTENDED TO FILE EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IN HIS BID HE SHOULD FURNISH A WRITTEN REQUEST INCLUDING A STATEMENT AND SUPPORTING EVIDENCE OF THE EXISTENCE OF THE MISTAKE AND THE MANNER IN WHICH IT OCCURRED, AND THAT IF THAT INFORMATION WAS FURNISHED IT WOULD BE REFERRED TO HIGHER AUTHORITY FOR DETERMINATION; AND THAT, IF HE DID NOT FILE EVIDENCE SHOWING THAT AN ALLEGED MISTAKE WAS MADE IN HIS BID, THE PROPERTY DISPOSAL OFFICER WOULD PROCEED UNDER PARAGRAPHS 5 AND 7 OF THE GENERAL SALE TERMS AND CONDITIONS CONTAINED ON PAGE 2 OF THE SPOT BID SALE ANNOUNCEMENT. IN LETTER DATED MAY 8, 1958, MR. STAMBLER ACKNOWLEDGED THE CONTRACTING OFFICER'S LETTER OF MAY 1 AND AGAIN ASKED THAT CONSIDERATION BE GIVEN HIS REQUEST TO CANCEL HIS ENTIRE BID, BUT HE FURNISHED NO INFORMATION IN SUPPORT OF HIS ALLEGATIONS THAT AN ERROR HAD BEEN MADE IN HIS BID OR THAT THE MATERIAL DID NOT COME UP TO THE ADVERTISED SPECIFICATIONS.

IN HIS STATEMENT, DATED MAY 15, 1958, REGARDING ALLEGED MISTAKE IN BIDS BY NORMAN P. STAMBLER, THE CONTRACTING OFFICER STATES THAT A REVIEW OF THE MERCHANDISE ADVERTISED FOR SALE AS ITEMS NOS. 26 BAND 49 REVEALED THAT THE ITEMS APPEARED TO BE AS DESCRIBED IN THE INVITATION. HE FURTHER STATES THAT THE ABSTRACT OF BIDS WAS ALSO REVIEWED TO DETERMINE THE VARIATION IN BIDS ON THOSE ITEMS AND IT WAS DISCLOSED THAT SEVEN OTHER BIDS WERE RECEIVED ON ITEM NO. 26 WITH UNIT PRICES RANGING FROM ?025 TO ?72 EACH, SECOND HIGH BID, AND THAT SIX OTHER BIDS WERE RECEIVED ON ITEM NO. 49, AT UNIT PRICES VARYING FROM $2 TO $14.05 EACH, SECOND HIGH BID.

IT IS NOT INDICATED THAT MR. STAMBLER INSPECTED THE MATERIAL IN QUESTION PRIOR TO SUBMITTING HIS BIDS. NEITHER HAS HE FURNISHED ANY EVIDENCE IN SUPPORT OF HIS ALLEGATIONS OF ERROR IN HIS BIDDING OR THAT THE MATERIAL DOES NOT COME UP TO THE ADVERTISED SPECIFICATIONS OF ITEMS NOS. 26 AND 49. FURTHERMORE, THERE WAS NOTHING ON THE FACE OF HIS BIDS TO INDICATE ANY ERROR THEREIN, AND HIS BID PRICES DO NOT APPEAR OUT OF LINE WITH THE OTHER BIDS RECEIVED ON THOSE ITEMS, CONSIDERING THIS WAS A SALE OF SURPLUS PROPERTY AND THAT MR. STAMBLER DID NOT ALLEGE ERROR IN HIS BIDDING UNTIL AFTER AWARD TO HIM OF THE SALE OF THOSE ITEMS.

THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BIDS ON ITEMS NOS. 26 AND 49 WERE IN GOOD FAITH AND WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR THEREIN AND RESULTED IN A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR RELIEVING MR. STAMBLER FROM HIS OBLIGATIONS UNDER THE AWARDS FOR THE PURCHASE OF ITEMS NOS. 26 AND 49.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT AND THE ABSTRACT OF BIDS, ARE RETURNED.