B-136742, JUL. 17, 1958

B-136742: Jul 17, 1958

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF JULY 2. A RESUME OF THE FACTS OF RECORD SHOWS THAT ITEM NO. 10 OF THE INVITATION FOR BIDS ON THE SURPLUS PROPERTY OFFERED FOR SALE WAS DESCRIBED AS ONE LOT OF MISCELLANEOUS PAINTS AND LACQUER. PRIOR TO THE SUBMISSION OF ITS BID A REPRESENTATIVE OF THE CONTRACTOR INSPECTED THE MATERIAL WHICH WAS STORED WITHIN ANOTHER LOT OF PAINT. SUCH FACT IS CONFIRMED BY THE PROPERTY DISPOSAL OFFICER INVOLVED IN LETTER DATED FEBRUARY 18. WHO FURTHER STATES THAT SUCH MANNER OF STORAGE COULD EASILY HAVE BEEN MISLEADING TO THE BIDDERS. AS A RESULT ACCEPTANCE OF THE PAINT WAS REFUSED. TO THE EFFECT THAT A BONA FIDE MISTAKE HAD BEEN MADE BY THE CLAIMANT AS A RESULT OF THE FAILURE OF THE DISPOSAL OFFICERS TO HAVE PROPERLY SEPARATED AND IDENTIFIED THE LOT OF PAINT PRIOR TO TIME THE GOODS WERE OFFERED FOR INSPECTION.

B-136742, JUL. 17, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF JULY 2, 1958, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REFERRING TO US FOR DETERMINATION THE QUESTION AS TO WHETHER THERE MAY BE GRANTED THE RELIEF REQUESTED BY SEIKOSHA SEISAKUSHO K. K., BECAUSE OF AN ERROR IN THE BID IT SUBMITTED WHICH FORMED THE BASIS OF CONTRACT NO. DA (S) 92 557-FEC-18574, DATED OCTOBER 22, 1957.

A RESUME OF THE FACTS OF RECORD SHOWS THAT ITEM NO. 10 OF THE INVITATION FOR BIDS ON THE SURPLUS PROPERTY OFFERED FOR SALE WAS DESCRIBED AS ONE LOT OF MISCELLANEOUS PAINTS AND LACQUER. PRIOR TO THE SUBMISSION OF ITS BID A REPRESENTATIVE OF THE CONTRACTOR INSPECTED THE MATERIAL WHICH WAS STORED WITHIN ANOTHER LOT OF PAINT, AND THE ENTIRE QUANTITY ENCLOSED IN ONE BAND. SUCH FACT IS CONFIRMED BY THE PROPERTY DISPOSAL OFFICER INVOLVED IN LETTER DATED FEBRUARY 18, 1958, WHO FURTHER STATES THAT SUCH MANNER OF STORAGE COULD EASILY HAVE BEEN MISLEADING TO THE BIDDERS. AS A RESULT OF THE FOREGOING THE CONTRACTOR ASSUMED THAT THE LOT DESCRIBED UNDER ITEM 10 INCLUDED THE ENTIRE QUANTITY STORED WITHIN THE BAND ENCLOSURE AND PREPARED ITS BID THEREFORE UPON THAT BASIS OFFERING TO PURCHASE THE LOT FOR $777.78 COMPARED TO THE SECOND HIGHEST OFFER OF $280.72. AFTER AWARD OF THE CONTRACT THE BIDDER DISCOVERED THE ORIGINAL LOT HAD BEEN SEGREGATED AND A PORTION OF THE PAINT SOLD UNDER ANOTHER CONTRACT. AS A RESULT ACCEPTANCE OF THE PAINT WAS REFUSED.

WE CONCUR WITH THE OPINION EXPRESSED BY THE ASSISTANT CHIEF OF STAFF IN HIS REVIEW OF THE CASE AS SET FORTH IN REPORT OF MAY 21, 1958, AND THE FINDING AND RECOMMENDATION OF THE CONTRACTING OFFICER DATED APRIL 29, 1958, TO THE EFFECT THAT A BONA FIDE MISTAKE HAD BEEN MADE BY THE CLAIMANT AS A RESULT OF THE FAILURE OF THE DISPOSAL OFFICERS TO HAVE PROPERLY SEPARATED AND IDENTIFIED THE LOT OF PAINT PRIOR TO TIME THE GOODS WERE OFFERED FOR INSPECTION.

SINCE THE GOVERNMENT WAS AT LEAST PARTIALLY RESPONSIBLE FOR THE CIRCUMSTANCES GIVING RISE TO THE ERROR COMMITTED, IT IS BELIEVED THAT CONTRACTOR WAS JUSTIFIED IN RESCINDING THE CONTRACT, AND THEREFORE WE WOULD NOT BE REQUIRED TO OBJECT TO THE REFUND BY YOUR DEPARTMENT OF THE CLAIMANT'S BID DEPOSIT.