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B-141364, JUN. 27, 1960

B-141364 Jun 27, 1960
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JERSEY TRUCK SALES: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 15. WHICH HELD FOR THE REASONS STATED THEREIN THAT THE AWARD TO YOU OF ITEMS NOS. 25 AND 26 ON SPOT BID SALE CONTRACT NO. 30-127-S-60-1 MAY NOT BE CANCELED BECAUSE OF AN ERROR ALLEGED AFTER AWARD AS TO THOSE ITEMS IN YOUR BID ON WHICH THE CONTRACT WAS BASED. AS WAS POINTED OUT IN OUR DECISION. THIS WAS A SALE OF GOVERNMENT SURPLUS PROPERTY AND. THERE MIGHT BE EXPECTED A WIDE RANGE IN BID PRICES WHICH WOULD BE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY WAS TO BE PUT BY THE PARTICULAR BIDDER OR THE CHANCE OF RESALE THEREOF. THE GOVERNMENT WAS INTERESTED ONLY IN GETTING THE HIGHEST PRICE FOR THE MATERIAL TO BE SOLD.

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B-141364, JUN. 27, 1960

TO MR. FRANK SACCO, PRESIDENT, JERSEY TRUCK SALES:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 15, 1960, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION DATED DECEMBER 16, 1959, WHICH HELD FOR THE REASONS STATED THEREIN THAT THE AWARD TO YOU OF ITEMS NOS. 25 AND 26 ON SPOT BID SALE CONTRACT NO. 30-127-S-60-1 MAY NOT BE CANCELED BECAUSE OF AN ERROR ALLEGED AFTER AWARD AS TO THOSE ITEMS IN YOUR BID ON WHICH THE CONTRACT WAS BASED.

AS WAS POINTED OUT IN OUR DECISION, THIS WAS A SALE OF GOVERNMENT SURPLUS PROPERTY AND, CONSEQUENTLY, THERE MIGHT BE EXPECTED A WIDE RANGE IN BID PRICES WHICH WOULD BE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY WAS TO BE PUT BY THE PARTICULAR BIDDER OR THE CHANCE OF RESALE THEREOF. THE MERE DIFFERENCE IN THE PRICES BID FOR SUCH PROPERTY WOULD NOT NECESSARILY PUT THE CONTRACTING OFFICER ON NOTICE OF A MISTAKE AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED FOR FURNISHING NEW EQUIPMENT OR SUPPLIES TO BE PURCHASED BY THE GOVERNMENT. THE GOVERNMENT WAS INTERESTED ONLY IN GETTING THE HIGHEST PRICE FOR THE MATERIAL TO BE SOLD, THE CONTRACTING OFFICER HAD NO MEANS OF KNOWING THERE WAS AN ERROR IN YOUR BID, AND HE WAS NOT REQUIRED TO ASSUME THE BURDEN OF EXAMINING EVERY LOW BID FOR POSSIBLE ERROR THEREIN. SIMILAR CONCLUSIONS HAVE BEEN REACHED BY THE COURTS. SEE UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, AFFIRMED 253 F.2D 956, AND CASES CITED THEREIN.

IN THE PRESENT CASE, THEREFORE, THE GOOD FAITH ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO, AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT HAS AUTHORITY TO WAIVE OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT, OR TO MODIFY AN EXISTING CONTRACT WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED, 292 U.S. 645; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335.

IN VIEW OF THE FOREGOING, AND SINCE NO NEW EVIDENCE OR INFORMATION HAS BEEN PRESENTED BY YOU WHICH WOULD WARRANT A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION OF DECEMBER 16, 1959, THE ACTION TAKEN THEREIN IS AFFIRMED.

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