B-141818, FEB. 10, 1960

B-141818: Feb 10, 1960

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED JANUARY 22. AN AWARD OF CONTRACT WAS MADE TO MR. THE SOLE QUESTION FOR CONSIDERATION IN THIS TYPE OF CASE IS. WHILE THERE WAS A SUBSTANTIAL DISPARITY BETWEEN THE TWO BIDS RECEIVED FOR THE ITEM. WE CONSISTENTLY HAVE HELD THAT IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE. IT MAY NOT BE CONCLUDED THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF PROBABLE ERROR IN THE BID. ARE FULLY APPLICABLE TO THE FACTS IN THIS CASE. ARE RETURNED HEREWITH.

B-141818, FEB. 10, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 22, 1960, WITH ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING OUR DECISION AS TO WHETHER THERE MAY BE DENIED THE RELIEF REQUESTED BY ROSS GAINER, EDMONTON, ALBERTA, CANADA, UNDER CONTRACT NO. N62583S-14563, DATED DECEMBER 9, 1959.

IN RESPONSE TO INVITATION NO. B-15-60-62583, ISSUED BY THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA, ROSS GAINER SUBMITTED A BID DATED DECEMBER 3, 1959, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 65, COVERING ONE LOT OF APPARENTLY UNUSED, GOOD, MISCELLANEOUS BOILER PARTS FOR A TOTAL PRICE OF $300.09. AN AWARD OF CONTRACT WAS MADE TO MR. GAINER AS THE HIGH BIDDER FOR THIS ITEM ON DECEMBER 9, 1959. ON DECEMBER 13, 1959, MR. GAINER ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT HE HAD INTENDED TO BID ON ITEMS NOS. 64 AND 66 BUT NOT ON ITEM NO. 65. BY LETTER DATED DECEMBER 24, 1959, MR. GAINER STATED HIS CLAIM OF ERROR, SUBMITTED HIS WORK COPY OF THE INVITATION TO SUBSTANTIATE THE ERROR, AND REQUESTED RELEASE FROM THE CONTRACTUAL OBLIGATION.

THE SOLE QUESTION FOR CONSIDERATION IN THIS TYPE OF CASE IS, OF COURSE, WHETHER THERE EXISTED ANY CIRCUMSTANCES ESTABLISHING NOTICE, ACTUAL OR CONSTRUCTIVE, ON THE PART OF THE GOVERNMENT CONTRACTING OFFICER AS TO THE PROBABILITY OF ERROR IN THE BID PRIOR TO AWARD. THE RECORD SHOWS NO SUCH NOTICE. WHILE THERE WAS A SUBSTANTIAL DISPARITY BETWEEN THE TWO BIDS RECEIVED FOR THE ITEM, WE CONSISTENTLY HAVE HELD THAT IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE, AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY FROM THE GOVERNMENT, AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT.

IN VIEW OF THE FOREGOING, IT MAY NOT BE CONCLUDED THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF PROBABLE ERROR IN THE BID. THEREFORE, THE LEGAL PRINCIPLES, AS SUPPORTED BY THE COURT CASES CITED IN OUR DECISION DATED JANUARY 15, 1960, TO YOU, AND REFERRED TO IN THE LETTER OF SUBMISSION FROM THE ASSISTANT CHIEF FOR PURCHASING, ARE FULLY APPLICABLE TO THE FACTS IN THIS CASE.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR ALLOWING ANY RELIEF IN THE MATTER.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF FACTS, ARE RETURNED HEREWITH.