B-142354, MAR. 31, 1960

B-142354: Mar 31, 1960

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER (R11.2). A DECISION IS REQUESTED AS TO WHETHER RELIEF FROM THE CONTRACT PROPERLY MAY BE DENIED MR. WERE ALSO RECEIVED ON THAT ITEM. WAS ACCEPTED BY THE CONTRACTING OFFICER ON FEBRUARY 5. AWARD OF THE SALE OF ITEM NO. 26 WAS MADE ON CONTRACT NO. THAT INSTEAD OF BIDDING $505 ON ITEM NO. 26 IT WAS HIS INTENTION TO BID THAT AMOUNT ON ITEM NO. 22. ITEM NO. 22 IS DESCRIBED IN THE BID INVITATION. WERE RECEIVED ON THAT ITEM. PERKINS MAY HAVE MADE AN ERROR IN TRANSMITTING HIS BID BY ENTERING IT ON ITEM NO. 26 INSTEAD OF ITEM NO. 22 AS THE ONE ITEM IS AT THE TOP OF PAGE 13 AND THE OTHER IS AT THE TOP OF PAGE 12. IT IS HIS OPINION THAT THIS IS NOT SUFFICIENT EVIDENCE TO JUSTIFY RELIEF AND RECOMMENDS THAT RELIEF NOT BE GRANTED.

B-142354, MAR. 31, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER (R11.2), WITH ENCLOSURES, DATED MARCH 22, 1960, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, CONCERNING THE MATTER OF A MISTAKE IN BID ALLEGED BY URSIN PERKINS, ATASCADERO, CALIFORNIA, AFTER AWARD TO HIM OF ITEM NO. 26 ON SALES CONTRACT NO. N62583S-14670. A DECISION IS REQUESTED AS TO WHETHER RELIEF FROM THE CONTRACT PROPERLY MAY BE DENIED MR. PERKINS.

BY INVITATION NO. B-35-60-6283, DATED JANUARY 7, 1960, THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA, SOLICITED BIDS--- TO BE OPENED JANUARY 28, 1960--- FOR THE PURCHASE FROM THE GOVERNMENT OF 90 ITEMS OF SURPLUS PROPERTY CONSISTING OF TRUCKS, TIRES, TRAILERS, BUSES, TRACTORS, ENGINES, SHOVEL FRONTS, FORKLIFT TRUCKS, ETC., AS LISTED AND DESCRIBED IN THE INVITATION. IN RESPONSE THERETO, URSIN PERKINS SUBMITTED A BID DATED JANUARY 28, 1960, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 26, AT A PRICE OF $505, DESCRIBED IN THE INVITATION AS FOLLOWS:

TABLE

"TRUCK; 3/4 TON WEAPONS CARRIER 1 EACH USN 214001

MFR. DODGE MOTOR CO. YR.MFR. 1945 MOD. WC-52 CHASSIS

SER. 81529200, ENG. DODGE 6 CYL. GAS.SER. 1214-14075

(2038402-L) ACQUISITION COST: $3,025.00 USED - FAIR

THE ABSTRACT OF BIDS SHOWS THAT 19 OTHER BIDS, RANGING FROM $501.50 TO $30 EACH, WERE ALSO RECEIVED ON THAT ITEM. URSIN PERKINS' BID, BEING THE HIGHEST, WAS ACCEPTED BY THE CONTRACTING OFFICER ON FEBRUARY 5, 1960, AND AWARD OF THE SALE OF ITEM NO. 26 WAS MADE ON CONTRACT NO. N6258S-14670.

THEREAFTER, URSIN PERKINS ADVISED THE CONTRACTING OFFICER BY TELEPHONE, CONFIRMED BY LETTER DATED FEBRUARY 12, 1960, THAT INSTEAD OF BIDDING $505 ON ITEM NO. 26 IT WAS HIS INTENTION TO BID THAT AMOUNT ON ITEM NO. 22, SUBMITTING HIS WORKSHEET (COPY OF THE BID INVITATION) TO SUBSTANTIATE HIS ALLEGATION OF ERROR, AND REQUESTED RELIEF FROM HIS BID AND RETURN OF HIS BID DEPOSIT.

ITEM NO. 22 IS DESCRIBED IN THE BID INVITATION, AS FOLLOWS:

TABLE

"TRUCK; FORK LIFT, 6000 LB.MFR. 1 EACH CLARK

EQUIP.YR. 1951, 6 TIRES 4 BY 2 WHEEL DRIVE, MOD.

6024Y60, SER. Y602096, CLARK FORK LIFT YD. TYPE 152

IN. LIFT, PNEU. TIRES, 2 EA 750 BY 10 4 EA. 750 BY

15. GAS, MFR. CONTINENTAL MOD. F6209, SER. 44390, 6

CYL. USN 13-00545 (0561172-L) ACQUISITION COST:

33,268.12 USED - FAIR"

AND THE ABSTRACT OF BIDS SHOWS THAT 51 BIDS, RANGING FROM $2,691.99 TO $108, WERE RECEIVED ON THAT ITEM.

THE CONTRACTING OFFICER IN HIS STATEMENT OF FACTS REGARDING THE SALE STATES THAT THE PURCHASER'S BID OF $505 ON ITEM NO. 26 AS COMPARED WITH THE SECOND HIGH BID OF $501 DOES NOT SEEM OUT OF LINE WITH OTHER BIDS SUBMITTED, ALTHOUGH THE WORK COPIES DO INDICATE MR. PERKINS MAY HAVE MADE AN ERROR IN TRANSMITTING HIS BID BY ENTERING IT ON ITEM NO. 26 INSTEAD OF ITEM NO. 22 AS THE ONE ITEM IS AT THE TOP OF PAGE 13 AND THE OTHER IS AT THE TOP OF PAGE 12; HOWEVER, IT IS HIS OPINION THAT THIS IS NOT SUFFICIENT EVIDENCE TO JUSTIFY RELIEF AND RECOMMENDS THAT RELIEF NOT BE GRANTED.

WHILE THE EVIDENCE SUBMITTED INDICATES THAT MR. PERKINS MADE AN ERROR IN HIS BID, AS ALLEGED, IT IS CLEAR THAT ANY ERROR THAT MAY HAVE BEEN MADE BY MR. PERKINS WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT, BUT WAS DUE SOLELY TO HIS OWN NEGLIGENCE. SUCH ERROR, THEREFORE, WAS UNILATERAL--- NOT MUTUAL--- AND WOULD NOT ENTITLE THE PURCHASER TO RELIEF, UNLESS THE CIRCUMSTANCES WERE SUCH THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER WAS CHARGEABLE WITH NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH ERROR SO AS TO MAKE HIS ACCEPTANCE AN ACT OF BAD FAITH.

THE BID OF MR. PERKINS WAS REGULAR ON ITS FACE AND THE RECORD DOES NOT INDICATE ANY CIRCUMSTANCES WHICH SHOULD HAVE BEEN MADE THE CONTRACTING OFFICER AWARE OF THE PROBABILITY OF AN ERROR IN THE BID. THIS WAS A SALE OF SURPLUS PROPERTY AND IT DOES NOT APPEAR THAT A BID OF $505 WHEN COMPARED WITH THE ACQUISITION COST OF $3,025 OF SUCH PROPERTY WOULD BE CONSIDERED UNREASONABLE TO ANYONE WITH AUTHORITY TO ACCEPT BIDS. FOR THESE REASONS AND SINCE ERROR WAS NOT ALLEGED BY THE BIDDER UNTIL AFTER AWARD OF THE SALE OF ITEM NO. 26, IT MUST BE HELD THAT THE CONTRACTING OFFICER WAS WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR AND THAT HIS ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH. SUCH ACCEPTANCE, THEREFORE, RESULTED IN A VALID AND BINDING CONTRACT AND VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELEASE. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR GRANTING THE RELIEF REQUESTED BY MR. PERKINS AS TO ITEM NO. 26 ON SALES CONTRACT NO. N62583S-14670.