B-142773, MAY 31, 1960

B-142773: May 31, 1960

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TO SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED MAY 2. INCLUDED THEREIN AS ITEM 122 WERE VEHICLE ACCESSORIES DESCRIBED AS FOLLOWS: "VEHICLE ACCESSORIES. ON ITEM 122 WAS MUCH HIGHER THAN THE OTHER BIDS RECEIVED ON THAT ITEM AND NEARLY EQUAL TO THE AMOUNT OF THE ACQUISITION COST. BERNS WAS REQUESTED BY TELEPHONE. IT IS ALSO REPORTED THAT AT 7:30 A.M. LETTER OF AWARD ON ITEM 122 WAS MAILED TO MR. BERNS STATED THAT HE HAD MISINTERPRETED THE DESCRIPTION OF THE PROPERTY OFFERED UNDER ITEM 122 AND THAT FROM THE DESCRIPTION HE ASSUMED THAT "HAND BRAKE LEVERS" WERE BEING OFFERED FOR SALE AND THAT HE DID NOT NOTICE THAT A "CAM". WHICH IS ATTACHED TO THE LEVER. - WAS THE ITEM ACTUALLY BEING OFFERED FOR SALE.

B-142773, MAY 31, 1960

TO SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED MAY 2, 1960, WITH ENCLOSURE, FILE AFMPP-PR-3, FROM THE DIRECTORATE, PROCUREMENT AND PRODUCTION, REQUESTING A DECISION AS TO WHETHER THE BERNS CO. MAY BE RELEASED FROM ITS OBLIGATION TO PURCHASE AN ITEM OF SURPLUS PROPERTY SOLD TO IT UNDER NATIONAL SPOT BID SALE 60-47X, CONDUCTED BY THE MEMPHIS AIR FORCE DEPOT, MALLORY AIR FORCE STATION, MEMPHIS, TENNESSEE.

BY INVITATION TO BID ISSUED FEBRUARY 19, 1960 (NATIONAL SPOT BID SALE 60- 47X), THE MEMPHIS AIR FORCE DEPOT REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF 164 ITEMS OF SURPLUS PROPERTY. INCLUDED THEREIN AS ITEM 122 WERE VEHICLE ACCESSORIES DESCRIBED AS FOLLOWS:

"VEHICLE ACCESSORIES; CAMS, HAND BRAKE LEVER P/N 202242 CLARK EQUIPMENT CO. APPL MOD. PL TRACTOR. APPRX. 236 EACH. WHEEL ASSY, STEERING AXLE P/N ACE 241 CLARK EQUIPMENT CO. APPL. MOD. CE TRUCK. APPRX. 18 EACH (CONDITION: UNUSED, APPARENTLY GOOD) PACKED IN 2 BOXES AND 2 CARTONS. PALLET BLDG. 3A ROW 164 1 LOT

APPRX. WT. 197 LBS.

TOTAL COSTS: $276.64"

THE BERNS CO. SUBMITTED A LOT PRICE OF $251.99 FOR ITEM 122. THE THREE OTHER BIDDERS ON ITEM 122 QUOTED LOT PRICES OF $5.97, $4.09, AND $1.95.

IN HIS REPORT THE CONTRACTING OFFICER STATES THAT SINCE THE BID OF THE BERNS CO. ON ITEM 122 WAS MUCH HIGHER THAN THE OTHER BIDS RECEIVED ON THAT ITEM AND NEARLY EQUAL TO THE AMOUNT OF THE ACQUISITION COST, MR. BERNS WAS REQUESTED BY TELEPHONE, ON MARCH 17, 1960, TO VERIFY HIS BID ON THAT ITEM AND THAT MR. BERNS VERIFIED THE BID PRICE WITHOUT HESITATION. IT IS ALSO REPORTED THAT AT 7:30 A.M. ON MARCH 18, 1960, LETTER OF AWARD ON ITEM 122 WAS MAILED TO MR. BERNS AND THAT AT APPROXIMATELY 1:15 P.M. ON THE SAME DAY, MR. BERNS TELEPHONED ALLEGING THAT HE HAD ERRONEOUSLY INTERPRETED THE DESCRIPTIVE DATA RELATIVE TO ITEM 122 AND THAT HE REQUESTED THAT HE BE PERMITTED TO WITHDRAW HIS BID ON THAT ITEM. IN AN AFFIDAVIT, MR. BERNS STATED THAT HE HAD MISINTERPRETED THE DESCRIPTION OF THE PROPERTY OFFERED UNDER ITEM 122 AND THAT FROM THE DESCRIPTION HE ASSUMED THAT "HAND BRAKE LEVERS" WERE BEING OFFERED FOR SALE AND THAT HE DID NOT NOTICE THAT A "CAM"--- A SMALL PART OF THE HAND BRAKE, WHICH IS ATTACHED TO THE LEVER--- WAS THE ITEM ACTUALLY BEING OFFERED FOR SALE.

IT APPEARS FROM THE LIST OF BIDS IN THE CONTRACTING OFFICER'S REPORT THAT THE THREE OTHER BIDS RECEIVED FOR ITEM 122 WERE IN THE AMOUNTS OF $5.97, $4.09, AND $1.95, AS COMPARED TO THE COMPANY'S BID OF $251.99. IT IS APPARENT WHY THE CONTRACTING OFFICER FELT CALLED UPON TO REQUEST VERIFICATION OF THE BID. IT IS THE GENERAL RULE THAT A BIDDER MAY NOT BE RELIEVED FROM THE CONSEQUENCES OF AN INCORRECT BID, ONCE HE HAS BEEN AFFORDED THE OPPORTUNITY OF CONFIRMING HIS ORIGINAL QUOTATION PRIOR TO AWARD. HOWEVER, THE FACTS IN THE INSTANT MATTER APPEAR TO MAKE THIS CASE AN EXCEPTION TO THE GENERAL RULE. THERE IS NO SHOWING THAT THE BIDDER WAS ADVISED THAT THE OTHER BIDS WERE IN ONLY NOMINAL AMOUNTS, OR THAT ITS ATTENTION WAS DIRECTED TO THE GOVERNMENT'S COST. IN OTHER WORDS, IT IS NOT CLEAR THAT THE ENTIRE PICTURE WAS BROUGHT TO THE BIDDER'S ATTENTION. IT SEEMS REASONABLE TO ASSUME THAT HAD THIS BEEN DONE THE BIDDER WOULD HAVE DISCOVERED THE ALLEGED ERROR PRIOR TO AWARD. IN THE CIRCUMSTANCES, WE CONCLUDE THAT THE ACCEPTANCE OF THE BID, EVEN AFTER VERIFICATION, SHOULD NOT BE REGARDED AS BINDING. ACCORDINGLY, SINCE ERROR WAS ALLEGED BY THE BERNS CO. ALMOST SIMULTANEOUSLY WITH THE ACCEPTANCE OF ITS BID, AND APPARENTLY BEFORE IT BECAME AWARE OF THE ACCEPTANCE OF ITS BID, THE COMPANY MAY BE RELEASED FROM LIABILITY UNDER THE BID.

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