B-143068, JUN. 29, 1960

B-143068: Jun 29, 1960

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED MAY 31. N216S-22577 IS BASED. THE ORIGINAL ACQUISITION COST OF WHICH IS REPORTED TO HAVE BEEN $15. THE CORPORATION WAS NOTIFIED THAT IT HAD BEEN AWARDED ITEM NO. 60. OF ITEM 60 AND THAT THE ERROR OCCURRED WHEN IT WAS TRANSFERRING ITS BID PRICE FROM THE DESCRIPTIVE PORTION OF THE INVITATION TO THE BID SHEET. WAS HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM NO. 60. IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION ON THAT ITEM. WAS IN GOOD FAITH. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER.

B-143068, JUN. 29, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED MAY 31, 1960, WITH ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH CLEMMONS TRUCK PARTS, INC., ALLEGES IT MADE IN ITS BID ON WHICH SALES CONTRACT NO. N216S-22577 IS BASED.

THE U.S. NAVAL AIR STATION, CORPUS CHRISTI, TEXAS, BY SALES INVITATION NO. B-35-60-216, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, ONE LOT OF USED, UNUSED, AND RECAPPED AIRCRAFT TIRES AND TUBES, THE ORIGINAL ACQUISITION COST OF WHICH IS REPORTED TO HAVE BEEN $15,631.80, ITEM 60. IN RESPONSE CLEMMONS TRUCK PARTS, INC., SUBMITTED A BID DATED MARCH 22, 1960, OFFERING TO PURCHASE ITEM 60 FOR THE SUM OF $2,017.59. ON MARCH 25, 1960, THE CORPORATION WAS NOTIFIED THAT IT HAD BEEN AWARDED ITEM NO. 60.

BY LETTER DATED MARCH 28, 1960, THE CORPORATION ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT HAD INTENDED TO BID ON ITEM 61, COVERING AIRCRAFT TIRES, INSTEAD OF ITEM 60 AND THAT THE ERROR OCCURRED WHEN IT WAS TRANSFERRING ITS BID PRICE FROM THE DESCRIPTIVE PORTION OF THE INVITATION TO THE BID SHEET. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED ITS WORKSHEET. IT APPEARS TO BE A COPY OF A CONTINGENT SALES CONTRACT FORM USED BY THE CORPORATION. THE WORKSHEET INDICATES A BID OF $2,017.59 FOR ITEM 61; HOWEVER, NO QUOTATION APPEARS FOR ITEM NO. 60.

THE LIST OF BIDS SHOWS THAT THE THREE OTHER BIDDERS ON ITEM NO. 60 QUOTED PRICES RANGING FROM $692.90 TO $90.58. ALTHOUGH THE BID OF CLEMMONS TRUCK PARTS, INC., WAS HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM NO. 60, IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION ON THAT ITEM. 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. SEE UNITED STATES. V. SABIN METAL CORPORATION, 151 F.SUPP. 683, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388, AND ID 601. SEE, ALSO, 16 COMP. GEN. 976; 28 ID. 261; AND ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF CLEMMONS TRUCK PARTS, INC., WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. SEE UNITED STATES. V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED IN ITS LETTER OF MARCH 28, 1960, CLEMMONS TRUCK PARTS, INC., INADVERTENTLY INSERTED THE PRICE INTENDED FOR ITEM NO. 61 OPPOSITE ITEM NO. 60, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID OF THE CORPORATION WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

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