B-143148, JUL. 5, 1960

B-143148: Jul 5, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED JUNE 9. IS BASED. THE COMPANY'S BID WAS ACCEPTED FOR 200 MAGNETOS. THE CONTRACTOR ADVISED THE NAVAL AIR STATION THAT THE BID PLACED AGAINST ITEM NO. 1 WAS ON THE WRONG ITEM. EXPLANATION WAS GIVEN AS TO HOW THE ERROR OCCURRED OR AS TO WHICH ITEM THE COMPANY INTENDED TO BID UPON. THE ABSTRACT OF BIDS SHOWS THAT 11 HIGHER BIDS WERE RECEIVED AND ACCEPTED FOR VARIOUS NUMBERS OF MAGNETOS UNDER ITEM NO. 1 RANGING FROM $3.33 TO $12.66 EACH. ERROR WAS NOT APPARENT ON THE FACE OF THE BID OF WICHITA WHOLESALE DISTRIBUTING COMPANY. THE FACT THAT 11 HIGHER BIDS WERE RECEIVED FOR THIS ITEM NEGATIVES ANY REASON TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE BID.

B-143148, JUL. 5, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JUNE 9, 1960, WITH ENCLOSURES, FILE R11.2, 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 WICHITA WHOLESALE DISTRIBUTING COMPANY, INC., ALLEGES IT MADE ON ITEM 1 OF ITS BID ON WHICH SALES CONTRACT NO. N204S-36481, DATED APRIL 22, 1960, IS BASED.

THE SUPPLY DEPARTMENT, U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA, BY INVITATION NO. B52-60-204, DATED MARCH 15, 1960, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF SURPLUS PROPERTY OFFERED FOR SALE ON AN "ANY OR ALL" BASIS FOR EACH ITEM. IN RESPONSE THERETO, WICHITA WHOLESALE DISTRIBUTING COMPANY SUBMITTED A BID DATED MARCH 26, 1960, OFFERING TO PURCHASE 200 OF THE 2,683 MAGNETOS OFFERED FOR SALE UNDER ITEM NO. 1 FOR $2.78 EACH. THE COMPANY'S BID WAS ACCEPTED FOR 200 MAGNETOS.

BY LETTER OF APRIL 26, 1960, THE CONTRACTOR ADVISED THE NAVAL AIR STATION THAT THE BID PLACED AGAINST ITEM NO. 1 WAS ON THE WRONG ITEM. EXPLANATION WAS GIVEN AS TO HOW THE ERROR OCCURRED OR AS TO WHICH ITEM THE COMPANY INTENDED TO BID UPON.

THE ABSTRACT OF BIDS SHOWS THAT 11 HIGHER BIDS WERE RECEIVED AND ACCEPTED FOR VARIOUS NUMBERS OF MAGNETOS UNDER ITEM NO. 1 RANGING FROM $3.33 TO $12.66 EACH. ERROR WAS NOT APPARENT ON THE FACE OF THE BID OF WICHITA WHOLESALE DISTRIBUTING COMPANY, AND THE FACT THAT 11 HIGHER BIDS WERE RECEIVED FOR THIS ITEM NEGATIVES ANY REASON TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE BID. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH--- NO ERROR HAVING PREVIOUSLY BEEN ALLEGED--- AND THIS CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

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 THE LETTER OF APRIL 26, 1960, WICHITA WHOLESALE DISTRIBUTING COMPANY, INC., INADVERTENTLY BID ON ITEM NO. 1, SUCH ERROR WAS DUE SOLELY TO ITS OWN OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL- -- NOT MUTUAL--- AND THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, THE MATTER SHOULD BE SETTLED IN ACCORDANCE WITH PARAGRAPH 18 OF THE GENERAL SALES TERMS AND CONDITIONS OF THE CONTRACT.