B-143597, AUG. 4, 1960

B-143597, AUG. 4, 1960

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED JULY 21, 1960, WITH ENCLOSURES, FROM THE STATE ADMINISTRATIVE OFFICER, SOIL CONSERVATION SERVICE, LITTLE ROCK, ARKANSAS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY CROCKETT MOTOR SALES, LITTLE ROCK, ARKANSAS, TO HAVE BEEN MADE IN ITS BID OPENED ON JULY 12, 1960.

SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE DECISION WILL BE ADDRESSED TO YOU. SEE 26 COMP. GEN. 993; 28 ID. 401; AND 36 ID. 513.

THE SOIL CONSERVATION SERVICE, LITTLE ROCK, ARKANSAS, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF 36 1/2-TON PICK-UP TRUCKS AND 4 PASSENGER AUTOMOBILES LOCATED AT VARIOUS SOIL CONSERVATION SERVICE WORK UNIT OFFICES IN ARKANSAS. ITEM 11 COVERED ONE 1953 DODGE 1/2-TON PICK-UP TRUCK AND AFTER THE DESCRIPTION OF THE VEHICLE THERE APPEARED THE NOTATION "THIS VEHICLE IS IN A WRECKED CONDITION.' IN RESPONSE CROCKETT MOTOR SALES SUBMITTED A BID DATED JULY 12, 1960, OFFERING TO PURCHASE THE TRUCK COVERED BY ITEM 11 AT A PRICE OF $185 AND TO PURCHASE ALL OF THE OTHER VEHICLES EXCEPT THE ONE COVERED BY ITEM 12 AT THE PRICES SET FORTH OPPOSITE EACH ITEM.

IT IS REPORTED THAT ON JULY 14, 1960, IN RESPONSE TO A TELEPHONE INQUIRY, MR. CROCKETT WAS ADVISED THAT HE WAS THE HIGH BIDDER ON ITEMS 3, 11, 39 AND 41 AND THAT ON JULY 15, 1960, MR. CROCKETT TELEPHONED ALLEGING THAT HE HAD MADE A MISTAKE IN HIS BID IN THAT HE HAD INTENDED TO BID ON ITEM 12 INSTEAD OF ITEM 11. WHILE IT IS NOT SO STATED IN THE LETTER OF JULY 21, 1960, FROM THE STATE ADMINISTRATIVE OFFICER, IT IS UNDERSTOOD INFORMALLY FROM REPRESENTATIVES OF THE SOIL CONSERVATION SERVICE THAT A NOTICE OF AWARD DATED JULY 15, 1960, WAS HANDED TO MR. CROCKETT ON JULY 20, 1960, WHEN HE VISITED THE CONTRACTING OFFICE.

IN A CONFIRMING LETTER DATED JULY 15, 1960, MR. CROCKETT STATED THAT IT WAS HIS INTENTION TO BID ON ALL OF THE VEHICLES EXCEPT THE WRECKED VEHICLE COVERED BY ITEM 11, AND THAT INSTEAD OF PLACING HIS BID PRICE OF $185 OPPOSITE ITEM 12, HE INADVERTENTLY PLACED IT OPPOSITE ITEM 11.

WE BELIEVE THE EVIDENCE IS SUFFICIENT TO ESTABLISH THAT AN ERROR WAS MADE BY CROCKETT MOTOR SALES IN ITS BID, AS ALLEGED. THE ALLEGATION OF MR. CROCKETT THAT HE DID NOT INTEND TO BID ON THE ONLY WRECKED VEHICLE ADVERTISED APPEARS TO BE SUPPORTED BY THE FACT THAT MR. CROCKETT IS A USED CAR DEALER WHO WOULD HAVE NO USE FOR A WRECKED VEHICLE.

WHILE IT IS TRUE THAT THE RESPONSIBILITY FOR THE PREPARATION OF A BID IS UPON THE BIDDER, WHO ORDINARILY MUST BEAR THE CONSEQUENCES OF AN ERROR IN THE BID UPON WHICH A CONTRACT IS BASED, THAT RULE DOES NOT ENTITLE THE GOVERNMENT TO TAKE ADVANTAGE OF A BIDDER'S ERROR WHEN, AS IN THE PRESENT CASE, IT HAS BEEN ALLEGED AND SATISFACTORILY ESTABLISHED PRIOR TO RECEIPT OF NOTICE OF AWARD. THE GENERAL RULE IS THAT THE ACCEPTANCE OF A BID WITH KNOWLEDGE OF ERROR THEREIN DOES NOT CONSUMMATE A VALID AND BINDING CONTRACT. SEE NASON COAL COMPANY V. UNITED STATES, 64 C.CLS. 526; RESTATEMENT OF THE LAW OF CONTRACTS, SECTION 503; AND WILLISTON ON CONTRACTS, SECTION 1578. ALSO, SEE MOFFETT, HODGKINS AND CLARKE COMPANY V. ROCHESTER, 178 U.S. 373; KEMP V. UNITED STATES, 38 F.SUPP. 568; ALTA ELECTRIC AND MECHANICAL COMPANY, INC. V. UNITED STATES, 90 C.CLS. 466; AND 17 COMP. GEN. 575, 576; AND 37 ID. 706, 707.

IN THE CIRCUMSTANCES ABOVE RELATED, THE ACCEPTANCE OF THE HIGH BID OF CROCKETT MOTOR SALES ON ITEM 11 WITH KNOWLEDGE OF AN ALLEGED ERROR THEREIN DID NOT CONSUMMATE A LEGAL AND BINDING CONTRACT.

ACCORDINGLY, THAT PART OF THE NOTICE OF AWARD COVERING ITEM 11 MAY BE CANCELLED WITHOUT LIABILITY TO CROCKETT MOTOR SALES.