B-144230, OCT. 26, 1960

B-144230: Oct 26, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED OCTOBER 12. ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. 04-507-01/S/390-60 IS BASED. THE TOTAL ACQUISITION COST OF WHICH WAS STATED TO BE $8. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 25 (897 UNITS) AND 33 ON JUNE 24. ADVISED THAT A MISTAKE HAD BEEN MADE IN ITS BID IN THAT IT INTENDED TO BID $0.056 EACH INSTEAD OF $0.56 EACH FOR ITEM 33 AND IT STATED THAT A COMPARISON OF THE PRICES RECEIVED ON ITEM 33 WOULD SHOW THAT ITS BID PRICE WAS ERRONEOUS. THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY THE COMPANY TO INDICATE THAT THE PRICE QUOTED THEREIN FOR ITEM 33 WAS NOT AS INTENDED. WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 33.

B-144230, OCT. 26, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 12, 1960, WITH ENCLOSURES, FROM DEPUTY THE QUARTERMASTER GENERAL, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH THE OVERSEAS AGENCIES AND SHIPPING CO., LONDON, ENGLAND, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. 04-507-01/S/390-60 IS BASED.

THE SIERRA ORDNANCE DEPOT, HERLONG, CALIFORNIA, BY INVITATION NO. AVI-04- 507-S-60-26 REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, 1,780 UNUSED PISTONS, THE TOTAL ACQUISITION COST OF WHICH WAS STATED TO BE $8,366. IN RESPONSE THE OVERSEAS AGENCIES AND SHIPPING CO. SUBMITTED A BID DATED JUNE 23, 1960, OFFERING TO PURCHASE, AMONG OTHERS, ITEM 33 AT A PRICE OF $0.56 EACH OR FOR A TOTAL PRICE OF $996.80. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 25 (897 UNITS) AND 33 ON JUNE 24, 1960.

BY LETTER DATED JULY 14, 1960, THE OVERSEAS AGENCIES AND SHIPPING CO. ADVISED THAT A MISTAKE HAD BEEN MADE IN ITS BID IN THAT IT INTENDED TO BID $0.056 EACH INSTEAD OF $0.56 EACH FOR ITEM 33 AND IT STATED THAT A COMPARISON OF THE PRICES RECEIVED ON ITEM 33 WOULD SHOW THAT ITS BID PRICE WAS ERRONEOUS.

IN A LETTER DATED AUGUST 8, 1960, THE COMPANY STATED THAT THE ERROR OCCURRED WHEN ONE OF ITS DIRECTORS GAVE THE BID PRICE OVER THE TELEPHONE TO MR. CHADHA, ONE OF ITS OFFICIALS, AND THAT DUE TO A BAD CONNECTION OR IN HIS HASTE TO TAKE THE PRICE DOWN, MR. CHADHA INADVERTENTLY WROTE DOWN ON A PIECE OF PAPER A PRICE OF $0.56 INSTEAD OF $0.056 FOR ITEM 33.

THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY THE COMPANY TO INDICATE THAT THE PRICE QUOTED THEREIN FOR ITEM 33 WAS NOT AS INTENDED. THE ABSTRACT OF BIDS SHOWS THAT OF THE THREE OTHER BIDDERS ON ITEM 33, ONE BIDDER OFFERED TO PURCHASE 300 PISTONS AT $0.27 EACH, 300 PISTONS AT $0.22 EACH, AND 300 PISTONS AT $0.17 EACH; THAT THE SECOND BIDDER OFFERED TO PURCHASE 140 PISTONS AT $0.03 EACH; AND THAT THE OTHER BIDDER QUOTED A PRICE OF $0.01 EACH FOR THE ENTIRE QUANTITY OF 1,780. ALTHOUGH THE BID OF THE OVERSEAS AGENCIES AND SHIPPING CO. WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 33, 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 COMPANY, AS BIDDERS MAY BE EXPECTED TO PLACE A WIDE RANGE OF VALUES ON SURPLUS PROPERTY BASED ON INDIVIDUAL NEEDS OR OPPORTUNITIES FOR USE OR RESALE. 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, 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, 28 COMP. GEN. 261; AND ID. 550. OVERSEAS AGENCIES AND SHIPPING CO. 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 COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF THE OVERSEAS AGENCIES AND SHIPPING CO. MADE AN ERROR IN THE PRICE QUOTED ON ITEM 33, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE BIDDER TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF THE CONTRACTING OFFICER DATED SEPTEMBER 8, 1960, AND THE UNDATED STATEMENT OF DEPUTY THE QUARTERMASTER GENERAL, ARE RETURNED.