B-144233, OCT. 25, 1960

B-144233, OCT. 25, 1960

TO THE SECRETARY OF THE ARMY:

WE REFER TO A LETTER OF OCTOBER 12, 1960, WITH ENCLOSURES, FROM DEPUTY THE QUARTERMASTER GENERAL, ON BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR P. L. BARIS AUTO CAR AND CRANE TRADING COMPANY ALLEGES IT MADE IN ITS BID ON ITEM NO. 23, UPON WHICH CONTRACT NO. O. I. NR 1382 WAS AWARDED.

BY INVITATION NO. DA-EUC-91-569-S-60-46, ISSUED ON MARCH 4, 1960, THE UNITED STATES ARMY GENERAL DEPOT, KAISERSLAUTERN, GERMANY, SOLICITED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF 29 ITEMS OF SURPLUS GOVERNMENT PERSONAL PROPERTY, INCLUDING ITEM NO. 23, A USED RECIPROCATING COMPRESSOR, ACQUISITION COST $5,527. THE BIDS WERE OPENED ON MARCH 30, 1960, AND OF TWELVE BIDS RECEIVED ON ITEM NO. 23, THE HIGH BID AS TO PRICE WAS SUBMITTED BY THE FIRM OF P. L. BARIS IN THE AMOUNT OF $1,459. THE ABSTRACT OF BIDS SHOWS THAT THE OTHER BIDS ON ITEM NO. 23 RANGED FROM A HIGH OF $561 TO A LOW OF $80. CONTRACT NO. O. I. NR. 1382, WHICH INCLUDED ITEM NO. 23 AT THE BID PRICE OF $1,459, WAS AWARDED TO P. L. BARIS ON MARCH 31, 1960.

UNDER THE TERMS OF THE CONTRACT, REMOVAL OF THE EQUIPMENT WAS TO BE ACCOMPLISHED WITHIN 20 DAYS AFTER AWARD. THE CONTRACTOR REMOVED THE PROPERTY AND MADE FULL PAYMENT. HOWEVER, THE CONTRACTOR ALLEGED THAT IT HAD MADE AN ERROR WITH RESPECT TO ITEM NO. 23 IN THAT IT INTENDED A BID OF $459 BUT, DUE TO AN OVERSIGHT, INCORRECTLY TRANSCRIBED THE AMOUNT AS $1,459 ON THE BID FORM.

THE PROPERTY DISPOSAL OFFICER REPORTS THAT PRIOR TO THE DATE OF AWARD ON MARCH 31, 1960, HE WAS VERBALLY NOTIFIED BY THE CONTRACTOR THAT IT HAD COMMITTED AN ERROR IN ITS BID ON ITEM NO. 23. HE FURTHER REPORTS THAT PAST EXPERIENCE INDICATES THAT PROPERTY SIMILAR TO ITEM NO. 23 SELLS FOR AN AVERAGE OF 10 PERCENT OF ACQUISITION VALUE, AS COMPARED TO THE 26.3 PERCENT OF ACQUISITION VALUE PAID BY THE CONTRACTOR. ON THE ABOVE FACTS HE RECOMMENDS THAT THE CONTRACTOR BE REIMBURSED THE DIFFERENCE BETWEEN THE SECOND HIGHEST BID OF $561 AND $1,459, IN ACCORDANCE WITH ITS REQUEST.

THE EVIDENCE HERE INDICATES THAT THE CONTRACTOR MADE AN ERROR IN ITS BID. ASIDE FROM ANY NOTICE OF ERROR WHICH MIGHT BE IMPUTED TO THE PROPERTY DISPOSAL OFFICER FROM THE UNUSUALLY HIGH BID SUBMITTED BY THE CONTRACTOR, IT IS REPORTED THAT HE HAD ACTUAL NOTICE OF THE ERROR PRIOR TO HIS ACCEPTANCE OF THE BID AND AWARD OF THE CONTRACT. UNDER SUCH CIRCUMSTANCES, A VALID AND BINDING CONTRACT WAS NOT CONSUMMATED BY THE ACCEPTANCE OF THE CONTRACTOR'S BID ON ITEM NO. 23. SEE 36 COMP. GEN. 641.

SINCE DELIVERY HAS BEEN ACCOMPLISHED AND PAYMENT MADE FOR ITEM, THE PRICE MAY BE ADJUSTED TO THE AMOUNT OF THE NEXT HIGHEST BID RECEIVED ON THE ITEM, AS ADMINISTRATIVELY RECOMMENDED, AND APPROPRIATE REFUND MADE TO THE CONTRACTOR.