B-144556, DEC. 30, 1960

B-144556, DEC. 30, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 29, 1960, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY THE EAST BAY IRON AND METAL CO. TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. N228S-46610 IS BASED.

THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, FIVE TAIL ASSEMBLIES AND FOUR SHELL ASSEMBLIES, THE ORIGINAL ACQUISITION COST OF WHICH IS REPORTED TO HAVE BEEN $163.44 EACH, ITEM 11. IN RESPONSE THE EAST BAY IRON AND METAL CO. SUBMITTED A BID DATED JULY 22, 1960, OFFERING TO PURCHASE, AMONG OTHERS, ITEM 11 AT A PRICE OF $41.66 EACH. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEM 11 AND OTHER ITEMS ON AUGUST 5, 1960.

BY LETTER DATED SEPTEMBER 7, 1960, THE EAST BAY IRON AND METAL CO. ALLEGED THAT ITS SECRETARY, IN TYPING THE BID FROM THE WORKSHEET, ERRONEOUSLY PLACED THE BID INTENDED FOR ITEM 10 IN THE SPACE FOR ITEM 11 ON THE BID SHEET; THAT THE COMPANY IS A DEALER IN NON-FERROUS METAL ONLY; THAT ITEM 11 CONSISTS OF IRON WHEREAS ITEM 10 CONSISTS OF NON FERROUS METAL; AND THAT THE MISTAKE WAS NOT DISCLOSED UNTIL THE COMPANY'S TRUCK DELIVERED THE MATERIAL AT ITS PLANT. THE COMPANY REQUESTED THAT IT BE PERMITTED TO RETURN THE MATERIAL COVERED BY ITEM 11. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED ITS WORKSHEET, A COPY OF THE SALES INVITATION, WHICH SHOWS THAT NOTATIONS WERE MADE IN THE SPACE UNDER THE DESCRIPTION OF ALL ITEMS BID UPON, INCLUDING ITEM 11, SHOWING THE UNIT AND TOTAL PRICES BID, AND IN SOME INSTANCES THE TYPE OF METAL CONTAINED IN THE ITEM; THAT THE ONLY NOTATION UNDER THE DESCRIPTION OF ITEM 10 IS "HARRISON COOLERS--- IRONY RO," NO UNIT OR TOTAL PRICE BEING SHOWN; AND THAT THE NOTATION UNDER THE DESCRIPTION OF ITEM 11 IS "IRON" AND SHOWS A UNIT PRICE OF $41.66 AND A TOTAL PRICE OF $374.94, WHICH WERE THE UNIT AND TOTAL PRICES BID ON THIS ITEM. THE WORKSHEET ALSO SHOWS THAT MOST OF THE ITEMS BID UPON CONTAINED MIXED METAL AND THAT AT LEAST ONE ITEM BID UPON CONTAINED ONLY FERROUS METAL.

THE CONTRACTING OFFICER'S REPORT SHOWS THAT THE TWO OTHER BIDS ON ITEM 11 WERE IN THE AMOUNTS OF $4 EACH AND $0.69 EACH. ALTHOUGH THE BID OF THE EAST BAY IRON AND METAL CO. WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 11, 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 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, 17 COMP. GEN. 976; 28 ID. 261; AND ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF THE EAST BAY IRON AND METAL 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 CO. V. UNITED STATES, 100 CT.CL. 120, 163. IF, AS STATED IN ITS LETTER OF SEPTEMBER 7, 1960, THE EAST BAY IRON AND METAL CO. INADVERTENTLY INSERTED THE PRICE INTENDED FOR ITEM 10 OPPOSITE ITEM 11, 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 COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 507.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT DATED NOVEMBER 9, 1960 ARE RETURNED.