B-144855, FEB. 23, 1961

B-144855, FEB. 23, 1961

TO PUBLIC PRINTER, GOVERNMENT PRINTING OFFICE:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18, 1961, AND LETTER OF FEBRUARY 13, 1961, FROM THE ACTING PUBLIC PRINTER, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THE AWARD TO TOMPKINS PRINTING EQUIPMENT COMPANY, CHICAGO, ILLINOIS, OF THE SALE OF CERTAIN PROPERTY PURSUANT TO BID INVITATION DATED DECEMBER 9, 1960, MAY BE CANCELED BECAUSE OF AN ERROR IN THE COMPANY'S BID ON WHICH THE AWARD WAS BASED.

IN YOUR LETTER OF JANUARY 18 YOU STATE THAT 19 BIDS WERE RECEIVED IN RESPONSE TO THE NVITATION; THAT AWARD WAS MADE TO NORTHERN MACHINERY WORKS, AS HIGH BIDDER, OF THE THREE WEBENDORFER PRESSES IN ITEMS NOS. 1, 2 AND 3 FOR A TOTAL OF $3,462.50; AND THAT AWARD WAS MADE TO TOMPKINS PRINTING EQUIPMENT COMPANY, AS HIGH BIDDER, OF THE LOT OF MISCELLANEOUS PARTS IN ITEM NO. 4 FOR $1,001. UPON RECEIPT OF NOTICE OF AWARD TO IT OF ITEM NO. 4 TOMPKINS PRINTING EQUIPMENT COMPANY IN LETTER OF JANUARY 12, 1961, TO THE PURCHASING DIVISION OF YOUR OFFICE RAISED A QUESTION AS TO THE ACCURACY OF THE AWARD, STATING THAT ITS BID OF $1,001 WAS INTENDED TO COVER THE ENTIRE LOT OF ADVERTISED EQUIPMENT, INCLUDING THE THREE 14 BY 21 PRESSES IN ITEMS NOS. 1, 2 AND 3, AS WELL AS THE MISCELLANEOUS PARTS IN ITEM NO. 4.

THE PURCHASING DIVISION OF YOUR OFFICE SOLICITED SEALED BIDS--- OPENING DATE DECEMBER 30, 1960--- FOR THE PURCHASE FROM THE GOVERNMENT OF FOUR ITEMS OF UNSERVICEABLE AND SURPLUS PROPERTY AS LISTED THEREIN. THE BID FORM CONTAINED A BID PRICE COLUMN AND OPPOSITE EACH NUMBERED ITEM THERE WAS PROVIDED A BLANK LINE ON WHICH THE BIDDER WAS TO ENTER ITS BID, IF ANY, FOR THE ITEM. PARAGRAPH 5 OF THE TERMS AND CONDITIONS OF SALE, PAGE 1 OF THE INVITATION, STATED THAT AWARD WOULD BE MADE ON THE BASIS OF EACH ITEM SEPARATELY, OR IN THE AGGREGATE, UNLESS BID WAS SPECIFICALLY SUBMITTED OTHERWISE. ITEM NO. 4 WAS CLEARLY DESCRIBED AS "ONE LOT WEBENDORFER 14 BY 20 INCH PRESS PARTS" WITH THE TYPE OF PARTS AND THE QUANTITY OF EACH TYPE BEING LISTED IN THE DESCRIPTION. ALSO, AT THE BOTTOM OF THE DESCRIPTION OF ITEM NO. 4, OPPOSITE THE BLANK SPACE IN THE BID PRICE COLUMN, THERE IS A LINE READING "FOR THE LOT .......;,

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. THE INVITATION WAS CLEAR AND UNAMBIGUOUS, AND IT SEEMS TO US THAT ONLY A CASUAL EXAMINATION OF THE ADVERTISEMENT WOULD HAVE MADE A BIDDER AWARE AS TO WHAT WAS BEING OFFERED AND HOW ITS BID SHOULD BE PREPARED. CONSEQUENTLY, IF TOMPKINS COMPANY INTENDED THE QUOTATION MADE ON LOT NO. 4 TO BE AN ALL OR NONE QUOTATION FOR THE MATERIALS DESCRIBED IN ITEMS NOS. 1, 2 AND 3 AND 4, AS ALLEGED, IT SHOULD HAVE SO STATED. ITS ERROR IN FAILING TO DO SO WAS DUE SOLELY TO THE COMPANY'S OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY SUCH ERROR WAS UNILATERAL--- NOT MUTUAL--- AND WOULD NOT ENTITLE THE COMPANY TO ANY RELIEF.

WHILE IT MAY BE THAT TOMPKINS COMPANY MADE AN ERROR IN ITS BID THE BASIC QUESTION FOR CONSIDERATION IS NOT WHETHER THE COMPANY MADE A MISTAKE IN ITS BID BUT WHETHER THE ACCEPTANCE OF THE BID BY THE CONTRACTING OFFICER CONSUMMATED A VALID AND BINDING CONTRACT. ACCEPTANCE OF A BID CONSUMMATES A VALID AND BINDING CONTRACT UNLESS THE OFFICER ACCEPTING THE BID WAS ON NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH CIRCUMSTANCES AS WOULD MAKE HIS ACCEPTANCE AN ACT OF BAD FAITH. MOFFETT, HODGKINS AND CLARK COMPANY V. ROCHESTER, 178 U.S. 373.

ALTHOUGH THE BID OF THE COMPANY WAS CONSIDERABLY HIGHER THAN THE NEXT HIGH BID SUBMITTED ON ITEM NO. 4, THAT FACT ALONE WOULD NOT BE SUFFICIENT TO CHARGE THE CONTRACTING OFFICER WITH NOTICE OF ERROR IN ITS BID. VIEW OF THE WIDE RANGE OF BIDS ORDINARILY RECEIVED ON GOVERNMENT SURPLUS PROPERTY--- BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR THE CHANCE IT MIGHT WISH TO TAKE OF RESALE THEREOF--- 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 N THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED THE GOVERNMENT. 26 COMP. GEN. 550, 551; ALSO, UNITED STATES V. SABIN METAL CORPORATION, 151 F. 683, 689.

FOR THESE REASONS, AND SINCE THE BID OF TOMPKINS COMPANY WAS REGULAR ON ITS FACE AND SINCE NO ERROR WAS ALLEGED BY THE BIDDER UNTIL AFTER AWARD OF THE SALE CONTRACT, IT MUST BE HELD THAT THE CONTRACTING OFFICER WAS WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR AND THAT HIS ACCEPTANCE OF THE BID WAS IN GOOD FAITH. SUCH ACCEPTANCE, THEREFORE, RESULTED IN A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO AND VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELEASE. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR CANCELING THE AWARD TO TOMPKINS PRINTING EQUIPMENT COMPANY OF THE SALE CONTRACT AWARDED TO IT PURSUANT TO BID INVITATION DATED DECEMBER 9, 1960.

THE ENCLOSURES FORWARDED WITH THE LETTERS OF JANUARY 18 AND FEBRUARY 13, 1961, ARE RETURNED, AS REQUESTED.