B-145596, AUG. 9, 1961

B-145596: Aug 9, 1961

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LIMITED: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 25. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR 2. WAS ACCEPTED ON JULY 27. YOU STATE THAT YOU WERE INFORMED BY PERSONNEL OF THE NAVY AT THE SITE THAT. THERE WERE INCLUDED CERTAIN BUILDINGS AND BARRACKS IN THE LOCALITY. 000 POUNDS OF STEEL SCRAP WAS MADE WITH THE THOUGHT THAT THE 11 BUILDINGS AND BARRACKS WERE INCLUDED IN THE PURCHASE. THE INVITATION FOR BIDS DOES NOT HINT OR INDICATE IN ANY WAY THAT 11 BUILDINGS WERE INCLUDED IN ITEM NO. 1. THE ONLY THING OFFERED FOR SALE UNDER ITEM 1 WAS APPROXIMATELY 1. THE CONTRACTING OFFICER ADVISED THAT THERE WAS NO EVIDENCE THAT HE OR ANY MEMBER OF HIS STAFF ADVISED YOU THAT THE 11 BUILDINGS INVOLVED WERE INCLUDED IN ITEM NO. 1.

B-145596, AUG. 9, 1961

TO TAISEI SHOJI COMPANY, LIMITED:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 25, 1961, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 15, 1961, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR 2,200,000 YEN REPRESENTING AN ADJUSTMENT IN THE PRICE BID ON LOT 1 UNDER INVITATION NO. B-268-60-62649, DATED JUNE 28, 1960, ISSUED BY THE UNITED STATES DEPARTMENT OF THE NAVY, NAVAL SUPPLY DEPOT, YOKOSUKA, JAPAN.

IN RESPONSE TO THE INVITATION YOU OFFERED TO PURCHASE ITEM 1, DESCRIBED AS ONE LOT CONSISTING OF MARSTON STEEL MATTING, WEIGHING APPROXIMATELY1,880,000 POUNDS, FOR THE TOTAL AMOUNT OF 14,643,000 YEN. YOUR BID BEING THE HIGHEST BID RECEIVED, WAS ACCEPTED ON JULY 27, 1960.

YOU STATE THAT YOU WERE INFORMED BY PERSONNEL OF THE NAVY AT THE SITE THAT, IN ADDITION TO THE STEEL MATTING ADVERTISED, THERE WERE INCLUDED CERTAIN BUILDINGS AND BARRACKS IN THE LOCALITY. YOU ALLEGE THAT YOUR BID PRICE FOR 1,880,000 POUNDS OF STEEL SCRAP WAS MADE WITH THE THOUGHT THAT THE 11 BUILDINGS AND BARRACKS WERE INCLUDED IN THE PURCHASE.

THE INVITATION FOR BIDS DOES NOT HINT OR INDICATE IN ANY WAY THAT 11 BUILDINGS WERE INCLUDED IN ITEM NO. 1. THE ONLY THING OFFERED FOR SALE UNDER ITEM 1 WAS APPROXIMATELY 1,880,000 POUNDS OF MARSTON STEEL MATTING. THE CONTRACTING OFFICER ADVISED THAT THERE WAS NO EVIDENCE THAT HE OR ANY MEMBER OF HIS STAFF ADVISED YOU THAT THE 11 BUILDINGS INVOLVED WERE INCLUDED IN ITEM NO. 1. PARAGRAPH 12 OF THE GENERAL SALE TERMS AND CONDITIONS, MADE A PART OF THE INVITATION FOR BIDS, PROVIDES THAT ANY STATEMENT BY ANY REPRESENTATIVE OF THE GOVERNMENT, MODIFYING OR CHANGING ANY CONDITIONS OF THE CONTRACT, IS AN EXPRESSION OF OPINION ONLY AND CONFERS NO RIGHT UPON THE PURCHASER. EVEN IF YOU WERE ADVISED, AS ALLEGED, THAT THE LOT OFFERED FOR SALE INCLUDED THE 11 BUILDINGS, THE GOVERNMENT CANNOT BE HELD LIABLE UNDER THE TERMS OF THE CONTRACT.

YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 CT.CL. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT.CL. 584, CERTIORARI DENIED 292 U.S. 645.