B-147278, JAN. 16, 1962

B-147278, JAN. 16, 1962

TO MR. DAVID E. FISHER:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED DECEMBER 31, 1961, WITH ENCLOSURES, IN REFERENCE TO OUR DECISION DATED OCTOBER 13, 1961, TO THE SECRETARY OF THE NAVY, WHEREIN WE FOUND NO LEGAL BASIS FOR GRANTING THE RELIEF SOUGHT BY YOU UNDER NAVY SALE CONTRACT NO. N63068S-51320, DATED AUGUST 2, 1961.

THE CONTRACT WAS EFFECTED WHEN THE CONSOLIDATED SURPLUS SALES OFFICE, OAKLAND NAVAL SUPPLY CENTER, ACCEPTED YOUR BID FOR THE PURCHASE OF ITEM NO. 47A--- AN ALTERNATE ITEM THAT INCLUDED ITEMS NOS. 45, 46 AND 47--- COVERING 1,428 PAIRS OF GYMNASIUM SHOES AT $0.70 A PAIR, OR FOR A TOTAL PRICE OF $999.60. AFTER RECEIPT OF THE AWARD YOU ADVISED THE GOVERNMENT CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE IN YOUR BID, IN THAT YOU WERE UNDER THE IMPRESSION THAT ITEM NO. 47A COVERED SERVICE SHOES INSTEAD OF GYMNASIUM SHOES. YOU THEREFORE REQUESTED TO BE RELIEVED OF THE AWARD.

IN YOUR LETTER OF DECEMBER 31, 1961, YOU ADVISE THAT THE SUBJECT ERROR IN YOUR BID WAS BASED SIMPLY ON MISTAKEN IDENTITY OF THE MATERIAL ON WHICH YOU BID. YOU TAKE THE POSITION THAT SINCE ERRORS AND CHANGES IN MATERIALS TO BE ADVERTISED FOR BIDS ARE NOT INFREQUENT ON THE PART OF THE GOVERNMENT, AS FORMS FURNISHED BY YOU ALLEGEDLY SHOW, IT APPEARS THAT ERRORS IN BIDS OF THIS NATURE ARE TO BE EXPECTED. IN VIEW OF THIS, YOU FURTHER SEEK TO HAVE YOUR CLAIM OF ERROR UPHELD.

THE SOLE QUESTION FOR CONSIDERATION IN THIS TYPE OF CASE IS NOT WHETHER AN ERROR WAS, IN FACT, MADE IN YOUR BID ON ITEM NO. 47A, BUT WHETHER THERE EXISTED ANY CIRCUMSTANCES THAT ESTABLISHED NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, TO THE GOVERNMENT CONTRACTING OFFICER AS TO THE PROBABILITY OF ERROR PRIOR TO AWARD. OBVIOUSLY THERE WAS NO ACTUAL NOTICE TO THE CONTRACTING OFFICER OF THE ERROR IN YOUR BID. REGARDING THE EXISTENCE OF CONSTRUCTIVE NOTICE, IT WAS STATED IN OUR DECISION OF OCTOBER 13, 1961, TO THE SECRETARY OF THE NAVY, THAT THE FACT YOUR UNIT BID PRICE ON ITEM NO. 47A WAS CONSIDERABLY HIGHER THAN YOUR INDIVIDUAL QUOTATIONS ON ITEMS NOS. 45, 46 AND 47, THAT WERE INCLUDED WITHIN ALTERNATE ITEM NO. 47A, MAY NOT BE ACCEPTED AS THE BASIS OF SUCH CONSTRUCTIVE NOTICE, SINCE THE UNIT PRICES SUBMITTED BY YOU ON SEVERAL OTHER ALTERNATE ITEM NUMBERS COVERING SHOES WERE ALSO COMPARABLY HIGHER THAN THE UNIT PRICES QUOTED BY YOU FOR THE INDIVIDUAL ITEMS COMPRISING THE SUBJECT ALTERNATE ITEMS. THERE ALSO WAS STATED IN OUR DECISION TO THE SECRETARY THE PRINCIPLE CONSISTENTLY FOLLOWED BY OUR OFFICE THAT THE EXISTENCE OF PRICE DIFFERENTIALS DOES NOT, IN AND OF ITSELF, PROVIDE A BASIS FOR ESTABLISHING CONSTRUCTIVE NOTICE OF PROBABLE ERROR IN VIEW OF THE WIDE VARIANCE IN BIDS GENERALLY RECEIVED IN SALES OF GOVERNMENT SURPLUS PROPERTY. IN VIEW OF THESE DETERMINATIONS, AND SINCE THERE WERE FOUND NO OTHER CIRCUMSTANCES ATTENDING THE SUBMISSION OF YOUR BID THAT SHOULD HAVE ALERTED THE CONTRACTING OFFICER TO THE PROBABILITY OF AN ERROR THEREIN, WE MUST AFFIRM OUR PREVIOUS CONCLUSION THAT THE CONTRACTING OFFICER'S ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR GRANTING YOU ANY RELIEF IN THE MATTER.