B-147490, NOV. 30, 1961

B-147490, NOV. 30, 1961

TO MR. W. E. CORBIN, CHIEF, DIVISION OF ADMINISTRATION, BUREAU OF SPORT FISHERIES AND WILDLIFE, DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1961, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THE BID SUBMITTED BY GEORGE SILVER IN RESPONSE TO SALES INVITATION FOR BIDS NO. SFW5-159 ISSUED BY YOUR BOSTON, MASSACHUSETTS, REGIONAL OFFICE MAY BE CORRECTED IN VIEW OF AN ERROR ALLEGED TO HAVE BEEN MADE IN THE BID.

THE INVITATION REQUESTED BIDS ON THE SALE OF A USED CRANE LOCATED AT THE MISSISQUOI NATIONAL WILDLIFE REFUGE, SWANTON, VERMONT. THE EIGHT BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE OPENED ON OCTOBER 3, 1961. GEORGE SILVER SUBMITTED A BID OF $6,129.59. THE SEVEN OTHER BIDS RECEIVED ARE IN THE AMOUNTS OF $2,099.99, $1,889, $1,852, $1,501.51, $1,551.15, $481.94, AND $379.

BY LETTER DATED OCTOBER 3, 1961, RECEIVED OCTOBER 4, AND PRIOR TO ACCEPTANCE, MR. SILVER ADVISED THAT HE HAD MADE AN ERROR IN HIS BID AND HAD INTENDED TO BID $4,129.59 INSTEAD OF $6,129.59. IN RESPONSE TO A REQUEST FOR ANY EVIDENCE IN SUPPORT OF THE ALLEGED ERROR, MR. SILVER ADVISED BY LETTER OF OCTOBER 12, 1961, THAT HE DID NOT DISCUSS THE BID WITH ANYONE AS HE WAS BUYING THE MACHINE FOR HIMSELF, AND THEREFORE, HE COULD NOT FURNISH ANY EVIDENCE IN SUPPORT OF THE ERROR. THIS IS UNDERSTANDABLE SINCE THE INVITATION COVERED ONLY THE SINGLE ITEM INVOLVED AND NORMALLY NO COMPUTATION WOULD BE REQUIRED OR MADE IN THE PREPARATION OF THE BID. IN SUPPORT OF THE ERROR, MR. SILVER STATED THAT THE MACHINE WAS APPROXIMATELY 21 YEARS OLD AND THAT, WHILE HE KNEW A SIMILAR MACHINE COULD BE PURCHASED FROM ANY DEALER FOR CONSIDERABLY LESS THAN THE $4,129.59 HE INTENDED TO BID FOR IT, HE FIGURED HE WOULD RATHER PAY MORE AND BUY FROM THE GOVERNMENT AS IN MOST CASES THE EQUIPMENT IS MAINTAINED BETTER AND IS IN A BETTER OVER-ALL CONDITION. HOWEVER, IN HIS ANXIETY OF GETTING THE BID IN ON TIME OR WHATEVER ELSE WAS ON HIS MIND AT THE TIME, HE PUT DOWN A 6 INSTEAD OF A 4. MR. SILVER REQUESTED THAT THE ADJUSTMENT OF THE BID BE GRANTED IF POSSIBLE AND HE ENCLOSED A CHECK FOR THE FULL AMOUNT OF THE BID.

YOU CONFIRM THE FACT THAT THE MACHINE IS ABOUT 21 YEARS OLD, IS A DISCONTINUED MODEL, AND IS IN NEED OF EXTENSIVE REPAIRS. IT IS ALSO STATED THAT DUE TO THE AGE AND CONDITION OF THE MACHINE AND PARTICULARLY IN VIEW OF THE LARGE DIFFERENCE BETWEEN MR. SILVER'S BID AND THAT OF THE SECOND BIDDER, IT IS REASONABLE TO BELIEVE THAT MR. SILVER DID, IN FACT, MAKE AN ERROR IN HIS BID AS ALLEGED. WE AGREE AND SINCE ERROR WAS ALLEGED PRIOR TO AWARD IT IS DOUBTFUL THAT THE BID AS SUBMITTED COULD BE ACCEPTED IN GOOD FAITH SO AS TO CREATE A VALID AND BINDING CONTRACT. WHILE THE EVIDENCE IN SUPPORT OF THE INTENDED BID PRICE IS NOT TOO CONCLUSIVE, THE AMOUNT OF THE ALLEGED INTENDED BID IS STILL MORE THAN DOUBLE THE AMOUNT OF THE NEXT HIGHEST BID RECEIVED. THUS, THERE ARE THREE COURSES OF ACTION AVAILABLE: TO PERMIT THE CORRECTION OF THE BID TO $4,129.59, TO REJECT MR. SILVER'S BID ENTIRELY AND AWARD THE CONTRACT TO THE NEXT HIGHEST BIDDER, AND TO REJECT ALL BIDS AND READVERTISE. AN AWARD OF THE CONTRACT AT $2,099.99 WOULD HARDLY BE JUSTIFIED WHEN THERE IS AN OFFER IN EXCESS OF DOUBLE THAT AMOUNT AND IT WOULD APPEAR THAT A PRICE IN EXCESS OF $4,129.59 WOULD NOT BE RECEIVED UPON READVERTISING WERE ALL BIDS REJECTED. UNDER THE CIRCUMSTANCES AND SINCE MR. SILVER WOULD NOT BE GIVEN AN UNFAIR ADVANTAGE OVER OTHER BIDDERS, THE BID OF MR. SILVER MAY BE CORRECTED TO READ $4,129.59 AND THE AWARD MADE ON THAT BASIS AS RECOMMENDED.