B-147703, DEC. 22, 1961

B-147703: Dec 22, 1961

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TO CLARK SURPLUS SALES CO.: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 22. YOUR BID OF $221.60 ON ITEM 65 WAS AWARDED ON THE SUBJECT CONTRACT. YOU STATED THAT YOU MADE A MISTAKE IN YOUR BID AND THAT THE BID WAS INTENDED FOR ITEM NO. 64 INSTEAD OF ITEM NO. 65. TWO BIDS WERE RECEIVED FOR ITEM 65. PRICES OFFERED TO THE GOVERNMENT FOR ITS SURPLUS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE WHICH THE BIDDER MIGHT WISH TO TAKE. THE ALLEGED ERROR WAS NOT APPARENT ON THE FACE OF THE PROPOSAL. IT FOLLOWS THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER.

B-147703, DEC. 22, 1961

TO CLARK SURPLUS SALES CO.:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 22, 1961, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 20, 1961, WHICH DISALLOWED YOUR CLAIM FOR $113 REPRESENTING BID DEPOSIT FOR THE PURCHASE OF HYDRAULIC PARTS AND EQUIPMENT FROM THE DEPARTMENT OF THE AIR FORCE, TINKER AIR FORCE BASE, OKLAHOMA, PURSUANT TO CONTRACT NO. (34-601/62-S-181, DATED AUGUST 23, 1961.

THE CONSOLIDATED SURPLUS SALES OFFICE, TINKER AIR FORCE BASE, OKLAHOMA, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS ITEMS OF PROPERTY. YOUR BID OF $221.60 ON ITEM 65 WAS AWARDED ON THE SUBJECT CONTRACT.

IN YOUR LETTER OF SEPTEMBER 18, 1961, YOU STATED THAT YOU MADE A MISTAKE IN YOUR BID AND THAT THE BID WAS INTENDED FOR ITEM NO. 64 INSTEAD OF ITEM NO. 65. THE EVIDENCE SUBMITTED INDICATES THAT THE ERROR OCCURRED IN TRANSPORTING THE INTENDED BID FROM THE WORK COPY TO THE BID. TWO BIDS WERE RECEIVED FOR ITEM 65, YOUR BID OF $221.60 AND ANOTHER BID OF $11. BIDS ON ITEM NO. 64 RANGED UP TO $1,855.55.

IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICE BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR SUCH PROPERTY, AS WOULD A LIKE DIFFERENCE IN THE PRICE QUOTED ON NEW SUPPLIES OR EQUIPMENT TO BE FURNISHED TO THE GOVERNMENT. PRICES OFFERED TO THE GOVERNMENT FOR ITS SURPLUS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE WHICH THE BIDDER MIGHT WISH TO TAKE. SEE UNITED STATES V. SABIN METAL CORP., 151 F.SUPP. 683, 689, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388; AND ID. 601.

THE ALLEGED ERROR WAS NOT APPARENT ON THE FACE OF THE PROPOSAL, THUS THERE APPEARS NO BASIS TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE PROPOSAL. IT FOLLOWS THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER NOTICE OF THE AWARD OF THE CONTRACT. SUCH AWARD CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; 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. THE COMPANY PLACED A BID ON ITEM 65, NOT ITEM 64, AND SUCH ALLEGED ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR RELIEVING YOU OF YOUR BID.