B-147889, JAN. 22, 1962

B-147889: Jan 22, 1962

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED JANUARY 5. THOMAS MACHINERY COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH SALES CONTRACT NO. N63068S-52798 IS BASED. PROSPECTIVE BIDDERS WERE REQUESTED TO ENTER THEIR BID PRICES ON THE SUMMARY BID SHEET INSTEAD OF OPPOSITE THE DESCRIPTION OF EACH ITEM. IT INDICATED IT WAS BIDDING ON ITEMS 5. 16 AND 24 AND THAT FOR THE TWO MACHINES COVERED BY ITEMS 14 AND 16 IT WAS QUOTING PRICES OF $327 AND $721. THOMAS MACHINERY COMPANY ON ITEM 16 WAS MORE THAN FIVE TIMES HIGHER THAN THE NEXT HIGH BID ON THAT ITEM AND THAT THE COMPANY HAD CIRCLED ITEMS 13 AND 15 ON ITS BID. THE COMPANY WAS REQUESTED BY TELEPHONE ON DECEMBER 13. HE STATED THAT ITEMS 14 AND 16 WERE CORRECT.

B-147889, JAN. 22, 1962

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 5, 1962, WITH ENCLOSURES, FILE REFERENCE R11.4, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR ALLEGED BY FRANK J. THOMAS MACHINERY COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH SALES CONTRACT NO. N63068S-52798 IS BASED.

THE CONSOLIDATED SURPLUS SALES OFFICE, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, BY INVITATION NO. B-78-62-63068 REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS MACHINE TOOLS AND SHOP EQUIPMENT. PROSPECTIVE BIDDERS WERE REQUESTED TO ENTER THEIR BID PRICES ON THE SUMMARY BID SHEET INSTEAD OF OPPOSITE THE DESCRIPTION OF EACH ITEM. IN RESPONSE THE FRANK J. THOMAS MACHINERY COMPANY, CANOGA PARK, CALIFORNIA, SUBMITTED A BID IN WHICH, ON THE BIDDER'S SUMMARY SHEET, IT INDICATED IT WAS BIDDING ON ITEMS 5, 7, 8, 14, 16 AND 24 AND THAT FOR THE TWO MACHINES COVERED BY ITEMS 14 AND 16 IT WAS QUOTING PRICES OF $327 AND $721, RESPECTIVELY. ITEM 14 COVERED ONE DALZEN THREAD GRINDER AND ITEM 16 COVERED ONE AMERICAN MACHINE AND FOUNDRY COMPANY LATHE. THE LIST OF BIDS SHOWS THAT THE FIVE OTHER BIDDERS ON ITEM 14 QUOTED PRICES RANGING FROM $125 TO $24 AND THAT FOR ITEM 16, SIX OTHER BIDDERS QUOTED PRICES RANGING FROM $141 TO $10.

IN HIS REPORT THE CONTRACTING OFFICER STATES THAT, PRIOR TO AWARD,HE NOTED THAT THE BID OF THE FRANK J. THOMAS MACHINERY COMPANY ON ITEM 16 WAS MORE THAN FIVE TIMES HIGHER THAN THE NEXT HIGH BID ON THAT ITEM AND THAT THE COMPANY HAD CIRCLED ITEMS 13 AND 15 ON ITS BID, BUT THAT IT PLACED ITS BID ON THE LINES FOR ITEMS 14 AND 16 AND THAT, THEREFORE, THE COMPANY WAS REQUESTED BY TELEPHONE ON DECEMBER 13, 1961, TO CONFIRM ITS BID ON ITEMS 14 AND 16. IN REGARD TO THE CONFIRMATION OF THE COMPANY'S BID, THE SUPERVISOR OF THE BID AND AWARD BRANCH OF THE CONSOLIDATED SURPLUS SALES OFFICE STATED IN HER AFFIDAVIT DATED DECEMBER 13, 1961, AS FOLLOWS:

"AS THE SUPERVISOR OF THE BID AND AWARD BRANCH OF THE U.S. NAVY CONSOLIDATED SURPLUS SALES OFFICE IN OAKLAND, CALIFORNIA, I CERTIFY THAT BY TELEPHONE CONVERSATION ON ABOUT 20 NOVEMBER, 1961, I ASKED MR. FRANK J. THOMAS OF FRANK J. THOMAS MACHINERY, 22701 ENADIA WAY, CANOGA PARK, CALIFORNIA, TO CONFIRM HIS BID ON ITEMS 14 AND 16 OF SALES INVITATION B-78 -62-63068 AS BEING THE CORRECT ITEMS AND PRICES ON WHICH HE MEANT TO BID. I STATED TO HIM THAT HE HAD BID UPON ITEM 14, A THREAD GRINDER FOR $327.00 EACH AND ITEM 16, A LATHE, FOR $721.00 EACH, ALTHOUGH HIS BID SHEET SHOWED CIRCLES ON THE ITEM NUMBERS OF 13 AND 15. HE STATED THAT ITEMS 14 AND 16 WERE CORRECT. I, THEN, STATED THAT HE UNDERSTOOD THAT ITEM 14 WAS A THREAD GRINDER, NOT A SURFACE GRINDER, AS WAS SHOWN FOR ITEM 13, AND HIS REPLY WAS, "YES, A THREAD GRINDER, AND ITEM 16 IS A LATHE.' I TOLD HIM THAT ITEM 16 WAS THE LATHE MANUFACTURED BY AMERICAN MACHINE AND FOUNDRY COMPANY. HE PLIED,"THAT'S RIGHT. THAT'S WHAT I WANT, A THREAD GRINDER AND A LATHE.' I THEN ASKED HIM TO CONFIRM BY LETTER OUR CONVERSATION AS TO THE ITEMS IN QUESTION AND HE SAID HE WOULD.'

THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 14 AND 16 ON NOVEMBER 22, 1961.

IN A LETTER DATED NOVEMBER 22, 1961, WHICH WAS RECEIVED BY THE CONSOLIDATED SURPLUS SALES OFFICE ON NOVEMBER 24, 1961, MR. FRANK J. THOMAS OF THE FRANK J. THOMAS MACHINERY COMPANY REFERRED TO THE TELEPHONE VERIFICATION OF HIS BID AND STATED THAT HE HAD INTENDED TO BID ON ITEM 13, A BROWN AND SHARPE MFG.CO. SURFACE GRINDER AND ON ITEM 15, A MONARCH MACHINE TOOL COMPANY LATHE, INSTEAD OF ITEMS 14 AND 16. IN A LETTER DATED NOVEMBER 24, 1961, MR. THOMAS STATED THAT HE HAD PLACED CIRCLES AROUND ITEMS 13 AND 15, BUT THAT THROUGH ERROR HE PLACED THE BID PRICES OPPOSITE ITEMS 14 AND 16. IN SUPPORT OF HIS ALLEGATION OF ERROR, MR. THOMAS SUBMITTED THE RETAINED COPY OF THE BIDDER'S SUMMARY SHEET, WHICH SHOWS PRICES FOR ITEMS 5, 7, 8, 13, 15AND 24; HOWEVER NO PRICES ARE SHOWN FOR ITEMS 14 AND 16.

THE DESCRIPTION OF ITEMS 14 AND 16 WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT THE EQUIPMENT OFFERED FOR SALE THEREUNDER WAS ONE DALZEN THREAD GRINDER AND ONE AMERICAN MACHINE AND FOUNDRY COMPANY LATHE. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. CONSEQUENTLY, IF THE FRANK J. THOMAS MACHINERY COMPANY INADVERTENTLY INSERTED THE PRICES INTENDED FOR ITEMS 13 AND 15 OPPOSITE ITEMS 14 AND 16, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL--- NOT MUTUAL-- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; AND SALIGMEN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

MOREOVER, UPON OPENING THE BIDS THERE WAS DOUBT ON THE PART OF THE SALES CONTRACTING OFFICER AS TO THE CORRECTNESS OF THE PRICES QUOTED BY THE FRANK J. THOMAS MACHINERY COMPANY AND, THEREFORE, MR. FRANK J. THOMAS WAS REQUESTED BY TELEPHONE TO VERIFY THE COMPANY'S BID AS TO ITEMS 14 AND 16. IN REPLY, MR. THOMAS UNEQUIVOCALLY STATED BY TELEPHONE THAT IT WAS HIS INTENTION TO BID ON THE THREAD GRINDER COVERED BY ITEM 14 AND THE AMERICAN MACHINE AND FOUNDRY COMPANY LATHE COVERED BY ITEM 16. AFTER MR. THOMAS CONFIRMED HIS COMPANY'S BID, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. SEE CARNEGIE STEEL CO. V. CONNELLY, 89 N.J.L. 1, 97 A. 774; SHRIMPTON MFG.CO. V. BRIN, 59 TEX.CIV.APP. 352, 125 S.W. 942; AND ALABAMA SHIRT AND TROUSER CO. V. UNITED STATES, 121 CT.CL. 313.

SINCE THE CONTRACTING OFFICER DID NOT ACCEPT THE BID UNTIL AFTER MR. THOMAS HAD CONFIRMED HIS COMPANY'S BID ON ITEMS 14 AND 16, THERE IS PRECLUDED ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF THE COMPANY. SEE 18 COMP. GEN. 928, 27 ID. 17 AND 36 ID. 27.

ACCORDINGLY, ON THE RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR RELEASING THE FRANK J. THOMAS MACHINERY COMPANY FROM ITS OBLIGATION UNDER THE BID, WHICH WAS ACCEPTED.