B-148653, APR. 26, 1962

B-148653: Apr 26, 1962

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DEFENSE SUPPLY AGENCY: REFERENCE IS MADE TO A LETTER FROM YOUR AGENCY DATED APRIL 11. TO HAVE BEEN MADE IN ITS BID UNDER INVITATION NO. 33-167-S-62-46. WHICH WAS APPROXIMATELY 62 PERCENT OF THE ACQUISITION COST. IT IS STATED BY THE CONTRACTING OFFICER THAT PRIOR TO ISSUING THE INVITATION IT HAD BEEN ADMINISTRATIVELY DETERMINED THAT A UNIT BID OF $2.50 OR MORE ON ITEM NO. 87 WOULD BE ACCEPTABLE. AWARD WAS MADE ON JANUARY 24. EAGLE IN THAT THE BID WAS INTENDED TO BE ON ITEM NO. 90 INSTEAD OF NO. 87. THERE WERE TRANSMITTED WITH THE LETTER. THE BASIC QUESTION FOR CONSIDERATION IS NOT WHETHER S. THE INVITATION WAS CLEAR AS TO THE MATERIALS COVERED BY THE VARIOUS ITEMS AND. ANY ERROR WHICH MAY HAVE BEEN MADE WAS DUE SOLELY TO THE NEGLIGENCE OF S.

B-148653, APR. 26, 1962

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO A LETTER FROM YOUR AGENCY DATED APRIL 11, 1962, FILE DSAH-G, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY S. COHN AND SON AUTO COMPANY, 142 WEST VERMONT STREET, INDIANAPOLIS, INDIANA, TO HAVE BEEN MADE IN ITS BID UNDER INVITATION NO. 33-167-S-62-46.

ON OR ABOUT DECEMBER 29, 1961, COLUMBUS CONSOLIDATED SURPLUS SALES OFFICE (NOW DEFENSE SURPLUS SALES OFFICE), COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO, ISSUED INVITATION FOR BIDS NO. 62-46, INVITING SPOT BIDS ON VARIOUS ITEMS OF SURPLUS PROPERTY, THE SALE TO BE HELD JANUARY 24, 1962. ITEMS NOS. 87 AND 90, RESPECTIVELY, COVERED SPRINGS DESCRIBED AS FOLLOWS:

"SPRING, FRONT AND REAR ASSY. W/BUSHINGS, 42 1/2 INCHES LONG FROM CENTER TO CENTER OF EYES, 8 LEAVES, 2 1/2 INCHES WIDE, 9/32 INCHES THICK, 2 1/4 INCHES THICK, AT CENTER OF LEAVES, (G179) CARGO CARRIER, USED ON VEHICLES AFTER SERIAL NO. 2102, STUDEBAKER NO. 908202. UNUSED. 6 PALLETS, APPROX. UNIT WEIGHT: 60 LBS; TOTAL WEIGHT: 12,200 LBS., UNIT COST: $9.35, TOTAL ACQ. COST: $1,887.70. MINIMUM PURCHASE ENTIRE QUANTITY. LOC: 1-425-21. QUANTITY----------- ---------------------------------------202 EA.

"SPRING, FRONT ASSY W/BUSHINGS 49 1/2 INCHES LONG FROM CENTER OF EYE TO CENTER OF EYE. LEAVES 3 INCHES WIDE AND 29/64 INCHES THK. 5 1/4 INCH DEPTH AT CENTER OF SPRING, APPROXIMATE WEIGHT 75 LBS., EACH. 12 LEAVES INCLUDING REBOUND LEAF. INTERNATIONAL HARVESTER CO. NO. 104842R91 OR EQUAL. TRUCK, CARGO, (G744). UNUSED. 120 PKGS., TOTAL WEIGHT: 9,000 LBS., UNIT COST: $27.80, TOTAL ACQU. COST: $3,336.00. MINIMUM PURCHASE 60 EACH. LOC: 1-425-18, RES LOC: 12-360-35. QUANTITY----------------------- ------------------------------120 EA.'

IN RESPONSE TO THE INVITATION, S. COHN AND SON AUTO COMPANY, ACTING THROUGH ITS AGENT MR. M. A. EAGLE, SUBMITTED BIDS ON SEVERAL ITEMS, INCLUDING A BID OF $5.88 EACH (TOTAL $1,187.76) ON ITEM NO. 87, WHICH WAS APPROXIMATELY 62 PERCENT OF THE ACQUISITION COST. THE TEN OTHER BIDS RECEIVED ON ITEM NO. 87 RANGED FROM $0.71 TO $3.51 EACH. IT IS STATED BY THE CONTRACTING OFFICER THAT PRIOR TO ISSUING THE INVITATION IT HAD BEEN ADMINISTRATIVELY DETERMINED THAT A UNIT BID OF $2.50 OR MORE ON ITEM NO. 87 WOULD BE ACCEPTABLE. IN ACCORDANCE WITH ARTICLE J OF SPECIAL CONDITIONS OF SALE, AWARD WAS MADE ON JANUARY 24, 1962, TO S. COHN AND SON AUTO COMPANY AS HIGH BIDDER ON ITEMS NOS. 87 AND 147.

ON JANUARY 25, 1962, THE CONTRACTOR INQUIRED BY TELEPHONE AS TO THE RESULTS OF THE SALE AND ON BEING INFORMED OF THE AWARD ON ITEM NO. 87 ALLEGED AN ERROR BY MR. EAGLE IN THAT THE BID WAS INTENDED TO BE ON ITEM NO. 90 INSTEAD OF NO. 87. IN ITS LETTER OF JANUARY 25, 1962, THE CONTRACTOR REPEATED ITS ALLEGATION OF ERROR AND REQUESTED THAT THE AWARD BE CANCELLED, STATING THAT IT HAD NO USE FOR THE SPRINGS DESCRIBED IN ITEM NO. 87 AND THAT IT WOULD LOSE $1,000 IF NOT GIVEN RELIEF. HOWEVER, AS REQUESTED, IT ENCLOSED A CERTIFIED CHECK IN THE AMOUNT OF $276.35 AS A BID DEPOSIT. THERE WERE TRANSMITTED WITH THE LETTER, ALSO, A MARKED SALE CATALOGUE AND AN AFFIDAVIT BY MR. EAGLE SUPPORTING THE ALLEGATION OF ERROR. ON JANUARY 30, 1962, THE CONTRACTING OFFICER ISSUED A CONFIRMING NOTICE OF AWARD ON ITEMS NOS. 87 AND 147.

THE BASIC QUESTION FOR CONSIDERATION IS NOT WHETHER S. COHN AND SON AUTO COMPANY MADE A MISTAKE IN ITS BID BUT WHETHER THE ACCEPTANCE OF THE BID BY THE CONTRACTING OFFICER CONSUMMATED A VALID AND BINDING CONTRACT. THE INVITATION WAS CLEAR AS TO THE MATERIALS COVERED BY THE VARIOUS ITEMS AND, THEREFORE, ANY ERROR WHICH MAY HAVE BEEN MADE WAS DUE SOLELY TO THE NEGLIGENCE OF S. COHN AND SON AUTO COMPANY AND SUCH ERROR WAS IN NO WAY CONTRIBUTED TO BY THE GOVERNMENT. THE BID SUBMITTED WAS UNAMBIGUOUS AND THERE WAS NOTHING ON ITS FACE TO INDICATE ERROR.

ALTHOUGH THE BID OF S. COHN AND SON AUTO COMPANY WAS CONSIDERABLY HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM NO. 87, IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE, AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY, AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT OR SUPPLIES TO BE FURNISHED TO THE GOVERNMENT. PRICES OFFERED TO THE GOVERNMENT FOR ITS SURPLUS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO BE MADE OF THE PROPERTY BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE WHICH THE BIDDER MIGHT DESIRE TO TAKE. SEE UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, 689, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID 388; ID. 601. IN THE SABIN CASE, SUPRA, THE PRICE DISPARITY ON THE BIDS RECEIVED FOR THE SALE OF SURPLUS PROPERTY RANGED FROM A LOW OF $337.28 TO A HIGH OF $9,351.30. THE COURT, AT PAGE 688, SAID:

"THIS BEING A SALE OF SURPLUS ENGINE PARTS, THE CONTRACTING OFFICER HAD NO METHOD OF KNOWING THAT THERE WAS AN ERROR IN THE DEFENDANT'S BID. THE GOVERNMENT WAS INTERESTED ONLY IN GETTING THE HIGHEST POSSIBLE PRICE FOR THE MATERIAL TO BE SOLD; IT WAS NOT IN THE METAL TRADE. THERE IS NO REASON WHY THE SPREAD IN BIDS SHOULD HAVE APPEARED PALPABLE TO THE GOVERNMENT. THE ADMINISTRATIVE AGENCY WAS NOT REQUIRED TO EMPLOY OR UTILIZE EXPERTS FOR THE BENEFIT OF THE DEFENDANT, NOR TO ASSUME THE BURDEN OF EXAMINING EVERY LOW BID FOR POSSIBLE ERROR BY THE BIDDER.'

IN VIEW OF THE FOREGOING, AND AS NO ERROR WAS ALLEGED UNTIL AFTER AWARD AND THE BID WAS CLEAR AND UNAMBIGUOUS, IT MUST BE CONCLUDED THAT THE ACCEPTANCE OF THE BID OF S. COHN AND SON AUTO COMPANY WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. ANY ERROR THAT WAS MADE IN THE BID OF S. COHN AND SON AUTO COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE IT TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249 AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

FOR THE REASONS ABOVE SET FORTH, THE AWARD TO S. COHN AND SON AUTO COMPANY, MAY NOT BE CANCELED.