B-151379, MAY 9, 1963

B-151379, MAY 9, 1963

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED APRIL 24, 1963, WITH ENCLOSURES, FROM THE ASSISTANT CHIEF OF NAVAL MATERIAL (FIELD OPERATIONS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY THE SEABOARD STEEL COMPANY, INC., TO HAVE BEEN MADE IN ITS BID ON WHICH SALES CONTRACT NO. N62776-1622 IS BASED.

THE INSPECTOR OF NAVAL MATERIAL, CONTRACT TERMINATION DEPARTMENT (SALES), BOSTON, MASSACHUSETTS, BY INVITATION NO. B-7-63-62776REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, ONE PNEUMATIC COMPARATOR, ITEM 32, THE ORIGINAL ACQUISITION COST OF WHICH WAS STATED TO BE $983. IN RESPONSE THE SEABOARD STEEL COMPANY, INC., SUBMITTED A BID OFFERING TO PURCHASE THE PNEUMATIC COMPARATOR COVERED BY ITEM 32 AT A PRICE OF $137.99. THE BID OF THE SEABOARD STEEL COMPANY, INC., WAS ACCEPTED AS TO ITEM 32 ON APRIL 5, 1963.

BY LETTER DATED APRIL 8, 1963, THE SEABOARD STEEL COMPANY, INC., ADVISED THE CONTRACTING OFFICER THAT IT HAD INTENDED TO BID ON ITEM 31, ONE TILTING TUMBLING BARREL, INSTEAD OF ITEM 32 AND THE CORPORATION REQUESTED THAT THE AWARD TO IT BE CANCELED.

THERE WAS NOTHING ON THE FACE OF THE BID OF THE CORPORATION TO INDICATE THAT THE PRICE QUOTED THEREIN FOR ITEM 32 WAS INTENDED FOR ITEM 31. THE ABSTRACT OF BIDS SHOWS THAT THE CORPORATION SUBMITTED THE ONLY BID RECEIVED ON THE PNEUMATIC COMPARATOR COVERED BY ITEM 32. PNEUMATIC COMPARATORS ALSO WERE OFFERED FOR SALE UNDER ITEMS 33 THROUGH 43 OF THE INVITATION AND IT IS REPORTED THAT NO BIDS WERE RECEIVED ON THESE ITEMS. THE SALES CONTRACTING OFFICER REPORTED NO RECENT SALES EXPERIENCE FOR SIMILAR EQUIPMENT AND HE WAS UNABLE TO EXPLAIN THE ABSENCE OF BIDDER INTEREST. WHILE THERE WAS AN ABSENCE OF BIDDER INTEREST IN THE PNEUMATIC COMPARATORS OFFERED FOR SALE UNDER THIS INVITATION, THAT FACTOR IS NOT SUFFICIENT TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF POSSIBLE MISTAKE IN THE BID OF THE CORPORATION.

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 THE SEABOARD STEEL COMPANY, INC., 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. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 CT.CL. 120, 163. ANY ERROR THAT WAS MADE IN THE BID OF THE CORPORATION WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE THE CORPORATION TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT.CL. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :