B-152323, DEC. 11, 1963

B-152323: Dec 11, 1963

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A GENERATOR SET THE ACQUISITION COST OF WHICH WAS $5. AWARDS OF THESE ITEMS WERE MADE TO THE CONTRACTOR ON APRIL 17. THE CONTRACTOR ALLEGED AN ERROR IN THE BID SUBMITTED IN THAT IN TYPING UP THE BID THE AMOUNTS WERE INADVERTENTLY INDICATED OPPOSITE ITEMS 100 AND 101. WHEREAS IT WAS HIS INTENTION TO BID ON ITEMS 101 AND 102. THE RECORD CLEARLY INDICATES THAT THE CONTRACTOR MADE A MISTAKE WHEN BID WAS SUBMITTED ON ITEMS 100 AND 101 INSTEAD OF ITEMS 101 AND 102. THERE IS LITTLE DOUBT FROM THE EVIDENCE SUBMITTED THAT MR. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE PRICES QUOTED THEREIN FOR ITEMS 100 AND 101 ACTUALLY WERE INTENDED FOR ITEMS 101 AND 102. IT IS REPORTED THAT ON A RECENT SALE OF SIMILAR EQUIPMENT.

B-152323, DEC. 11, 1963

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

BY LETTER DATED AUGUST 16, 1963, DSAH-G, YOUR ASSISTANT COUNSEL FORWARDED FOR DECISION THE REQUEST OF L. GEORGE LAMBERT FOR CANCELLATION OF ITEM 100, SALES CONTRACT NO. DSA 44-S-1724, AND REFUND OF ITS PURCHASE PRICE.

THE DEFENSE SALES SURPLUS OFFICE, OAKLAND, CALIFORNIA, BY INVITATION NO. 44-S-63-91, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF CERTAIN POWER GENERATING EQUIPMENT LOCATED AT MCCLELLAN AIR FORCE BASE, CALIFORNIA. MR. LAMBERT SUBMITTED A HIGH BID OF $1,016.82 ON ITEM 100, A GENERATOR SET WHICH ORIGINALLY COST $4,272 AND A HIGH BID OF $847.68 ON ITEM 101, A GENERATOR SET THE ACQUISITION COST OF WHICH WAS $5,649. AWARDS OF THESE ITEMS WERE MADE TO THE CONTRACTOR ON APRIL 17, 1963.

IN A LETTER DATED MAY 10, 1963, THE CONTRACTOR ALLEGED AN ERROR IN THE BID SUBMITTED IN THAT IN TYPING UP THE BID THE AMOUNTS WERE INADVERTENTLY INDICATED OPPOSITE ITEMS 100 AND 101, WHEREAS IT WAS HIS INTENTION TO BID ON ITEMS 101 AND 102. MR. LAMBERT SAID THAT FOR SOME TIME HE HAD LOOKED FOR A SINGLE PHASE GENERATOR AND THE DESCRIPTION GIVEN FOR ITEMS 101 AND 102 ANSWERED THIS NEED. IN SUPPORT OF HIS ALLEGATION OF MISTAKE, THE CONTRACTOR SENT HIS WORK SHEET WHICH INDICATES THAT HE DID NOT CONTEMPLATE A BID ON ITEM 100, A THREE-PHASE GENERATOR SET, AND THAT HE DID CONTEMPLATE A BID OF $1,016.82 ON ITEM 101 AND $847.68 ON ITEM 102. THUS, THE RECORD CLEARLY INDICATES THAT THE CONTRACTOR MADE A MISTAKE WHEN BID WAS SUBMITTED ON ITEMS 100 AND 101 INSTEAD OF ITEMS 101 AND 102. THEREFORE, QUESTION ARISES AS TO WHETHER THE AWARD OF ITEM 100 SHOULD BE CANCELLED AND THE PURCHASE PRICE OF $1,016.82 REFUNDED IN FULL OR SHOULD THE CONTRACTOR BE DECLARED IN DEFAULT, CHARGED 20 PERCENT OF THE PURCHASE PRICE OF ITEM 100 AS LIQUIDATED DAMAGES AND THE REMAINING 80 PERCENT REFUNDED TO THE CONTRACTOR.

THERE IS LITTLE DOUBT FROM THE EVIDENCE SUBMITTED THAT MR. LAMBERT MADE A MISTAKE IN SUBMITTING HIS BID. HOWEVER, THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE PRICES QUOTED THEREIN FOR ITEMS 100 AND 101 ACTUALLY WERE INTENDED FOR ITEMS 101 AND 102. THE BIDS RECEIVED ON THESE THREE ITEMS RANGED FROM $189.99 TO $1,016.82, ON ITEM 100, FROM $168.99 TO $847.68 ON ITEM 101, AND FROM $168.99 TO $585 ON ITEM 102. IT IS REPORTED THAT ON A RECENT SALE OF SIMILAR EQUIPMENT, THE BID PRICES RANGED FROM $47 TO $1,919. THE SECOND HIGHEST BID ON ITEMS 100 AND 101 WERE IDENTICAL AND THEREFORE IT CANNOT BE SAID THAT THE PRICE BID WOULD OF ITSELF INDICATE AN ERROR IN THAT THE PRICE BID FOR ITEM 100 SHOULD HAVE APPLIED TO ITEM 101, NOR WAS THE DIFFERENCE IN THE AMOUNT BID ON ITEM 100 SO GREAT AS TO HAVE PLACED THE SALES CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF MR. LAMBERT. IT IS TO BE EXPECTED IN SALES OF THE KIND INVOLVED WHERE WASTE, SALVAGE OR SURPLUS PROPERTY IS OFFERED FOR SALE THAT THERE WILL BE A WIDE RANGE IN THE BIDS RECEIVED. THE MERE DIFFERENCE IN THE PRICES BID FOR SUCH PROPERTY WOULD NOT NECESSARILY PUT THE CONTRACTING OFFICER ON NOTICE OF A MISTAKE AS WOULD A LIKE DIFFERENCE IN PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT. SEE UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, AFFIRMED IN 253 F.2D. 956, CITING WITH APPROVAL 16 COMP. GEN. 596, 17 ID. 388 AND ID. 601.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. IF HE MADE A MISTAKE, WHICH NO DOUBT HE DID, SUCH ERROR WAS DUE SOLELY TO HIS OWN NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SINCE THE ERROR WAS NOT SUCH AS WOULD HAVE COME TO THE ATTENTION OF THE CONTRACTING OFFICER PRIOR TO THE AWARD, IT WAS UNILATERAL --- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE MR. LAMBERT TO RELIEF FROM HIS OBLIGATION UNDER THE CONTRACT. HE HAS REFUSED TO ACCEPT DELIVERY ON ITEM 100 AND IS THEREFORE IN DEFAULT. ACCORDINGLY, UNDER THE PROVISIONS OF PARAGRAPH 7 OF THE CONTRACT, 20 PERCENT OF THE PURCHASE PRICE, OR $203.36, SHOULD BE RETAINED AS LIQUIDATED DAMAGES AND THE BALANCE, $813.46, MAY BE REFUNDED TO THE CONTRACTOR.

THE PAPERS WITH THE EXCEPTION OF THE STATEMENT OF THE SALES CONTRACTING OFFICER ARE RETURNED.