B-153139, FEB. 12, 1964

B-153139: Feb 12, 1964

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ADOLPH KESSOF: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 16. WHICH WAS ISSUED BY THE DEFENSE SURPLUS SALES OFFICE. SINCE ONLY ONE OTHER BID OF $13.55 A GROSS TON WAS RECEIVED FOR ITEM NO. 16. YOUR BID WAS ACCEPTED FOR THE ITEM ON JUNE 10. IN THAT YOUR UNIT PRICE OF $16 A GROSS TON FOR ITEM NO. 16 WAS INTENDED FOR ITEM NO. 14. YOUR REQUEST FOR RELIEF WAS DENIED BY THE DEFENSE SUPPLY AGENCY. TO THIS OFFICE YOUR BASIC CONTENTION APPEARS TO BE THAT THE $2.45 A TON DIFFERENCE BETWEEN YOUR BID OF $16 A GROSS TON AND THE ONLY OTHER BID RECEIVED OF $13.55 A GROSS TON FOR ITEM NO. 16 SHOULD HAVE BEEN A SUFFICIENT PRICE DIFFERENTIAL TO HAVE ALERTED THE CONTRACTING OFFICER AS TO THE PROBABILITY OF AN ERROR IN YOUR BID FOR THIS ITEM.

B-153139, FEB. 12, 1964

TO MR. ADOLPH KESSOF:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 16, 1963, WITH ENCLOSURE, MAKING CLAIM FOR RELIEF BY REASON OF AN ERRONEOUS BID SUBMITTED BY YOU IN RESPONSE TO DEFENSE LOGISTICS SERVICES CENTER INVITATION NO. 11- S-63-96, DATED MAY 17, 1963.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, PHILADELPHIA NAVAL BASE, YOU SUBMITTED A BID DATED MAY 28, 1963, OFFERING TO PURCHASE ITEM NO. 16, COVERING 25 GROSS TONS OF UNPREPARED STEEL LOCATED AT THE NAVAL ORDNANCE PLANT, YORK, PENNSYLVANIA, AT A UNIT PRICE OF $16, OR FOR A TOTAL PRICE OF $400. SINCE ONLY ONE OTHER BID OF $13.55 A GROSS TON WAS RECEIVED FOR ITEM NO. 16, YOUR BID WAS ACCEPTED FOR THE ITEM ON JUNE 10, 1963. UPON RECEIPT OF THE NOTICE OF AWARD YOU ADVISED THE GOVERNMENT CONTRACTING OFFICE BY LETTER DATED JUNE 13, 1963, THAT AN ERROR HAD BEEN MADE IN YOUR BID, IN THAT YOUR UNIT PRICE OF $16 A GROSS TON FOR ITEM NO. 16 WAS INTENDED FOR ITEM NO. 14, COVERING 25 NET TONS OF SCRAP TABULATING CARDS; YOU THEREFORE REQUESTED AN ADJUSTMENT OF THE ERROR THAT HAD BEEN MADE. YOUR REQUEST FOR RELIEF WAS DENIED BY THE DEFENSE SUPPLY AGENCY. IN YOUR LETTER DATED DECEMBER 16, 1963, TO THIS OFFICE YOUR BASIC CONTENTION APPEARS TO BE THAT THE $2.45 A TON DIFFERENCE BETWEEN YOUR BID OF $16 A GROSS TON AND THE ONLY OTHER BID RECEIVED OF $13.55 A GROSS TON FOR ITEM NO. 16 SHOULD HAVE BEEN A SUFFICIENT PRICE DIFFERENTIAL TO HAVE ALERTED THE CONTRACTING OFFICER AS TO THE PROBABILITY OF AN ERROR IN YOUR BID FOR THIS ITEM.

OUR OFFICE CONSISTENTLY HAS HELD THAT IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON GOVERNMENT SALES OF WASTE, SALVAGE, AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES BID--- SUCH AS THE $2.45 A GROSS TON REFERRED TO IN THIS CASE--- DOES NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY FROM THE GOVERNMENT AS DOES A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT. MOREOVER, OUR OFFICE ALSO GENERALLY HAS HELD, EVEN IN CONNECTION WITH GOVERNMENT PURCHASES WHERE THE EVALUATION FACTOR OF COMPARATIVE BID PRICES IS, OF COURSE, OF MUCH MORE VALUE IN DETERMINING THE PROBABILITY OF ERRORS IN BIDS, THAT WHERE ONLY TWO WIDELY VARIANT BIDS HAVE BEEN RECEIVED ORDINARILY NO FAIR COMPARISON CAN BE MADE SINCE THERE IS NO MORE REASON FOR CONSIDERING THE LOW BID TOO LOW--- AS YOUR BID IN THIS CASE--- THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN QUOTING A BID TOO HIGH. SEE 20 COMP. GEN. 286. THUS, WE FIND NO BASIS FOR CHARGING THE GOVERNMENT CONTRACTING OFFICER WITH NOTICE OF THE PROBABILITY OF AN ERROR IN YOUR BID ON ANY BID COMPARISON BASIS. ALSO, WE FIND NO OTHER CIRCUMSTANCES ATTENDING YOUR BID THAT WOULD HAVE INDICATED THE PROBABILITY OF ERROR THEREIN. IN VIEW OF THIS, WE MUST CONCLUDE THAT THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH AND THAT SUCH ACCEPTANCE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR GRANTING YOU ANY RELIEF IN THE MATTER.