B-158064, DEC. 30, 1965

B-158064: Dec 30, 1965

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ITEMS 40 THROUGH 46 ARE STEEL DRUMS. YOU ADVISED THE AGENCY THAT YOUR BID ON THE DRUMS WAS A MISTAKE. THE LAW IS WELL SETTLED THAT A UNILATERAL ERROR OF A CONTRACTOR DOES NOT AFFORD GROUNDS FOR RELIEF FROM THE CONTRACT. WE HAVE NOT ALLOWED RESCISSION OR CANCELLATION OF SUCH CONTRACTS ON THE GROUNDS OF UNILATERAL MISTAKE OF THE CONTRACTOR. OR SHOULD HAVE KNOWN OF THE ERROR. THE ERROR YOU ALLEGE WAS NOT APPARENT AT THE TIME THE CONTRACT WAS ENTERED INTO. ITEMS 40 THROUGH 46 ARE THE ONLY STEEL DRUMS INCLUDED IN THE SALE. IT WAS ASSUMED THAT YOU HAD A SPECIFIC USE FOR THESE DRUMS AND NO QUESTION WAS RAISED BY YOUR BID. WHILE THE NEXT BID ON EACH WAS $ .093 AND $ .207 RESPECTIVELY. EVEN THOUGH THEY WERE IN "POOR" CONDITION.

B-158064, DEC. 30, 1965

TO TARASHINSKY MERCHANDISE COMPANY:

WE AGAIN REFER TO YOUR LETTER DATED NOVEMBER 17, 1965, REQUESTING RESCISSION OF YOUR BID ON LOTS 43 AND 44 OF SALE NO. 25-6019, DUE TO AN ERROR IN THE BID. THE DSA SALE INCLUDED SURPLUS HARD AND SOFT GOODS, AND YOU BID ON ITEMS 6, 40-46, 97-102, 104, 105, 107, 108, 117 122. ITEMS 40 THROUGH 46 ARE STEEL DRUMS. ON SEPTEMBER 9, 1965, THE CONTRACTING OFFICER ACCEPTED YOUR BID ON ITEMS 43 AND 44--- DRUMS--- AND ITEM 102--- FIELD JACKET LINERS. UPON RECEIPT OF THIS ACCEPTANCE, YOU ADVISED THE AGENCY THAT YOUR BID ON THE DRUMS WAS A MISTAKE, SINCE YOU DID NOT INTEND TO BID ON THEM.

THE LAW IS WELL SETTLED THAT A UNILATERAL ERROR OF A CONTRACTOR DOES NOT AFFORD GROUNDS FOR RELIEF FROM THE CONTRACT. OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505; UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. FOLLOWING THESE CASES, WE HAVE NOT ALLOWED RESCISSION OR CANCELLATION OF SUCH CONTRACTS ON THE GROUNDS OF UNILATERAL MISTAKE OF THE CONTRACTOR. COMP. GEN. 261; 40 ID. 509.

WE RECOGNIZE THE EXCEPTION, HOWEVER, WHERE THE CONTRACTING OFFICER KNEW OF THE ERROR, 36 COMP. GEN. 641, OR SHOULD HAVE KNOWN OF THE ERROR, 37 COMP. GEN. 398. HERE, HOWEVER, THE ERROR YOU ALLEGE WAS NOT APPARENT AT THE TIME THE CONTRACT WAS ENTERED INTO. ITEMS 40 THROUGH 46 ARE THE ONLY STEEL DRUMS INCLUDED IN THE SALE, AND YOU BID ON EACH ONE OF THEM. ALTHOUGH THE SALES CONTRACTING OFFICER REALIZED THAT YOUR COMPANY GENERALLY DEALT WITH SOFT GOODS, IT WAS ASSUMED THAT YOU HAD A SPECIFIC USE FOR THESE DRUMS AND NO QUESTION WAS RAISED BY YOUR BID.

YOUR BID $ .4119 ON ITEM 43 AND $ .4319 ON ITEM 44, WHILE THE NEXT BID ON EACH WAS $ .093 AND $ .207 RESPECTIVELY. THE MERCHANDISING DIVISION OF THE AGENCY HAD DEVELOPED AN APPRAISAL PRICE OF $1.00 FOR THE DRUMS, EVEN THOUGH THEY WERE IN "POOR" CONDITION. THEREFORE, THE DIFFERENCE IN BID PRICES WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF A PROBABILITY OF ERROR. FURTHER, IT IS NOT UNCOMMON FOR A WIDE RANGE OF BID PRICES TO OCCUR IN SALES OF USABLE SURPLUS PROPERTY.

SINCE AT THE TIME OF BID OPENING AND BID ACCEPTANCE THERE WAS NO REASON FOR THE CONTRACTING OFFICER TO SUSPECT ERROR, IT IS CONCLUDED THAT CONTRACT DSA-25-6019-56 IS VALID AND THAT YOU ARE BOUND BY ITS TERMS.