B-165821, JAN. 17, 1969

B-165821: Jan 17, 1969

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WAS REFERRED TO US FOR CONSIDERATION. IT IS CONTENDED THAT YOUR BID ON ITEM NO. 147 OF $15. 000 WAS A REASONABLE PRICE FOR THE EQUIPMENT AND THAT YOUR BID WAS. OR SHOULD HAVE BEEN. EACH PRESS WAS STATED AS HAVING AN ACQUISITION COST OF $240. ITEM NO. 147 COVERED ONE CENTRAL PUMP AND ACCUMULATOR SYSTEM AND IT WAS STATED AT THE BOTTOM THAT SUCH SYSTEM WAS "DESIGNED FOR USE WITH ITEMS 143 THRU 146.'. THE SALES CATALOGUE SHOWED THAT THERE WAS A CONNECTION BETWEEN ITEMS 143 THROUGH 147 EVEN THOUGH THEY WERE LISTED AS SEPARATE ITEMS. PROVIDES: "ARTICLE DA: SUBMISSION OF BIDS AND AWARD. (1) THE AUCTIONEER WILL OFFER EACH NUMBERED ITEM SEPARATELY. BIDDERS WILL COMMUNICATE THE AMOUNT OF THEIR BIDS EITHER ORALLY OR BY SUCH OTHER MEANS AS MAY BE RECOGNIZED BY AND ACCEPTABLE TO THE AUCTIONEER.

B-165821, JAN. 17, 1969

TO THE ASHTABULA BOW SOCKET COMPANY:

YOUR LETTER OF DECEMBER 11, 1968, WITH ENCLOSURES, TO CONGRESSMAN J. WILLIAM STANTON, CONCERNING DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO, AUCTION SALE NO. 27-9030, WAS REFERRED TO US FOR CONSIDERATION.

IT IS CONTENDED THAT YOUR BID ON ITEM NO. 147 OF $15,000 WAS A REASONABLE PRICE FOR THE EQUIPMENT AND THAT YOUR BID WAS, OR SHOULD HAVE BEEN, ACCEPTED.

ITEM NOS. 143 THROUGH 146 OF THE SALE EACH COVERED ONE HYDRAULIC PRESS; EACH PRESS WAS STATED AS HAVING AN ACQUISITION COST OF $240,178, AN ESTIMATED WEIGHT OF 184,475 POUNDS, AND AS BEING IN USED GOOD CONDITION. ITEM NO. 147 COVERED ONE CENTRAL PUMP AND ACCUMULATOR SYSTEM AND IT WAS STATED AT THE BOTTOM THAT SUCH SYSTEM WAS "DESIGNED FOR USE WITH ITEMS 143 THRU 146.' THUS, THE SALES CATALOGUE SHOWED THAT THERE WAS A CONNECTION BETWEEN ITEMS 143 THROUGH 147 EVEN THOUGH THEY WERE LISTED AS SEPARATE ITEMS.

THE INSTRUCTIONS, TERMS, AND CONDITIONS APPLICABLE TO DEPARTMENT OF DEFENSE SURPLUS PERSONAL PROPERTY OFFERED BY DEFENSE SURPLUS SALES OFFICER, PART 2, GENERAL SALE TERMS AND CONDITIONS - ALL SALES, PARAGRAPH 3, PROVIDES THAT THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS. PART 6, SPECIAL AUCTION CONDITIONS, PROVIDES:

"ARTICLE DA: SUBMISSION OF BIDS AND AWARD. (1) THE AUCTIONEER WILL OFFER EACH NUMBERED ITEM SEPARATELY. BIDDERS WILL COMMUNICATE THE AMOUNT OF THEIR BIDS EITHER ORALLY OR BY SUCH OTHER MEANS AS MAY BE RECOGNIZED BY AND ACCEPTABLE TO THE AUCTIONEER. UNLESS OTHERWISE PROVIDED IN THE INVITATION BID OFFERS WILL NOT BE RECOGNIZED FROM ANY PERSON NOT PROPERLY REGISTERED AND WHERE APPLICABLE ISSUED A NUMBERED PADDLE. (2) ALL ITEMS CATALOGED BY WEIGHT, COUNT OR MEASURE WILL BE SOLD IN LIKE UNITS UNLESS SPECIFICALLY CHANGED BY ANNOUNCEMENT BY THE AUCTIONEER. THE GOVERNMENT RESERVES THE RIGHT TO SELL IN SUCH UNITS OR GROUPS THEREOF AS IT DEEMS MOST EXPEDIENT. ITEMS WILL NOT BE SUBDIVIDED OR GROUPED UNLESS SPECIFIC ANNOUNCEMENT IS MADE. (3) THE AUCTIONEER'S ,KNOCKING DOWN" AN ITEM WILL CONSTITUTE AN AWARD BY THE CONTRACTING OFFICER TO THE SUCCESSFUL PURCHASER FOR EACH ITEM EXCEPT AS OTHERWISE HEREIN SPECIFICALLY PROVIDED. (4) IN THE EVENT OF A DISPUTE AS TO THE AMOUNT BID, ITEM OR ITEM NUMBER, AND/OR PADDLE NUMBER OF A BIDDER, THE CONTRACTING OFFICER RESERVES THE RIGHT TO REOFFER THE ITEM IN QUESTION. ONCE AN ITEM IS "KNOCKED DOWN" THE PURCHASER MAY NOT WITHDRAW THE BID. (5) RECORDS OF THE GOVERNMENT, CERTIFIED BY THE CONTRACTING OFFICER, AS TO THE NAME AND NUMBER OF THE BIDDER, THE BID, AND AMOUNT THEREOF SHALL BE PRIMA FACIE EVIDENCE OF THE CIRCUMSTANCES OF THE SALE, AND ALL DISAGREEMENTS WILL BE RESOLVED IN ACCORDANCE WITH SUCH RECORDS. (6) SPECIAL PROVISIONS MADE BY THE BIDDER WILL NOT BE ACCEPTABLE AND WILL BE CAUSE FOR REJECTION OF BIDS. THE GENERAL SALE TERMS AND CONDITIONS AND SPECIAL CONDITIONS OF SALE CONSTITUTE A PART OF THE CONTRACT OF SALE BETWEEN THE GOVERNMENT AND THE PURCHASER. ALL BIDDERS ACKNOWLEDGE (BY SIGNING THE REGISTRATION CARD) THAT THEY HAVE FULL AND COMPLETE UNDERSTANDING OF THE TERMS AND CONDITIONS, AND AGREE TO BE BOUND THEREBY.'

THE TAPE RECORDING MADE OF THE PROCEEDINGS OF THE SALE DISCLOSES THAT IMMEDIATELY PRIOR TO OFFERING OF ITEMS 143 THROUGH 147, THE AUCTIONEER ANNOUNCED THAT EACH OF THE INDIVIDUAL ITEMS WAS TO BE OFFERED SINGLY AND THE HIGH BID AND THE HIGH BIDDER RECORDED BUT THAT NO AWARD OF ANY ITEM WOULD BE MADE UNTIL ALL BIDS HAD BEEN RECEIVED ON EACH ITEM SINGLY AND THEREAFTER THE COMPLETE SYSTEM (ALL 5 ITEMS) WOULD BE PUT ON THE AUCTION BLOCK. AFTER SOME DISCUSSION THE AUCTIONEER BEFORE PROCEEDING WITH OFFERING OF THE ITEMS INDIVIDUALLY STATED, "I WANT TO KNOW BEFORE I DO THIS -- IS IT ALL CLEAR IN YOUR MINDS? WE ARE GOING TO OFFER THEM INDIVIDUALLY AND AS EACH ITEM REACHES ITS HIGH BID I WILL ANNOUNCE IT; I WON-T DROP THE GAVEL; I WILL ANNOUNCE THE HIGH BIDDER AND THE PRICE AND I WILL HOLD THE BID AND I WILL COME BACK AND OFFER IT TO YOU AS A SYSTEM.'

THE SALE THEN PROCEEDED AND NO BIDS WERE RECEIVED ON ITEMS 143 THROUGH 146. ON ITEM 147 A HIGH BID OF $15,000 WAS RECEIVED AND THE AUCTIONEER STATED,"LET IT BE RECORDED THAT THE HIGH BID WAS $15,000. WHAT IS YOUR NUMBER SIR? NOW YOU UNDERSTAND I DIDN-T SELL IT TO YOU, I JUST RECORDED THE HIGH BID. BIDDER NO. 19 -- WE HAVE IT RECORDED UP HERE.' THE AUCTIONEER THEN ANNOUNCED THAT HE WOULD OFFER THE 5 ITEMS AS A COMPLETE SYSTEM. IN REPLY TO A QUESTION FROM THE FLOOR APPARENTLY WITH RESPECT TO ITEM 147, THE AUCTIONEER STATED,"SIR. YOU DIDN-T BUY THAT. SO FAR YOU ARE THE HIGH BIDDER JUST ON THE ACCUMULATOR SYSTEM. NOW WE ARE GOING TO OFFER THE WHOLE SYSTEM, THE 4 PRESSES PLUS THE ACCUMULATOR. SO NOW YOU BID ON ALL 5 ITEMS, YOU BID ON ALL FIVE LINE ITEMS ON THE COMPLETE HYDRAULIC SYSTEM -- THE WHOLE SYSTEM.'

A HIGH BID OF $26,000 WAS RECEIVED ON THE FIVE ITEMS -- THE COMPLETE HYDRAULIC SYSTEM. HOWEVER, THE AUCTIONEER ANNOUNCED,"NO SALE -- WE PASSED IT -- REJECTED IT AT $26,000.'

FROM THE FOREGOING EXCERPTS FROM THE TAPE RECORDING OF THE SALE, IT IS CLEAR THAT THERE WAS NO ,KNOCK DOWN" (AWARD) OF IEM 147 INDIVIDUALLY OR OF ITEMS 143 THROUGH 147 AS A GROUP. THE GOVERNMENT EXPRESSLY RESERVED THE RIGHT TO REJECT ANY OR ALL BIDS. ACCORDINGLY, WE FIND NO BASIS TO QUESTION THE PROCEDURES FOLLOWED IN THE SALE.

WITH RESPECT TO YOUR CONTENTION THAT YOUR BID OF $15,000 SHOULD HAVE BEEN DEEMED A FAIR PRICE FOR ITEM 147 AND SHOULD HAVE BEEN ACCEPTED, THIS WAS A QUESTION FOR ADMINISTRATIVE DETERMINATION AT THE TIME. IN THIS CONNECTION, IT IS NOTED THAT YOU STATED IN YOUR LETTER OF NOVEMBER 4, 1968, TO THE CONTRACTING OFFICER THAT YOU WERE PREPARED TO BID HIGHER ON ITEM 147, BUT THIS WAS NOT REQUIRED. OF COURSE IT WILL NEVER BE KNOWN, HAD YOU BID WHAT YOU WERE WILLING TO PAY FOR ITEM 147, WHETHER IT WOULD HAVE BEEN DEEMED A REASONABLE PRICE NOT ONLY FOR ITEM 147 INDIVIDUALLY, BUT ALSO FOR THE OTHER FOUR ITEMS PLUS ITEM 147.

WE UNDERSTAND THAT THE ITEMS IN QUESTION WILL BE REOFFERED BY THE COLUMBUS DEFENSE SURPLUS SALES OFFICE IN THE NEAR FUTURE. YOU WILL HAVE THE OPPORTUNITY TO BID ON THE EQUIPMENT AT THAT TIME.