B-165896, MAR. 3, 1969

B-165896: Mar 3, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO MORRIS ROTHENBERG AND SON: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27. INCLUDING ITEMS 25 AND 26 WHICH WERE DESCRIBED AS FOLLOWS: ITEM 25. YOU WERE AWARDED CONTRACT NO. 21-9005-062 FOR THE ABOVE ITEMS AND TWO OTHERS ON WHICH YOU WERE HIGH BIDDER. OF ITEMS 25 AND 26 IS REGULARLY USED TO DESCRIBE FIELD COATS AND. YOU STATE THAT YOUR BID PRICE WAS FAR IN EXCESS OF WHAT YOU WOULD NORMALLY BID FOR FATIGUE JACKETS AND IN VIEW OF THE FACT THAT YOUR BID WAS SO FAR OUT OF LINE WITH RESPECT TO THE OTHER BIDS. THE CONTRACTING OFFICER SHOULD HAVE BEEN PLACED ON NOTICE OF THE POSSIBILITY OF AN ERROR. ACCORDING TO THE ADMINISTRATIVE REPORT THE COMMON TERMINOLOGY USED TO DESCRIBE THE ITEM IN QUESTION IS "FATIGUE JACKET" OR "FATIGUE SHIRT" AND HAS BEEN DESCRIBED IN PAST SALES AS FOLLOWS: SHIRT: MEN'S FATIGUE.

B-165896, MAR. 3, 1969

TO MORRIS ROTHENBERG AND SON:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1968, REQUESTING A REVIEW BY THIS OFFICE OF THE DEFENSE SUPPLY AGENCY'S REFUSAL TO DELETE ITEMS 25 AND 26 FROM CONTRACT NO. 21-9005-062 AWARDED TO YOUR FIRM.

BY SEALED BID SALE NO. 21-9005, THE ATLANTA DEFENSE SURPLUS SALES OFFICE, FOREST PARK, GEORGIA, SOLICITED BIDS, TO BE OPENED JULY 25, 1968, FOR THE SALE OF NUMEROUS ITEMS OF GOVERNMENT SURPLUS PROPERTY, INCLUDING ITEMS 25 AND 26 WHICH WERE DESCRIBED AS FOLLOWS: ITEM 25. COAT: MEN'S COTTON, SATEEN, OG-107 (FATIGUE JACKET), TYPE 1,

VARIOUS SIZES.

INSIDE - BALED - USED - POOR CONDITION - REPAIRS REQUIRED

TOTAL COST $1776

EST. TOTAL WT. 600 LBS. 600 EACH ITEM 26. COAT: MEN'S COTTON, SATEEN, OG-107 (FATIGUE JACKET), TYPE 1,

VARIOUS SIZES.

INSIDE - BALED - USED - POOR CONDITION - REPAIRS REQUIRED

TOTAL COST $1480

EST. TOTAL WT. 500 LBS. 500 EACH

YOUR FIRM SUBMITTED THE HIGH BID OF $1.10 EACH, FOR ITEMS 25 AND 26. THE OTHER BIDS RANGED FROM ?0639 TO ?668 FOR ITEM 25 AND FROM ?0739 TO ?678 FOR ITEM 26. ON JULY 30, 1968, YOU WERE AWARDED CONTRACT NO. 21-9005-062 FOR THE ABOVE ITEMS AND TWO OTHERS ON WHICH YOU WERE HIGH BIDDER.

IN YOUR LETTER OF DECEMBER 27, 1968, YOU ALLEGE THAT THE ABOVE DESCRIPTION, EXCLUDING THE WORDS "FATIGUE JACKET" , OF ITEMS 25 AND 26 IS REGULARLY USED TO DESCRIBE FIELD COATS AND, THEREFORE, YOUR FIRM HAD BID ACCORDINGLY. YOU STATE THAT YOUR BID PRICE WAS FAR IN EXCESS OF WHAT YOU WOULD NORMALLY BID FOR FATIGUE JACKETS AND IN VIEW OF THE FACT THAT YOUR BID WAS SO FAR OUT OF LINE WITH RESPECT TO THE OTHER BIDS, THE CONTRACTING OFFICER SHOULD HAVE BEEN PLACED ON NOTICE OF THE POSSIBILITY OF AN ERROR.

ACCORDING TO THE ADMINISTRATIVE REPORT THE COMMON TERMINOLOGY USED TO DESCRIBE THE ITEM IN QUESTION IS "FATIGUE JACKET" OR "FATIGUE SHIRT" AND HAS BEEN DESCRIBED IN PAST SALES AS FOLLOWS:

SHIRT: MEN'S FATIGUE, COTTON SATEEN, OLIVE

DRAB, SHADE 107, TYPE 1, VARIOUS SIZES.

OR

JACKET: MEN'S FATIGUE, COTTON SATEEN, OLIVE

DRAB, SHADE 107, TYPE 1, VARIOUS SIZES.

WHILE USE OF THE WORD "COAT" MAY HAVE MISLED YOU, BY YOUR OWN ADMISSION IN YOUR LETTER OF AUGUST 1, 1968, TO THE SALES CONTRACTING OFFICER THE ERROR IN YOUR BID WAS THE RESULT OF NOT READING THE COMPLETE DESCRIPTIONS, WHICH INCLUDED THE WORDS "/FATIGUE JACKET)". IT IS ASSUMED THAT HAD YOU READ THE COMPLETE DESCRIPTIONS YOU WOULD HAVE BID ON THE ITEMS AS FULLY DESCRIBED OR AT LEAST QUESTIONED THE CORRECTNESS OF THE DESCRIPTION. THEREFORE, WE CAN ONLY CONCLUDE THAT THE ALLEGED ERROR WAS DUE SOLELY TO YOUR NEGLIGENCE AND SUCH ERROR WAS IN NO WAY CONTRIBUTED TO BY THE GOVERNMENT. MOREOVER, YOUR BID WAS UNAMBIGUOUS AND THERE WAS NOTHING ON ITS FACE TO INDICATE ERROR.

ALTHOUGH YOUR BID PRICES FOR ITEMS 25 AND 26 WERE SIGNIFICANTLY HIGHER (64.6 PERCENT AND 62.2 PERCENT, RESPECTIVELY) THAN THE NEXT HIGHEST BIDS FOR THESE ITEMS, IT DOES NOT APPEAR THAT THE DISPARITY WAS SO GREAT AS TO HAVE PLACED THE SALES CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR. IN VIEW OF THE WIDE RANGE OF BID PRICES ORDINARILY RECEIVED, AS IN THE PRESENT CASE, FOR SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICE ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY, AS WOULD A LIKE DIFFERENCE IN FOR THE PURCHASE OF SUCH PROPERTY, AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT OR SUPPLIES TO BE FURNISHED TO THE GOVERNMENT. PRICES OFFERED TO THE GOVERNMENT FOR ITS SURPLUS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO BE MADE OF THE PROPERTY BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE WHICH THE BIDDER MIGHT DESIRE TO TAKE. SEE UNITED STATES V SABIN METAL CORPORATION, 151 F.SUPP. 683, 689, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388; ID. 601. SEE ALSO B-160226, APRIL 26, 1967.

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 YOUR BID 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. ANY ERROR THAT WAS MADE TO YOUR BID WAS UNILATERAL, NOT MUTUAL, AND DOES NOT ENTITLE YOU TO RELIEF UNDER THE CONTRACT. SEE DOUGHERTY AND OGDEN V UNITED STATES, 102 CT.CL. 249; AND SALIGMAN ET AL. V UNITED STATES, 56 F.SUPP. 505, 507.

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