B-169550, JUN. 30, 1970

B-169550: Jun 30, 1970

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CONTRACT CANCELLATION REQUEST FOR REINSTATEMENT OF AWARD OR DAMAGES WHERE AWARD TO PROTESTANT WAS CANCELED ON DISCOVERY CONTRACT CLERK HAD INOCRRECTLY RECORDED HIGHEST BID FOR SURPLUS MATERIAL AS LOWER THAN PROTESTANT'S. IS DENIED SINCE DISPOSITION OF GOVERNMENT SURPLUS. REQUIRES AWARD ON RESPONSIBLE BID WHICH IS MOST ADVANTAGEOUS TO GOVERNMENT. AS SECOND HIGHEST BIDDER WAS UNAUTHORIZED. IS NOT BINDING ON UNITED STATES. TO ANSAM METALS CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED APRIL 10. IN WHICH YOU PROTESTED AGAINST THE CANCELLATION OF AN AWARD WHICH WAS MADE TO YOUR CONCERN ON MARCH 20. THE RECORD INDICATES THAT THE AWARD WAS MADE AFTER SEALED BIDS WERE OPENED ON MARCH 17.

B-169550, JUN. 30, 1970

SALES--BIDS--MISTAKES--CONTRACT CANCELLATION REQUEST FOR REINSTATEMENT OF AWARD OR DAMAGES WHERE AWARD TO PROTESTANT WAS CANCELED ON DISCOVERY CONTRACT CLERK HAD INOCRRECTLY RECORDED HIGHEST BID FOR SURPLUS MATERIAL AS LOWER THAN PROTESTANT'S, WITH AWARD THEREAFTER BEING MADE TO HIGH BIDDER, IS DENIED SINCE DISPOSITION OF GOVERNMENT SURPLUS, UNDER 40 U.S.C. 484, REQUIRES AWARD ON RESPONSIBLE BID WHICH IS MOST ADVANTAGEOUS TO GOVERNMENT. ACCORDINGLY, AWARD TO PROTESTANT, AS SECOND HIGHEST BIDDER WAS UNAUTHORIZED, AND ACT OF GOVERNMENT AGENT IN EXCESS OF AUTHORITY CONFERRED BY STATUTE OR REGULATION, WHETHER DUE TO MISTAKE OR OTHERWISE, IS NOT BINDING ON UNITED STATES. SEE COMP. GEN. DECS. AND CT. CASE CITED.

TO ANSAM METALS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 10, 1970, IN WHICH YOU PROTESTED AGAINST THE CANCELLATION OF AN AWARD WHICH WAS MADE TO YOUR CONCERN ON MARCH 20, 1970, BY THE PHILADELPHIA DEFENSE SURPLUS SALES OFFICE OF THE DEFENSE SUPPLY AGENCY (DSA) FOR ITEM NO. 56, MANGANESE BRONZE, SOLIDS, SCRAP, UNDER INVITATION FOR BIDS (IFB) NO. 11-0099.

THE RECORD INDICATES THAT THE AWARD WAS MADE AFTER SEALED BIDS WERE OPENED ON MARCH 17, 1970, AND YOUR CONCERN WAS ERRONEOUSLY DETERMINED TO BE THE HIGHEST BIDDER FOR THE SCRAP AT A UNIT PRICE OF .35555. ON APRIL 9, 1970, A REPRESENTATIVE OF THE BARTH SMELTING AND REFINING CORPORATION CONTACTED THE SALES OFFICE AND STATED THAT BARTH SUBMITTED THE HIGHEST BID FOR THIS ITEM AT A UNIT PRICE OF ?3626. THE CONTRACTING OFFICER SUBSEQUENTLY VERIFIED BARTH'S BID OF ?3626 A UNIT, AND DETERMINED THAT THE CONTRACT CLERK AT THE FACILITY HAD INCORRECTLY RECORDED THE UNIT PRICE AT .03626 WHEN THE BIDS FOR THE ITEM WERE PREPARED FOR THE KEY PUNCH OPERATOR. AFTER BEING INFORMED THAT YOUR CONCERN HAD NOT REMOVED THE SCRAP, THE CONTRACTING OFFICER CANCELLED THE AWARD TO YOUR FIRM AND AWARDED THE CONTRACT TO BARTH ON APRIL 9, 1970.

YOU MAINTAIN THAT YOUR CONTRACT WAS ILLEGALLY CANCELLED AND YOU REQUEST THAT IT BE REINSTATED OR THAT DAMAGES IN THE AMOUNT OF $1,320 BE ALLOWED IN YOUR FAVOR.

AS IN THE CASE OF THE PROCUREMENT OF SUPPLIES AND SERVICES BY THE GOVERNMENT PURSUANT TO THE STATUTORY REQUIREMENTS GOVERNING FORMAL ADVERTISING, THE STATUTE GOVERNING THE DISPOSITION OF SURPLUS GOVERNMENT PROPERTY, 40 U.S.C. 484, REQUIRES THAT ADVERTISEMENTS FOR BIDS BE MADE THROUGH SUCH METHODS, AND ON SUCH TERMS, AS SHALL PERMIT FULL AND FREE COMPETITION WHICH IS CONSISTENT WITH THE VALUE AND NATURE OF THE PROPERTY, AND THAT AWARD BE MADE TO THE RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. SUCH REQUIREMENT FOR AWARD ON THE BASIS OF THE MOST ADVANTAGEOUS BID TO THE GOVERNMENT, WAS ALSO SET FORTH UNDER ARTICLE AE OF THE SPECIAL SEALED BID CONDITIONS OF THE SALE. THESE PROVISIONS REQUIRE ACCEPTANCE OF THE HIGHEST RESPONSIVE BID SUBMITTED BY A RESPONSIBLE BIDDER IN RESPONSE TO THE INVITATION FOR BIDS. COMPARE B- 162922, DECEMBER 13, 1967; 36 COMP. GEN. 94 (1956). ACCORDINGLY, THE AWARD OF THE CONTRACT TO YOUR FIRM, THE SECOND HIGHEST BIDDER, MUST BE CONSIDERED AS HAVING BEEN UNAUTHORIZED.

IT IS WELL SETTLED THAT THE ACT OF A GOVERNMENT AGENT IN EXCESS OF THE AUTHORITY CONFERRED ON HIM BY STATUTE OR REGULATION, WHETHER CAUSED AS A RESULT OF MISTAKE OR OTHERWISE, IS NOT BINDING ON THE UNITED STATES, FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380 (1947). THE UNITED STATES HAS POWER TO ACT ONLY THROUGH ITS AGENTS WHOSE AUTHORITY, AND THE MANNER OF EXERCISE THEREOF, IS PRESCRIBED AND LIMITED BY STATUTE, REGULATION, AND ADMINISTRATIVE AND JUDICIAL DETERMINATION. TO MAKE THE GOVERNMENT LIABLE FOR LOSSES SUFFERED BY A BIDDER AS A RESULT OF A CONTRACTING OFFICER'S UNAUTHORIZED ACTION WOULD, IN EFFECT, PERMIT AGENTS OF THE GOVERNMENT TO OBLIGATE THE UNITED STATES IN DIRECT CONTRAVENTION OF THOSE LIMITATIONS AND PRESCRIPTION, AND NULLIFY THE BASIC PURPOSE OF THE STATUTES, REGULATIONS AND DETERMINATIONS. COMPARE 46 COMP. GEN. 348 (1966).

IN VIEW OF THE FOREGOING, WE DO NOT PERCEIVE ANY LEGAL BASIS FOR REINSTATING THE AWARD WHICH WAS ERRONEOUSLY MADE TO YOUR FIRM, OR FOR ALLOWING YOUR CONCERN THE DAMAGES IT MAY HAVE SUFFERED AS A RESULT OF THAT AWARD. THEREFORE, YOUR PROTEST AND RELATED CLAIM ARE DENIED.