B-175522, APR 21, 1972

B-175522: Apr 21, 1972

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ALTHOUGH THE WIDE RANGE OF BID PRICES USUALLY SUBMITTED IN SURPLUS SALES CONTRACTS GENERALLY ARE NOT DEEMED TO BE CONSTRUCTIVE NOTICE OF ERROR. KAMBITSCH'S BID AND THAT OF THE NEXT HIGH BIDDER WAS SUFFICIENT TO PUT THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF MISTAKE. KREGER: REFERENCE IS MADE TO LETTER DATED MARCH 21. BIDS WERE INVITED UNDER THE SALES INVITATION FOR 43 ITEMS OF MISCELLANEOUS PROPERTY LOCATED AT THREE SITES IN ARIZONA. BIDS WERE OPENED ON FEBRUARY 15. ITEM 42 OF THE SALE WAS DESCRIBED AS FOLLOWS: "FORKLIFT. THE ACQUISITION COST OF THE FORKLIFT WAS $5. THE UNILATERAL MISTAKE MADE BY THE BIDDER WAS SO APPARENT THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE PROBABILITY OF MISTAKE PRIOR TO AWARD.

B-175522, APR 21, 1972

CONTRACTS - SURPLUS PROPERTY SALES - MISTAKE IN BID - REQUEST FOR RESCISSION CONCERNING A REQUEST OF JAMES KAMBITSCH FOR RELIEF BY RECISSION OF A SURPLUS PROPERTY SALES CONTRACT AWARDED UNDER A SALES INVITATION ISSUED BY THE GENERAL SERVICES ADMINISTRATION. IT APPEARS THAT MR. KAMBITSCH INTENDED TO BID ON A GRADER, DESCRIBED IN ITEM 41 OF THE INVITATION, BUT BY MISTAKE HE SUBMITTED THE HIGH BID ON A FORKLIFT, DESCRIBED IN ITEM 42. ALTHOUGH THE WIDE RANGE OF BID PRICES USUALLY SUBMITTED IN SURPLUS SALES CONTRACTS GENERALLY ARE NOT DEEMED TO BE CONSTRUCTIVE NOTICE OF ERROR, IN THE INSTANT CASE THE WIDE DISPARITY BETWEEN MR. KAMBITSCH'S BID AND THAT OF THE NEXT HIGH BIDDER WAS SUFFICIENT TO PUT THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF MISTAKE. ACCORDINGLY, THE CONTRACT MAY BE RESCINDED AS REQUESTED.

TO MR. RODERICK F. KREGER:

REFERENCE IS MADE TO LETTER DATED MARCH 21, 1972, WITH ENCLOSURES, FROM YOUR GENERAL COUNSEL, SUBMITTING FOR DECISION THE REQUEST OF MR. JAMES KAMBITSCH, PEARCE, ARIZONA, FOR RELIEF FROM A MISTAKE IN BID ALLEGED AFTER AWARD OF CONTRACT NO. GS-09-DP-(S)-2-1722 UNDER SALES INVITATION NO. 9DPSSF)72-89, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, SALES BRANCH, PPD, PMDS, SOUTH SAN FRANCISCO, CALIFORNIA.

BIDS WERE INVITED UNDER THE SALES INVITATION FOR 43 ITEMS OF MISCELLANEOUS PROPERTY LOCATED AT THREE SITES IN ARIZONA. BIDS WERE OPENED ON FEBRUARY 15, 1972.

ITEM 42 OF THE SALE WAS DESCRIBED AS FOLLOWS:

"FORKLIFT, 1960 ROSS, 6 CYL, GASOLINE ENGINE, PNEUMATIC TIRES, S/N 5388, FS. #5289."

THE ACQUISITION COST OF THE FORKLIFT WAS $5,205 AND AN UPSET PRICE OF $1,000 HAD BEEN ESTABLISHED FOR THE ITEM. OF THE 28 BIDS RECEIVED FOR ITEM 42, MR. KAMBITSCH SUBMITTED THE HIGHEST BID AT $3,360. THE OTHER BIDS RECEIVED RANGED FROM A LOW OF $42.50 TO THE SECOND HIGH OF $1,550.

BY TELEPHONE CALL ON FEBRUARY 23, 1972, MR. KAMBITSCH CLAIMED THAT HE INTENDED TO BID ON THE DESCRIBED GRADER IN ITEM 41 AND THAT HE MADE AN ERROR IN SUBMITTING THE BID ON THE FORKLIFT IN ITEM 42 INSTEAD. THEREAFTER, BY LETTER OF FEBRUARY 24, 1972, MR. KAMBITSCH CONFIRMED THE INFORMATION FURNISHED BY TELEPHONE AND REQUESTED THAT THE BID FOR THE FORKLIFT BE WITHDRAWN. IN THAT CONNECTION, HE STATED THAT IN THE TYPE OF WORK HE PERFORMS HE HAS NO USE FOR A FORKLIFT.

THE CONTRACTING OFFICER HAS REPORTED THAT IN VIEW OF THE ACQUISITION COST OF ITEM 42 AND THE UPSET PRICE ESTABLISHED, THE UNILATERAL MISTAKE MADE BY THE BIDDER WAS SO APPARENT THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE PROBABILITY OF MISTAKE PRIOR TO AWARD. YOUR GENERAL COUNSEL CONCURS.

ALTHOUGH A WIDE RANGE OF BID PRICES IN SURPLUS PROPERTY SALES ORDINARILY IS NOT DEEMED TO BE CONSTRUCTIVE NOTICE OF ERROR BECAUSE OF THE MANY POSSIBLE USES TO WHICH THE PROPERTY MAY BE PUT, WE FEEL THAT THE WIDE DISPARITY BETWEEN THE HIGH BID SUBMITTED BY MR. KAMBITSCH AND THE UPSET PRICE AND THE OTHER BIDS RECEIVED SHOULD HAVE PUT THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF A MISTAKE AND THAT HE SHOULD HAVE VERIFIED THE BID PRIOR TO AWARD. SEE B 173931, OCTOBER 21, 1971; B- 174525, DECEMBER 20, 1971.

ACCORDINGLY, AS ADMINISTRATIVELY RECOMMENDED, THE SALES CONTRACT MAY BE RESCINDED WITHOUT LIABILITY TO MR. JAMES KAMBITSCH.