B-182553, DEC 17, 1974

B-182553: Dec 17, 1974

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CONTRACTING OFFICER WAS NOT ON ACTUAL OR CONSTRUCTIVE NOTICE OF MISTAKE IN BID OF HIGH BIDDER ON SALE OF SURPLUS TRUCKS WHO QUOTED VARIANT PRICES FOR TWO DIFFERENT MODELS OF SURPLUS 5-TON TRUCKS BECAUSE BIDDING OF SEVERAL BIDDERS ON TWO DIFFERENT MODELS EVIDENCES PATTERN OF BIDDING WHICH COULD NOT REASONABLY HAVE INDICATED ANY ERROR. 153 AND 155 WERE DESCRIBED IN THE INVITATION AS 5-TON INTERNATIONAL HARVESTER CO. WHILE ITEM 154 WAS DESCRIBED AS A 5-TON INTERNATIONAL HARVESTER CO. THESE WERE AMONG MANY TRUCKS OFFERED FOR SALE IN THE INVITATION. THE BID OF THE CORPORATION WAS ACCEPTED AS TO ITEM 154 ON JULY 12. SAM WINER HAS ALLEGED ERROR STATING THAT IT HAD INTENDED TO BID ON MODEL M 52 TRUCKS ONLY AND THAT THE BID ON ITEM 154 WAS BASED ON THE ASSUMPTION THAT ITEM 154 COVERED A MODEL M-52 TRUCK.

B-182553, DEC 17, 1974

CONTRACTING OFFICER WAS NOT ON ACTUAL OR CONSTRUCTIVE NOTICE OF MISTAKE IN BID OF HIGH BIDDER ON SALE OF SURPLUS TRUCKS WHO QUOTED VARIANT PRICES FOR TWO DIFFERENT MODELS OF SURPLUS 5-TON TRUCKS BECAUSE BIDDING OF SEVERAL BIDDERS ON TWO DIFFERENT MODELS EVIDENCES PATTERN OF BIDDING WHICH COULD NOT REASONABLY HAVE INDICATED ANY ERROR.

SAM WINER MOTORS, INC.:

THE DEFENSE PROPERTY DISPOSAL REGION OFFICE, COLUMBUS, OHIO, BY SALES INVITATION NO. 27-5002 REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS SURPLUS ITEMS. ITEMS 150, 151, 152, 153 AND 155 WERE DESCRIBED IN THE INVITATION AS 5-TON INTERNATIONAL HARVESTER CO. TRUCK -TRACTORS, MODEL M-52, WHILE ITEM 154 WAS DESCRIBED AS A 5-TON INTERNATIONAL HARVESTER CO. TRUCK-TRUCTOR, MODEL 1890-151-WB. THESE WERE AMONG MANY TRUCKS OFFERED FOR SALE IN THE INVITATION. SAM WINER MOTORS, INC. (SAM WINER), SUBMITTED A BID OFFERING TO PURCHASE THE TRUCKS COVERED BY ITEMS 150, 151, 152, 153, AND 155 FOR $1215 EACH AND THE TRUCK COVERED BY ITEM 154 FOR $1015. THE BID OF THE CORPORATION WAS ACCEPTED AS TO ITEM 154 ON JULY 12, 1974.

BY LETTER DATED JULY 20, 1974 AND BY SUBSEQUENT CORRESPONDENCE, SAM WINER HAS ALLEGED ERROR STATING THAT IT HAD INTENDED TO BID ON MODEL M 52 TRUCKS ONLY AND THAT THE BID ON ITEM 154 WAS BASED ON THE ASSUMPTION THAT ITEM 154 COVERED A MODEL M-52 TRUCK. SAM WINER EXPLAINED IN ITS LETTER OF JULY 20, 1974, THAT ITS BID ON ITEM 154 WAS $200 LOWER THAN ITS BIDS ON THE OTHER TRUCKS BECAUSE THE TRUCK COVERED BY ITEM 154 SEEMED "MORE INCOMPLETE" THAN THE OTHER TRUCKS.

IT IS WELL ESTABLISHED THAT WHEN A BID HAS BEEN ACCEPTED THE BIDDER MUST MUST BEAR THE CONSEQUENCES OF A MISTAKE IN BID, UNLESS THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE MISTAKE PRIOR TO AWARD. SALIGMAN V. UNITED STATES, 56 F. SUPP. 505 (E. D. PA., 1944); 48 COMP. GEN. 672 (1969). A TEST OF REASONABLENESS IS APPLIED IN DETERMINING WHETHER THERE WAS CONSTRUCTIVE NOTICE; THAT IS, WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE THERE WERE ANY FACTORS WHICH REASONABLY SHOULD HAVE RAISED THE PRESUMPTION OF ERROR IN THE MIND OF THE CONTRACTING OFFICER, WITHOUT IMPOSING UPON THE CONTRACTING OFFICER THE BURDEN OF EXAMINING EVERY BID FOR POSSIBLE ERROR BY THE BIDDER. WENDER PRESSES, INC. V. UNITED STATES, 170 CT. CL. 483 (1965); 49 COMP. GEN. 272 (1969).

IN RECOMMENDING RECISSION OF THE CONTRACT, AGENCY COUNSEL STATES THAT THE DISPARATE VALUE BETWEEN THE BIDS ON ITEM 154 AND THE BIDS ON THE OTHER TRUCKS EVIDENCED A BIDDING PATTERN WHICH SHOULD HAVE ALERTED THE CONTRACTING OFFICER TO THE POSSIBILITY OF ERROR. IN THIS CONNECTION, A A CASE IS CITED IN WHICH WE HELD THAT A CERTAIN PATTERN OF BIDDING SHOULD HAVE PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF ERROR WHEN THE PURCHASER BID THE SAME PRICE ON ALL ITEMS OF TIRES WHILE OTHER BIDDERS SUBMITTED MUCH LOWER BIDS FOR THE ONE ITEM OF SMALLER TIRES. B-181197 JUNE 10, 1974.

HOWEVER, THE PRESENT CASE WE BELIEVE IS DISTINGUISHABLE ON THE FACTS. SAM WINER'S BID ON ITEM 154 WAS $200 LESS THAN ITS BID ON THE OTHER ITEMS ($1215-1015). FURTHERMORE, THE SECOND HIGH BID WAS $300 LESS THAN THAT BIDDER'S BID ON THE OTHER TRUCKS (,1100-$800), AND THE THIRD LOW BID ON ITEM 154 WAS $561 COMPARED TO THAT BIDDER'S BID OF $728 ON ITEM 153. MOREOVER, THE 8 BIDS ON ITEM 154 REFLECTED A NORMAL UPWARD PROGRESSION IN THAT NONE WAS OUT OF LINE WITH THE NEXT HIGH BID. IT IS ALSO NOTED THAT ITEM 154 RECEIVED A HIGH BID OF $1015, WHILE THE OTHER TRUCKS WERE SOLD FOR $3471.79 AND $3671.79 IT IS OUR VIEW THAT THE BIDDING EVIDENCES A BIDDING PATTERN WHICH COULD NOT REASONABLY HAVE INDICATED ANY ERROR.

IN THESE CIRCUMSTANCES, IT IS OUR OPINION THAT THE CONTRACTING OFFICER SHOULD NOT HAVE SUSPECTED AN ERROR IN SAM WINER'S BID FROM A REVIEW OF THE BIDDING. B-181028, JULY 11, 1974.

ACCORDINGLY, WE MUST CONCLUDE THAT A VALID AND BINDING CONTRACT WAS CREATED BY THE GOVERNMENT'S ACCEPTANCE OF SAM WINER'S BID, AND ITEM 154 OF CONTRACT NO. 27-5002-289 MAY NOT BE CANCELED WITHOUT LIABILITY TO THE CORPORATION.