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B-168258, JAN. 23, 1970

B-168258 Jan 23, 1970
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TO SURPLUS TIRE SALES: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16. WHICH DENIED YOUR REQUEST FOR RELIEF FROM A MISTAKE IN BID MADE IN RESPONSE TO A LOCAL SPOT BID SALE WHICH WAS THE BASIS OF CONTRACT NO. 44-0030-004. WE DENIED YOUR REQUEST FOR RELIEF BECAUSE NO ERROR WAS ALLEGED UNTIL AFTER AWARD. DECISION WAS REACHED THROUGH THE CONSIDERATION OF ERRONEOUS INFORMATION REPORTED BY THE SALES ACTIVITY. WHERE NO CONVINCING CONTRARY EVIDENCE IS PRESENTED. WE HAVE NO ALTERNATIVE BUT TO APPLY APPLICABLE PRINCIPLES OF LAW TO THE FACTS AS ADMINISTRATIVELY REPORTED. THE RIGHT OF A SUCCESSFUL BIDDER TO REQUEST RELIEF FROM THE CONSEQUENCES OF AN ERROR IN BID IS INHERENT IN THE FEDERAL COMMON LAW RESPECTING CONTRACTS AND NO PROVISION IS NECESSARY TO VEST SUCH RIGHT IN BIDDERS.

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B-168258, JAN. 23, 1970

CONTRACTS--MISTAKES--EVIDENCE DECISION TO SURPLUS TIRE SALES REAFFIRMING DECISION OF DECEMBER 9, 1969, DENYING REQUEST FOR RELIEF BECAUSE OF ERROR ALLEGED AFTER AWARD AND BECAUSE ACCEPTANCE WITHOUT NOTICE OF ERROR CONSUMMATED A VALID AND BINDING CONTRACT.

TO SURPLUS TIRE SALES:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1969, REQUESTING RECONSIDERATION OF OUR DECISION OF DECEMBER 9, 1969, WHICH DENIED YOUR REQUEST FOR RELIEF FROM A MISTAKE IN BID MADE IN RESPONSE TO A LOCAL SPOT BID SALE WHICH WAS THE BASIS OF CONTRACT NO. 44-0030-004, AWARDED BY DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA.

WE DENIED YOUR REQUEST FOR RELIEF BECAUSE NO ERROR WAS ALLEGED UNTIL AFTER AWARD, AND BECAUSE ACCEPTANCE OF YOUR BID IN GOOD FAITH, WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE THEREOF, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.

YOU ALLEGE AS A BASIS FOR RECONSIDERATION THAT THE DECEMBER 9, 1969, DECISION WAS REACHED THROUGH THE CONSIDERATION OF ERRONEOUS INFORMATION REPORTED BY THE SALES ACTIVITY. IN THIS RESPECT, WE ACCEPT AS BONA FIDE THE ADMINISTRATIVE VERSION OF FACTUAL DISPUTES AND, AS HERE, WHERE NO CONVINCING CONTRARY EVIDENCE IS PRESENTED, WE HAVE NO ALTERNATIVE BUT TO APPLY APPLICABLE PRINCIPLES OF LAW TO THE FACTS AS ADMINISTRATIVELY REPORTED. YOU STATE THAT THE TERMS OF SALE SPECIFICALLY PROVIDED THAT THE BIDDER COULD ASK FOR RELIEF ON THE GROUNDS OF MISTAKE IN BID. HOWEVER, WE FIND NO SUCH PROVISION IN THE GENERAL SALES TERMS AND CONDITIONS. THE RIGHT OF A SUCCESSFUL BIDDER TO REQUEST RELIEF FROM THE CONSEQUENCES OF AN ERROR IN BID IS INHERENT IN THE FEDERAL COMMON LAW RESPECTING CONTRACTS AND NO PROVISION IS NECESSARY TO VEST SUCH RIGHT IN BIDDERS. WHETHER RELIEF MAY BE GRANTED DEPENDS, OF COURSE, ON THE APPLICATION OF LEGAL PRINCIPLES TO THE FACTS OF RECORD. MOREOVER, SUCH QUESTIONS OF LAW NECESSARILY ARE FOR DETERMINATION BY OUR OFFICE. SEE 15 COMP. GEN. 744 (1936); 17 ID. 817 (1938); 28 ID. 261 (1948).

WHILE YOU STATE IN YOUR DECEMBER 16 LETTER THAT YOU DID NOTIFY THE SALES OFFICER IMMEDIATELY FOLLOWING THE CONCLUSION OF THE SALE THAT YOU HAD MADE A MISTAKE IN YOUR BID FOR ITEM 160 AND THAT YOU DESIRED TO BE RELIEVED OF THE AWARD ON GROUNDS OF MISTAKE, THE ADMINISTRATIVE REPORT STATES THAT WHILE YOU WERE IN ATTENDANCE AND THE HIGH BID AND THE HIGH BIDDER WERE ANNOUNCED PRIOR TO MAKING THE AWARD, NO ALLEGATION OF ERROR WAS MADE BY YOU UNTIL AFTER AWARD.

WHILE YOU ALLEGE FURTHER THAT CORRECTIONS WERE MADE INFORMALLY ON ANOTHER SALE FOR ANOTHER BIDDER, THE RECORD BEFORE US NEITHER SUPPORTS NOR REFUTES THIS ALLEGATION. IN ANY EVENT, EVEN IF SUCH BE THE CASE, IT WOULD NOT SERVE AS A LEGAL PRECEDENT TO ALLOW RELIEF IN THIS INSTANCE.

UPON REVIEW OF THE FACTS OF RECORD AS SUPPLEMENTED BY YOUR LETTER OF DECEMBER 16, 1969, WE MUST CONCLUDE THAT NO LEGAL BASES EXIST FOR GRANTING THE RELIEF REQUESTED. WE NOTE YOUR STATEMENT THAT IF RELIEF IS NOT AUTHORIZED BY OUR OFFICE, YOU WILL REQUEST THE ARMED SERVICES BOARD OF CONTRACT APPEALS TO RULE ON YOUR CLAIM OF ERROR. HOWEVER, WE INVITE YOUR ATTENTION TO A LETTER OF OCTOBER 24, 1969, FROM THE COUNSEL, DEFENSE LOGISTICS SERVICES CENTER, TO YOU, WHEREIN YOU WERE ADVISED THAT "MISTAKE DETERMINATIONS" ARE NOT SUBJECT TO APPEAL UNDER THE DISPUTES CLAUSE OF YOUR CONTRACT OF SALE AND THAT YOUR "APPEAL" REQUEST WOULD NOT BE DOCKETED WITH THE BOARD. WE CONCUR IN THIS STATEMENT.

IN VIEW OF THE FOREGOING, OUR DECISION OF DECEMBER 9, 1969, IS SUSTAINED.

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