B-147819, JAN. 16, 1962

B-147819: Jan 16, 1962

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FAIR WEATHER: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 8. IT FURTHER APPEARS THAT THE ARMY GENERAL DEPOT REFUSED TO MAKE AN AWARD OF ITEMS NOS. 196 AND 197 UNDER INVITATION NO. 11 FOR THE REASON THAT THE PRICES OFFERED BY YOU WERE CONSIDERED TOO LOW FOR THE COMPRESSORS. IT IS YOUR BASIC POSITION THAT SINCE YOU HAD SUBMITTED THE HIGHEST BIDS FOR ALL ITEMS IN QUESTION UNDER THE TWO INVITATIONS. 131 AND 132 UNDER INVITATION NO. 16 WAS A PROPER FORM OF DEPOSIT AND. YOUR BID SHOULD NOT HAVE BEEN REJECTED. WITH RESPECT TO THE ARMY GENERAL DEPOT'S WITHDRAWAL FROM THE SALE OF ITEMS NOS. 196 AND 197 UNDER INVITATION NO. 11 AFTER THE BIDS WERE OPENED. YOUR ATTENTION IS DIRECTED TO ARTICLE 3 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION WHICH STATES.

B-147819, JAN. 16, 1962

TO MR. JOHN G. FAIR WEATHER:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 8, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF MAY 9, 1961, DISALLOWING YOUR CLAIM FOR APPROXIMATELY $37,500 ALLEGEDLY REPRESENTING DAMAGES SUSTAINED BY YOU AS A RESULT OF THE FAILURE TO ACCEPT BIDS SUBMITTED BY YOU FOR THE PURCHASE OF CERTAIN ITEMS OF GOVERNMENT SURPLUS PROPERTY.

IT APPEARS THAT IN RESPONSE TO SALE INVITATION NO. DA-EUC-91-569-S 59-11, ISSUED ON MAY 4, 1959, BY THE PROPERTY DISPOSAL OFFICER, UNITED STATES ARMY GENERAL DEPOT, KAISERSLAUTERN, GERMANY, YOU SUBMITTED THE HIGH BID OF $3,010 EACH ON ITEMS NOS. 196 AND 197, COVERING ONE RECIPROCATING COMPRESSOR UNDER EACH OF THESE ITEMS. IN ADDITION, IT APPEARS THAT YOU SUBMITTED BIDS IN RESPONSE TO INVITATION NO. DA-EUC 91-569-S-59-16, DATED MAY 26, 1959, ALSO ISSUED BY THE AFOREMENTIONED ARMY GENERAL DEPOT ON ITEMS NOS. 127, 129, 131 AND 132 COVERING ONE MOTORIZED ROAD GRADER UNDER EACH ITEM IN THE TOTAL AMOUNT OF $24,020 FOR THE FOUR ITEMS. IT FURTHER APPEARS THAT THE ARMY GENERAL DEPOT REFUSED TO MAKE AN AWARD OF ITEMS NOS. 196 AND 197 UNDER INVITATION NO. 11 FOR THE REASON THAT THE PRICES OFFERED BY YOU WERE CONSIDERED TOO LOW FOR THE COMPRESSORS. MOREOVER, THE DEPOT WOULD NOT ACCEPT YOUR BID ON ITEMS NOS. 127, 129, 131 AND 132 UNDER INVITATION NO. 16 BECAUSE YOU DID NOT FURNISH A PROPER BID DEPOSIT.

IT IS YOUR BASIC POSITION THAT SINCE YOU HAD SUBMITTED THE HIGHEST BIDS FOR ALL ITEMS IN QUESTION UNDER THE TWO INVITATIONS, THE GOVERNMENT HAD NO LEGAL RIGHT TO WITHDRAW FROM AWARD ITEMS NOS. 196 AND 197 UNDER INVITATION NO. 11; ALSO, THAT THE BANK GUARANTEE FURNISHED AS A BID DEPOSIT FOR YOUR BID ON ITEMS NOS. 127, 129, 131 AND 132 UNDER INVITATION NO. 16 WAS A PROPER FORM OF DEPOSIT AND, THEREFORE, YOUR BID SHOULD NOT HAVE BEEN REJECTED. YOU STATE THAT YOU LOST $7,500 IN FULFILLING CONTRACTS WHICH YOU HAD MADE FOR RESALE OF THE PROPERTY COVERED BY THE SUBJECT ITEMS AND, IN ADDITION, YOU LOST ONE OF YOUR MOST VALUED CLIENTS WHOSE PREVIOUS ORDERS RESULTED IN AN ANNUAL PROFIT TO YOU OF APPROXIMATELY $30,000.

WITH RESPECT TO THE ARMY GENERAL DEPOT'S WITHDRAWAL FROM THE SALE OF ITEMS NOS. 196 AND 197 UNDER INVITATION NO. 11 AFTER THE BIDS WERE OPENED, YOUR ATTENTION IS DIRECTED TO ARTICLE 3 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION WHICH STATES, IN PERTINENT PART, THAT "THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS.' IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT IRRESPECTIVE OF SUCH RESERVATION AN INVITATION FOR BIDS DOES NOT IMPART AN OBLIGATION TO ACCEPT ANY OF THE BIDS RECEIVED AND ALL BIDS MAY BE REJECTED WHERE IT IS DETERMINED TO BE IN THE GOVERNMENT'S INTEREST TO DO SO. O-BRIEN V. CARNEY, 6 F.SUPP. 761; SCOTT V. UNITED STATES, 44 CT.CL. 524; COLORADO PAVING CO. V. MURPHY, 78 F.28. CONSEQUENTLY, WE FIND NO ABUSE IN THE EXERCISE OF ITS DISCRETION BY THE ARMY GENERAL DEPOT TO WITHDRAW FROM AWARD ITEMS NOS. 196 AND 197 UNDER INVITATION NO. 11 SINCE THE DEPOT CONSIDERED THE PRICES QUOTED BY YOU TO BE TOO LOW FOR THE RECIPROCATING COMPRESSORS WHICH JUST A FEW MONTHS PRIOR TO THE ISSUANCE OF THE INVITATION HAD BEEN REBUILT AND WERE IN EXCELLENT CONDITION.

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

APART FROM THE QUESTION AS TO THE PROPRIETY OF THE ACTION TAKEN BY THE DEPARTMENT OF THE ARMY UNDER THE TWO INVITATIONS, AS HERETOFORE DETERMINED, YOUR CLAIM IS ONE WHOLLY FOR UNLIQUIDATED DAMAGES. IN THAT REGARD, WE GENERALLY DO NOT CONSIDER IT NECESSARY TO CONSIDER IN DETAIL THE MERITS OF SUCH A CLAIM AS HAS BEEN DONE IN THIS CASE. SUFFICE IT TO SAY THAT THE CLAIM IS OF A TYPE WHICH THE ACCOUNTING OFFICERS OF THE GOVERNMENT GENERALLY MUST DECLINE TO CONSIDER ON ITS MERITS BECAUSE OF THE IMPRACTICABILITY OF DECIDING SUCH A CLAIM WITHOUT TAKING TESTIMONY, CROSS- EXAMINING WITNESSES, AND WEIGHING CONFLICTING EVIDENCE, AND OUR LACK OF FACILITIES FOR SUCH PROCEEDINGS. SEE 21 COMP. DEC. 134.

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