B-147278, OCT. 13, 1961

B-147278, OCT. 13, 1961

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 25, 1961, WITH ENCLOSURES, FILE R11.4, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING OUR DECISION AS TO WHETHER THERE PROPERLY MAY BE DENIED THE RELIEF SOUGHT BY DAVID E. FISHER, SAN FRANCISCO, CALIFORNIA, UNDER NAVY SALE CONTRACT NO. N63068S-51320, DATED AUGUST 2, 1961, IN VIEW OF THE CIRCUMSTANCES REPORTED.

IN RESPONSE TO SALE INVITATION NO. B-16-62-63068, WHICH WAS ISSUED ON JULY 5, 1961, BY THE CONSOLIDATED SURPLUS SALES OFFICE, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, DAVID E. FISHER SUBMITTED A BID, SUPPORTED BY THE REQUIRED 20 PERCENT BID DEPOSIT IN THE AMOUNT OF $573, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 47A--- ALTERNATE ITEM INCLUDING ITEMS NOS. 45, 46 AND 47--- COVERING 1,428 PAIRS OF GYMNASIUM SHOES AT $0.70 A PAIR, OR FOR A TOTAL PRICE OF $999.60. MR. FISHER'S BID, BEING THE HIGHEST BID RECEIVED FOR ITEM NO. 47A, WAS ACCEPTED ON AUGUST 2, 1961, THEREBY CONSUMMATING CONTRACT NO. N63068S 51320. AFTER RECEIPT OF THE AWARD, MR. FISHER ADVISED THE CONTRACTING OFFICER, BY LETTER DATED AUGUST 5, 1961, THAT AN ERROR HAD BEEN MADE IN HIS BID, IN THAT HE WAS UNDER THE IMPRESSION ITEM NO. 47A COVERED SERVICE SHOES. UPON LEARNING THAT THE ITEM COVERED GYMNASIUM SHOES RATHER THAN SERVICE SHOES MR. FISHER REQUESTED THAT HE BE RELIEVED OF THE AWARD AND THAT HIS BID DEPOSIT BE REFUNDED.

WE FIND NOTHING IN THE RECORD BEFORE US THAT CONSTITUTES A LEGAL BASIS FOR CHARGING THE GOVERNMENT CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF AN ERROR IN ITEM NO. 47A OF MR. FISHER'S BID. STATED BY THE CONTRACTING OFFICER, THE FACT THAT MR. FISHER'S UNIT PRICE BID ON ITEM NO. 47A WAS CONSIDERABLY HIGHER THAN HIS INDIVIDUAL BIDS ON ITEMS NOS. 45, 46 AND 47, THAT WERE INCLUDED WITHIN ALTERNATE ITEM NO. 47A, MAY NOT BE ACCEPTED AS THE BASIS OF NOTICE, SINCE THE UNIT PRICES SUBMITTED BY MR. FISHER ON SEVERAL OTHER ALTERNATE ITEM NUMBERS COVERING SHOES WERE ALSO COMPARABLY HIGHER THAN THE UNIT PRICES QUOTED BY HIM FOR THE INDIVIDUAL ITEMS COMPRISING THE SUBJECT ALTERNATE ITEMS. MOREOVER, OUR OFFICE CONSISTENTLY HAS HELD THAT ANY DIFFERENTIAL WHICH EXISTS BETWEEN THE HIGH BID--- MR. FISHER'S BID IN THIS INSTANCE--- AND ALL OTHER BIDS RECEIVED DOES NOT, IN AND OF ITSELF, PROVIDE A BASIS FOR ESTABLISHING CONSTRUCTIVE NOTICE OF PROBABLE ERROR IN VIEW OF THE WIDE VARIANCE IN BIDS GENERALLY RECEIVED IN SALES OF GOVERNMENT SURPLUS PROPERTY. FINALLY, WHEN CONSIDERING THAT THE TOTAL ACQUISITION COST FOR ITEM NO. 47A IS $1,446, THE RATE OF RETURN, AS REFLECTED BY MR. FISHER'S HIGH BID OF $999.60, CANNOT BE REGARDED AS EXCESSIVE. UNDER THE CIRCUMSTANCES WE MUST CONCLUDE THAT THE CONTRACTING OFFICER'S ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF FACTS AND RECOMMENDATION OF THE CONTRACTING OFFICER DATED SEPTEMBER 11, 1961, ARE RETURNED HEREWITH.