B-124150, JUN. 13, 1955
Highlights
TO THE HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF MAY 31. IN VIEW OF THE ERROR ALLEGED TO HAVE BEEN MADE IN THE COMPANY'S BID WHICH WAS SUBMITTED IN RESPONSE TO BID INVITATION NO. 30-144-S-55-22. UPON ACCEPTANCE AS TO ITEM NO. 7 WAS ASSIGNED CONTRACT NO. 30-144-S-55-295/S). WHICH WAS IDENTIFIED AS A WARNER AND SWASEY TURRET LATHE. WHEREAS THE CORRECT SERIAL NUMBER OF THE LATHE WAS 422646. THE DIFFERENCE BETWEEN THE SERIAL NUMBERS APPARENTLY IS OF MATERIAL SIGNIFICANCE TO DEALERS IN SUCH EQUIPMENT IN THAT THE FORMER DENOTES A MORE RECENT AND EXPENSIVE MODEL THAN THE LATTER. THAT FACT WAS RECOGNIZED BY THE DISPOSAL OFFICER WHOSE FINDING AND RECOMMENDATIONS IN LETTER OF MAY 3.
B-124150, JUN. 13, 1955
TO THE HONORABLE SECRETARY OF THE ARMY:
REFERENCE IS MADE TO YOUR LETTER OF MAY 31, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THERE MAY BE GRANTED THE RELIEF SOUGHT BY THE GRAHAM MACHINE TOOL COMPANY, IN VIEW OF THE ERROR ALLEGED TO HAVE BEEN MADE IN THE COMPANY'S BID WHICH WAS SUBMITTED IN RESPONSE TO BID INVITATION NO. 30-144-S-55-22, DATED MARCH 14, 1955, ISSUED BY THE WATERVLIET ARSENAL, AND UPON ACCEPTANCE AS TO ITEM NO. 7 WAS ASSIGNED CONTRACT NO. 30-144-S-55-295/S).
THE RECORD DISCLOSES THAT OF THE VARIOUS UNITS OF EQUIPMENT LISTED IN THE INVITATION, THE GRAHAM MACHINE TOOL COMPANY OFFERED TO PURCHASE ITEM NO. 7 FOR $1,666.99, WHICH WAS IDENTIFIED AS A WARNER AND SWASEY TURRET LATHE, SERIAL NO. 722646, WHEREAS THE CORRECT SERIAL NUMBER OF THE LATHE WAS 422646. THE DIFFERENCE BETWEEN THE SERIAL NUMBERS APPARENTLY IS OF MATERIAL SIGNIFICANCE TO DEALERS IN SUCH EQUIPMENT IN THAT THE FORMER DENOTES A MORE RECENT AND EXPENSIVE MODEL THAN THE LATTER. THAT FACT WAS RECOGNIZED BY THE DISPOSAL OFFICER WHOSE FINDING AND RECOMMENDATIONS IN LETTER OF MAY 3, 1955, CONCLUDE "* * * THAT THE SERIAL NUMBER WAS MATERIAL; THAT THE BIDDER WAS MISLED THEREBY; AND THAT HE OUGHT NOT BE COMPELLED TO PERFORM THE CONTRACT.' GRAHAM MACHINE TOOL COMPANY HAS REFUSED TO ACCEPT DELIVERY AND REQUESTS RETURN OF ITS BID DEPOSIT OF $350.
HAD THE BIDDER NOT RESCINDED THE CONTRACT BY ITS REFUSAL TO ACCEPT THE EQUIPMENT, BUT INSTEAD, TAKEN POSSESSION THEREOF WITHOUT PROTEST, THERE MIGHT BE SOME DOUBT AS TO ITS RIGHT TO THE RELIEF SOUGHT. BOARD OF TRUSTEES, ETC. V. O. D. WILSON CO., 133 F.2D 399; W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31. BUT WHERE, AS HERE, THE SALE HAS NOT BEEN CONSUMMATED BY DELIVERY OF THE PROPERTY, NOR PAYMENT MADE OF THE PURCHASE PRICE STIPULATED BECAUSE OF A GROSS MISDESCRIPTION OF THE ARTICLE, IT HAS BEEN HELD THAT THERE IS NO CONTRACTUAL RELATIONSHIP BINDING UPON THE BIDDER NOTWITHSTANDING THE DISCLAIMER OF WARRANTIES PROVISION. CF. AMERICAN ELASTICS V. UNITED STATES, 84 F.SUPP. 194, AFFIRMED 187 F.2D 109.
ACCORDINGLY, THE CONTRACT SHOULD BE CANCELED AND THE BID DEPOSIT OF $350 SHOULD BE REFUNDED.