B-124156, JUN. 24, 1955

B-124156, JUN. 24, 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 THE ACTION TO BE TAKEN RELATIVE TO AN ERROR WHICH ISLER CARTAGE, INC., ALLEGES IT MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. 12-036-S-55-45 DATED DECEMBER 31, 1954.

BY THE INVITATION, JEFFERSONVILLE QUARTERMASTER DEPOT REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF THE SURPLUS MATERIALS DESCRIBED UNDER ITEMS 1 TO 67, INCLUSIVE. ITEM 65 COVERED A USED ELECTRICALLY POWERED FORK LIFT TRUCK. IN RESPONSE TO THE INVITATION, ISLER CARTAGE, INC., OFFERED $610 FOR ITEM 65. THE ABSTRACT OF BIDS SHOWS THAT THE FOUR OTHER BIDS ON THE SAID ITEM WERE IN THE AMOUNTS OF $36, $76, $118.88 AND $127.96, RESPECTIVELY. AWARD WAS MADE ON THE BID OF ISLER CARTAGE, INC., AND NOTICE THEREOF GIVEN BY LETTER OF JANUARY 25, 1955.

BY LETTER OF FEBRUARY 21, 1955, THE CONTRACTING OFFICER ADVISED ISLER CARTAGE, INC., THAT STORAGE CHARGES WERE THEN ACCRUING PURSUANT TO THE PROVISIONS OF THE INVITATION, SINCE PAYMENT OF THE BALANCE OF THE PURCHASE PRICE HAD NOT BEEN MADE AND THE TRUCK REMOVED. IN AN UNDATED ENDORSEMENT TO SAID LETTER, ISLER CARTAGE, INC., STATED THAT IT HAD INADVERTENTLY PLACED ITS BID OPPOSITE ITEM 65 INSTEAD OF ITEM 67, WHICH COVERED A GASOLINE DRIVEN TRUCK. ASSERTING THAT IT COULD NOT USE THE ELECTRICALLY POWERED TRUCK, THE CORPORATION ADVISED THAT IT HAD ELECTED TO FORFEIT ITS BID DEPOSIT. THE CORPORATION FURNISHED STATEMENTS AND AN AFFIDAVIT OF ITS PRESIDENT AS TO THE CIRCUMSTANCES INVOLVED IN THE ALLEGED ERROR AND, BY A LETTER OF MARCH 22, 1955, REQUESTED CANCELLATION OF THE AWARD AND RETURN OF THE AMOUNT OF ITS BID DEPOSIT.

IT DOES NOT APPEAR THAT THE BID SUBMITTED CONTAINED ANYTHING ON ITS FACE TO INDICATE ERROR, AND THERE IS NOTHING IN THE RECORD TO CHARGE THE CONTRACTING OFFICER WITH NOTICE OF THE POSSIBILITY OF ERROR PRIOR TO THE AWARD. ALTHOUGH THE CORPORATION'S BID WAS MUCH HIGHER THAN THE FOUR OTHER BIDS FOR ITEM 65, SUCH DIFFERENCE WOULD NOT NECESSARILY INDICATE ERROR SINCE A WIDE RANGE IN PRICES QUOTED FOR USED PROPERTY IS NOT UNUSUAL, THE PRICE QUOTED BEING DEPENDENT UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR THE BIDDER'S SPECULATION AS TO THE OPPORTUNITIES FOR RESALE. IT IS NOTED THAT THE AMOUNT BID WAS ALSO MUCH HIGHER THAN THE AMOUNT OF ANY BID RECEIVED ON ITEM 67. MOREOVER, THE DESCRIPTION OF ITEM 65 IN THE INVITATION SHOWED THAT THE ACQUISITION COST OF THE TRUCK WAS $5,500. THUS, THE RECORD SHOWS THAT THE BID SUBMITTED BY ISLER CARTAGE, INC., WAS ACCEPTED IN GOOD FAITH, NO ALLEGATION OF ERROR HAVING BEEN MADE UNTIL AFTER THE CORPORATION HAD RECEIVED NOTICE OF THE AWARD. UNDER SUCH CIRCUMSTANCES, THE ACCEPTANCE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. SUCH ACCEPTANCE VESTED IN THE GOVERNMENT THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE ACCEPTED BID AND NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN THE GOVERNMENT OR ACQUIRED BY IT UNDER A CONTRACT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED, 32 F.2D 141, AND CERTIORARI DENIED, 280 U.S. 574; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED, 292 U.S. 645; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335.

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AS TO THE PROPERTY OFFERED FOR SALE BY THE GOVERNMENT AND THE EXPLANATION FURNISHED BY ISLER CARTAGE, INC. AFFIRMATIVELY SHOWS THAT THE ALLEGED ERROR WAS DUE SOLELY TO THE NEGLIGENCE OF THE CORPORATION'S OFFICERS. THUS, SUCH ERROR AS WAS MADE WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE THE CORPORATION TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507 AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR RELEASING ISLER CARTAGE, INC., FROM THE TERMS OF ITS ACCEPTED BID.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S UNDATED REPORT AND RECOMMENDATION, ARE RETURNED HEREWITH.