B-124346, JUL. 5, 1955

B-124346, JUL. 5, 1955

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1955, WITH ENCLOSURES, RELATIVE TO AN ERROR ALLEGED BY THE PALLEY SUPPLY COMPANY TO HAVE BEEN MADE IN ITS BID DATED MARCH 23, 1955, ON WHICH UNNUMBERED CONTRACT DATED APRIL 11, 1955, FOR THE SALE OF 55,431 FEET OF WEBBING, ITEM NO. 39 OF GOVERNMENT-OWNED SURPLUS PROPERTY LOCATED AT LEXINGTON SIGNAL DEPOT, LEXINGTON, KENTUCKY, IS BASED.

THE RECORD INDICATES THAT THE BIDS WERE OPENED ON MARCH 25, 1955, AND THAT, BY LETTER OF APRIL 2, 1955, THE COMPANY ADVISED, IN PERTINENT PART, THAT "CUSTOMARILY AND ORDINARILY, WEBBING IS SOLD ON A "YARDAGE" BASIS AND WE OVERLOOKED THE FACT THAT YOUR OFFERING WAS ON A PER FOOT BASIS.' REASON THEREOF, THE COMPANY REQUESTED THAT ITS BID ON ITEM NO. 39 BE CANCELED.

WHILE IT MAY BE THAT WEBBING IS USUALLY SOLD ON A YARDAGE BASIS, THE FACT REMAINS THAT IN THE DESCRIPTION OF ITEM NO. 39, IT WAS SPECIFICALLY AND CLEARLY STATED THAT THE WEBBING WAS IN ROLLS OF APPROXIMATELY 150 FEET EACH AND THAT BIDS WERE REQUESTED ON THE BASIS OF A UNIT PRICE BID PER FOOT FOR THE 55,431 FEET BEING SOLD. THE COMPANY'S UNIT PRICE BID WAS CORRECTLY EXTENDED TO THE TOTAL AMOUNT COLUMN. THUS, THERE WAS NOTHING ON THE FACE OF ITS BID TO INDICATE THAT AN ERROR WAS MADE AS ALLEGED. THE CONTRACTING OFFICER STATES THAT ALTHOUGH THE NEXT HIGHEST BID OF THE 25 OTHER BIDS RECEIVED ON THE ITEM WAS $0.0368 PER FOOT, SINCE THE ACQUISITION COST OF THE MATERIAL--- INDICATED AS UNUSED-- WAS $0.25 PER FOOT, THE COMPANY'S BID PRICE OF $0.062 PER FOOT WAS NOT CONSIDERED TO BE OUT OF LINE. THIS IS UNDERSTANDABLE SINCE A WIDE VARIANCE IN PRICES BID IN A SALE OF SURPLUS PROPERTY IS NOT UNUSUAL.

IT IS A WELL-ESTABLISHED RULE THAT IN ORDER TO AUTHORIZE THE DISREGARDING, WITHDRAWAL, OR CORRECTION OF A BID ON THE BASIS OF A MISTAKE ALLEGED AFTER OPENING, THE EVIDENCE MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A BONA FIDE MISTAKE WAS MADE AND MUST LEAVE NO ROOM FOR SUSPICION THAT THE CLAIM OF ERROR WAS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR AVOIDING THE CONSEQUENCES OF AN ILL-ADVISED BID. SEE 9 COMP. GEN. 339; 14 ID. 78, 80; AND 16 ID. 565, 567. THE COMPANY'S UNSUPPORTED ALLEGATION OF ERROR, MADE EIGHT DAYS AFTER THE OPENING OF BIDS, FAILS TO PROVIDE THE CONVINCING STANDARD OF PROOF REQUIRED. IT FOLLOWS AS A NECESSARY CONCLUSION THAT THE ACCEPTANCE OF THE BID AS TO ITEM NO. 39 RESULTED IN A BINDING CONTRACT AND VESTED IN THE UNITED STATES RIGHTS WHICH NO OFFICER OR AGENT OF THE GOVERNMENT MAY WAIVE OR GIVE AWAY.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR RELEASING THE PALLEY SUPPLY COMPANY FROM THE TERMS OF THE CONTRACT.

THE PAPERS, WITH THE EXCEPTION OF THE UNDATED STATEMENT OF FINDINGS AND RECOMMENDATIONS OF THE CONTRACTING OFFICER AND ONE OF THE COPIES OF THE INVITATION AND BID, ARE RETURNED.