B-129393, OCT. 17, 1956

B-129393, OCT. 17, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 1, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR THE AUTOMOTIVE TIRE SERVICE, INC., BOSTON, MASSACHUSETTS, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. N216S 18355 WAS AWARDED.

THE U.S. NAVAL AIR STATION, CORPUS CHRISTI (FLOUR BLUFF), TEXAS, BY INVITATION NO. B-10-57, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, 75 USED AIRCRAFT TUBES IN FAIR CONDITION, ITEM 18. IN RESPONSE THE AUTOMOTIVE TIRE SERVICE, INC., SUBMITTED A BID, SIGNED BY ITS PURCHASING AGENT, OFFERING TO PURCHASE, AMONG OTHER ITEMS, THE AIRCRAFT TUBES COVERED BY ITEM 18 AT A PRICE OF $1.63 EACH. THE BID OF THE CORPORATION, WHICH WAS ACCOMPANIED BY BID GUARANTEE IN THE AMOUNT OF $100, WAS ACCEPTED AS TO ITEM 18 ON JULY 25, 1956.

BY LETTER DATED AUGUST 20, 1956, THE AUTOMOTIVE TIRE SERVICE, INC., ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT IT WAS UNDER THE ERRONEOUS IMPRESSION THAT ITEM 18 COVERED A QUANTITY OF TIRES RATHER THAN TUBES. IN A LETTER DATED SEPTEMBER 5, 1956, THE PURCHASING AGENT OF THE CORPORATION STATED THAT AN OFFICE SECRETARY HAD INSERTED THE UNIT PRICE FOR ITEM 18 IN THE CORPORATION'S BID WITHOUT HAVING THE PROPER INFORMATION.

THE ABSTRACT OF BIDS SHOWS THAT THE FOUR OTHER BIDDERS ON ITEM 18 QUOTED PRICES RANGING FROM $1.18 TO $0.40. ALTHOUGH THE BID OF THE AUTOMOTIVE TIRE SERVICE, INC., WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 18, IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION ON THE ITEM. IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE, AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY FROM THE GOVERNMENT, AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT. SEE 16 COMP. GEN. 596; 17 ID. 388; ID. 601; ID. 976; 28 ID. 261; ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF THE AUTOMOTIVE TIRE SERVICE, INC., WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED IN ITS LETTER OF AUGUST 20, 1956, THE AUTOMOTIVE TIRE SERVICE, INC., SUBMITTED A BID ON ITEM 18 WITH THE MISTAKEN BELIEF THAT SUCH ITEM COVERED A QUANTITY OF TIRES, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID OF THE CORPORATION WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES. 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF SEPTEMBER 12, 1956, AND THE ABSTRACT OF BIDS, ARE RETURNED.