B-129817, JAN. 7, 1957

B-129817, JAN. 7, 1957

TO THE SECRETARY OF THE ARMY:

FURTHER REFERENCE IS MADE TO A LETTER DATED NOVEMBER 15, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), SUBMITTING FOR CONSIDERATION AND DECISION A REQUEST OF THE FIRM OF CAMPBELL AND COOPER FOR PERMISSION TO WITHDRAW THEIR BIDS IN CONNECTION WITH A SALE OF SURPLUS PROPERTY AT THE ATLANTA GENERAL DEPOT, U.S. ARMY, ATLANTA, GEORGIA, ON JULY 18, 1956, AND FOR RETURN OF THEIR DEPOSIT OF $70, ON THE GROUNDS OF MISDESCRIPTION OF THE PROPERTY LISTED AS ITEMS NO. 149 AND NO. 150 IN AUCTION SALE INVITATION TO BID NO. 09-030-S-56-18, DATED JUNE 26, 1956.

BY LETTER OF JULY 23, 1956, ADDRESSED TO THE PROPERTY DISPOSAL OFFICER, SALVAGE BRANCH, ATLANTA GENERAL DEPOT, CAMPBELL AND COOPER CALLED ATTENTION TO THE INCORRECTNESS OF THE DESCRIPTION OF ITEMS NO. 149 AND NO. 150 LISTED ON PAGE 47 OF THE INVITATION, ALLEGING THAT THESE ITEMS PROPERLY SHOULD HAVE BEEN DESCRIBED AS:

"NO. 149 GEN PT 2.5KW 21.5AMP ETC. ETC.

"NO. 150 GEN PT 2.5KW ETC. ETC.'

AND REQUESTING THAT, AS THESE UNITS WERE NOT AS CATALOGUED AND DESCRIBED AND AS THEIR BIDDING WAS PREMISED ON THE CORRECTNESS OF DESCRIPTION, THEIR BIDS BE WITHDRAWN AND THEIR DEPOSIT RETURNED.

THE PROPERTY IN QUESTION WAS LISTED AND DESCRIBED IN THE INVITATION AS FOLLOWS:

TABLE "ITEM NO. DESCRIPTION AND LOCATION OF PROPERTY QUANTITY UNIT OF

(NUMBER OF MEASURE

UNITS)

149 GENERATOR PORTABLE, SKID MTD, 25 KVA,

115 ACV, 1800 RPM, 60 CYCLE, 215 AMP

1800 RPM, SER NO. 75-2474-75 MOD.1 EACH

OTC 44 DN MFG, ONAN COND - USED ETAC - $175.00 ETW - 125

LBS SCL-17-G-NS

150 GENERATOR SET PORTABLE, SKID MTD,

GED, 25 KVA, 115 AC V 2000 W 60 CYCLE

22.7 AMP, RPM 3500, MFG ONAN

GEN. NO. 431876, MODEL 2 ACK-IM/554C 1 EACH

COND - USED ETAC - $175.00 ETW - 125 LBS SCL-17-G-NS"

CAMPBELL AND COOPER, ON JULY 18, 1956, SUBMITTED ORAL BIDS OF $150 ON ITEM NO. 149 AND $200 ON ITEM NO. 150. THREE OTHER BIDS WERE SUBMITTED BY MAIL ON ITEM NO. 149 IN THE AMOUNTS OF $65.99, $51 AND $22.66, AND ONE OTHER BID OF $51 WAS SUBMITTED BY MAIL ON ITEM NO. 150. AWARDS WERE MADE ON THESE ITEMS TO CAMPBELL AND COOPER, THE HIGHEST BIDDER, IN THE RESPECTIVE AMOUNTS OF $150 AND $200, AND A BID DEPOSIT OF $70 WAS RECEIVED FOR THE TWO ITEMS. IT IS NOTED THAT THE ESTIMATED ACQUISITION COST OF BOTH ITEMS NO. 149 AND NO. 150, WHICH ARE DESCRIBED AS "USED," IS $175.

PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS, INCORPORATED INTO THE INVITATION, PROVIDED:

"1. INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS" AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

IN PROPOSED DETERMINATION AND FINDINGS, DATED SEPTEMBER 10, 1956, SUPPORTED BY STATEMENTS OF THE CONTRACTING OFFICER AND THE COMMANDER, ATLANTA GENERAL DEPOT, U.S. ARMY, ATLANTA, GEORGIA, IT IS REPORTED THAT THE INVITATION TO BID INCLUDED TWO PORTABLE GENERATORS LISTED FOR SALE AS ITEMS NO. 149 AND NO. 150; THAT THE EVIDENCE IS CLEAR AND CONVINCING THAT AN ERROR IN THE SALE DESCRIPTION OF THE PROPERTY WAS MADE IN THE INVITATION AND THAT THE GENERATORS WERE ERRONEOUSLY DESCRIBED AS "25 KVA" INSTEAD OF "2.5 KVA; " AND THAT THE ERROR WAS OVERLOOKED BY BOTH THE CONTRACTING OFFICER AND BIDDERS DURING THE BIDDING AND WAS NOT DISCOVERED UNTIL AFTER AWARD TO THE HIGHEST BIDDER, CAMPBELL AND COOPER. THE CONTRACTING OFFICER AND THE COMMANDER, ATLANTA GENERAL DEPOT, CONCUR AND RECOMMEND THAT THE AWARD TO CAMPBELL AND COOPER OF ITEMS 149 AND 150 IN AMOUNTS OF $150 AND $200, RESPECTIVELY, BE CANCELLED AND THAT THE BID DEPOSIT OF $70 BE REFUNDED.

IT HAS BEEN INFORMALLY ASCERTAINED THAT THE ERRONEOUS DESCRIPTION RESULTED FROM A TYPOGRAPHICAL ERROR IN THE PREPARATION OF THE INVITATION,AND THAT THE CORRECT INFORMATION AS TO DESCRIPTION OF THE TWO GENERATORS WAS AVAILABLE WHEN THE LIST WAS MADE UP.

IN VIEW OF THE FOREGOING, IT MAY BE HELD THAT THE ERRONEOUS DESCRIPTION OF THE PROPERTY WAS NOT "BASED ON THE BEST AVAILABLE INFORMATION" AS STATED IN THE INVITATION. SEE B-128774, AUGUST 28, 1956. CONSIDERING THIS FACT, THE ERRONEOUS DESCRIPTION OF THE PROPERTY, AND THE GROSS DISPARITY BETWEEN THE CAMPBELL AND COOPER BIDS AND THE OTHER BIDS SUBMITTED FOR THE ITEMS, IT IS CONCLUDED THAT THE AWARDS TO CAMPBELL AND COOPER PROPERLY MAY BE CANCELLED AND THE BID DEPOSIT OF $70 RETURNED TO THEM.

THE PAPERS ACCOMPANYING THE LETTER OF NOVEMBER 15, 1956, ARE RETURNED HEREWITH.