B-130329, JAN. 25, 1957

B-130329, JAN. 25, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF JANUARY 9, 1957, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), WITH ENCLOSURES, REQUESTING CONSIDERATION OF THE APPLICATION OF MR. GEORGE S. OBEAR III, OF AVONDALE ESTATES, GEORGIA, FOR RELIEF FROM THE TERMS OF CONTRACT O.I. NO. 2872, ON THE GROUNDS OF AN ALLEGED MISTAKE ON ITEMS NOS. 74 AND 108, RESPECTIVELY, OF SPOT-BID SALE NO. 09-303-S-57-1, IN WHICH MAILED BIDS WERE ACCEPTED.

THE INVITATION WITH RESPECT TO ITEMS NOS. 74 AND 108, STATES CLEARLY "INDICATE BID IN UNIT OF EACH" AND THAT THE UNIT OF MEASURE IS "UNIT.' EACH SPOT-BID CARD SUBMITTED BY MR. OBEAR, IT IS CLEARLY STATED THAT THE BID IS SUBJECT TO THE TERMS AND CONDITIONS OF THE INVITATION AND AT NO PLACE ON EITHER OF SAID SPOT-BID CARDS DID MR. OBEAR INDICATE HIS INTENTION TO BID ON THE "LOT" RATHER THAN ON THE "UNIT.' THE TOTAL AMOUNT BID BY MR. OBEAR FOR THIS UNUSED MATERIAL WAS $1,058.15, WHILE THE TOTAL ESTIMATED ACQUISITION COST TO THE GOVERNMENT WAS $1,578.48. THE UNIT BID ON ITEM NO. 74 WAS $9.29 AND THE UNIT BID ON ITEM NO. 108 WAS $26.39. THE SECOND HIGHEST UNIT BIDS ON ITEMS NOS. 74 AND 108 WERE $5.06 AND $17.25, RESPECTIVELY. AFTER THE AWARD, MR. OBEAR CONTENDED THAT HIS BID WAS ON THE "LOT" RATHER THAN ON THE "UNIT.'

THE BASIC QUESTION FOR DETERMINATION IS WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ACCEPTANCE OF THE BIDS. THERE WAS NOTHING ON THE FACE OF MR. OBEAR'S BIDS TO INDICATE THAT THEY WERE "LOT" BIDS. ALSO, GENERALLY A MERE DIFFERENCE IN THE PRICES BID FOR SURPLUS PROPERTY WOULD NOT PLACE A CONTRACTING OFFICER ON NOTICE OF ERROR 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; AND 28 ID. 550. THE DIFFERENCES BETWEEN THE BIDS AND THOSE RECEIVED FROM THE SECOND HIGHEST BIDDER DO NOT APPEAR TO BE SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN SAID BIDS, AND THE RECORD INDICATES THAT HIS INTERPRETATION OF THE BIDS WAS MADE UPON FULL CONSIDERATION OF THE FACTS. THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BIDS ON ITEMS NOS. 74 AND 108 WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, 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.

MOREOVER, THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT THE UNIT FOR ITEMS NOS. 74 AND 108, RESPECTIVELY, WAS EACH. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. HENCE, IF MR. OBEAR QUOTED THE SAID PRICES FOR EACH UNIT OF THE SAID ITEMS, WHEN HE INTENDED TO BID ON THE "LOT," SUCH ERROR WAS DUE SOLELY TO HIS OWN NEGLIGENCE AND WAS IN NO MANNER INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61. CONSEQUENTLY, ANY ERROR THAT WAS MADE WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE THE BIDDER TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR RELEASING THIS CONTRACTOR FROM HIS OBLIGATION TO PAY FOR THE MATERIAL.