B-131853, MAY 31, 1957

B-131853, MAY 31, 1957

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED MAY 15, 1957, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, RELATIVE TO THE PROTEST OF MR. JACK P. MERRIMAN, TUCSON, ARIZONA, AGAINST THE CANCELLATION OF AN AWARD MADE TO HIM BY THE GEOLOGICAL SURVEY UNDER SALES INVITATION NO. 57-15S. DECISION IS REQUESTED AS TO THE PROPRIETY OF THE ACTION OF THE GEOLOGICAL SURVEY IN CANCELING THE AWARDS MADE TO MR. MERRIMAN AND JOE CASTELAN MOTORS OF TUCSON, ARIZONA, UNDER THE CIRCUMSTANCES SET FORTH IN THE LETTER.

BY THE REFERRED-TO SALES INVITATION, THE GEOLOGICAL SURVEY, DENVER, COLORADO, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF SIX USED MOTOR VEHICLES, ITEMS 1 TO 6, INCLUSIVE. IN RESPONSE, MR. JACK MERRIMAN SUBMITTED A BID OFFERING TO PURCHASE THE 1950 WILLYS STATION WAGON COVERED BY ITEM 1 FOR THE SUM OF $314.50, AND JOE CASTELAN MOTORS SUBMITTED A BID OFFERING TO PURCHASE THE STATION WAGON COVERED BY ITEM 1 FOR THE SUM OF $200 AND THE 1952 FORD BUSINESS COUPE COVERED BY ITEM 2 FOR THE SUM OF $120. THE BIDS OF MR. MERRIMAN AND JOE CASTELAN MOTORS WERE ACCOMPANIED BY THE REQUIRED BID GUARANTEES.

THE RECORD INDICATES THAT BIDS UNDER THE SUBJECT INVITATION WERE OPENED ON APRIL 2, 1957; THAT BY LETTERS DATED APRIL 4, 1957, MR. JACK MERRIMAN AND JOE CASTELAN MOTORS WERE NOTIFIED THAT THEY WERE THE SUCCESSFUL BIDDERS ON ITEMS 1 AND 2, RESPECTIVELY, AND WERE REQUESTED TO REMIT THE BALANCE DUE ON THE ITEMS PURCHASED, WHICH THEY DID SHORTLY THEREAFTER; AND THAT BY LETTER DATED APRIL 10, 1957, MR. JACK MERRIMAN WAS FURNISHED WITH A CERTIFICATE OF RELEASE FOR THE VEHICLE COVERED BY ITEM 1 OF THE INVITATION. IT APPEARS THAT ON APRIL 11, 1957, AN ENVELOPE CONTAINING THE BID OF MR. WILLIAM EISELE WAS DISCOVERED IN THE BID DRAWER WHERE IT HAD BECOME ATTACHED TO OTHER PAPERS AND INADVERTENTLY OVERLOOKED AT THE TIME THE BIDS WERE OPENED; THAT AS THE POSTMARK ON THE ENVELOPE CONTAINING MR. EISELE'S BID INDICATED THAT IT HAD BEEN MAILED IN SUFFICIENT TIME TO ARRIVE FOR THE OPENING OF THE BIDS, IT WAS OPENED AND FOUND TO BE THE HIGH BID ON ITEM 1 IN THE AMOUNT OF $453.67 AND ON ITEM 2 IN THE AMOUNT OF $253.33; AND THAT ON APRIL 11, 1957, THE CONTRACTING OFFICER SIGNED A CONTRACT IN FAVOR OF MR. EISELE, THE HIGH BIDDER ON ITEMS 1 AND 2, BUT DID NOT NOTIFY HIM OF SUCH AWARD. AFTER DISCOVERY OF THE BID OF MR. EISELE, THE CONTRACTING OFFICER, BY LETTERS DATED APRIL 15, 1957, RETURNED THE CHECKS SUBMITTED BY MR. JACK MERRIMAN AND JOE CASTELAN MOTORS AND ADVISED THEM THAT THEY HAD BEEN ERRONEOUSLY AWARDED ITEMS 1 AND 2, RESPECTIVELY, AND THAT THE AWARDS WERE CANCELLED. IN HIS LETTERS TO MR. MERRIMAN AND JOE CASTELAN MOTORS THE CONTRACTING OFFICER STATED THAT THE HIGH BID ON ITEMS 1 AND 2 WAS SUBMITTED BY MR. WILLIAM EISELE, AND THAT ITEMS 1 AND 2 WOULD BE REAWARDED TO HIM, SINCE THE LAW REQUIRES THAT AWARD BE MADE TO THE HIGHEST BIDDER.

IN A LETTER DATED APRIL 13, 1957, MR. MERRIMAN'S ATTORNEY PROTESTED CANCELLATION OF THE AWARD AND STATED THAT SINCE MR. MERRIMAN'S TITLE TO THE VEHICLE COVERED BY ITEM 1 IS IN ORDER, HE IS ENTITLED TO POSSESSION OF THE VEHICLE.

THE SITUATION HERE DOES NOT DIFFER IN ANY MATERIAL RESPECT FROM THAT CONSIDERED IN OUR DECISION OF AUGUST 8, 1956, 36 COMP. GEN. 94, TO YOU, IN WHICH IT WAS HELD THAT WHERE THE HIGHEST BID FOR THE PURCHASE OF GOVERNMENT SURPLUS PROPERTY SOLD UNDER COMPETITIVE BIDDING PROCEDURES WAS PROPER AND TIMELY RECEIVED, BUT THROUGH ADMINISTRATIVE ERROR THE AWARD WAS MADE TO THE SECOND HIGHEST BIDDER, THE INTERESTS OF THE UNITED STATES, AS WELL AS THE DUTY OF THE CONTRACTING OFFICER TO AWARD SUCH CONTRACTS TO THE HIGHEST BIDDER, REQUIRE CANCELLATION OF THE ERRONEOUS ACTION AND AWARD TO THE HIGHEST BIDDER.

ACCORDINGLY, THE ACTION TAKEN BY THE GEOLOGICAL SURVEY CONTRACTING OFFICER IN THE INSTANT MATTER APPEARS TO HAVE BEEN PROPER AND IN ACCORD WITH THE DECISION REFERRED TO ABOVE.