B-132047, JUN. 13, 1957

B-132047, JUN. 13, 1957

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MAY 31, 1957, WITH ENCLOSURES, FILE R11.2 L8) L8/NY8, FROM CAPTAIN D. C. MAC KENZIE, ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING REVIEW OF HIS DETERMINATION NO. D-185, DATED APRIL 11, 1957, WHICH DENIED WITHDRAWAL OF THE BID SUBMITTED BY PACIFIC IRON AND METAL COMPANY, SEATTLE, WASHINGTON, IN RESPONSE TO SITE SALES LETTER NO. SSL 6-57.

THE INVITATION OFFERED FOR IMMEDIATE SALE, NUMEROUS ITEMS OF SURPLUS MATERIALS INCLUDING (ITEM NO. 51) "WAVE GUIDE SECTIONS AND BENDS, 180 EA.' THE RECORD INDICATES THAT THE MATERIAL COVERED BY THAT ITEM CONSISTED OF 54 WAVE GUIDE SECTIONS WEIGHING 38 POUNDS EACH AND 126 WAVE GUIDE BENDS, WHICH WEIGHED APPROXIMATELY 1/2 POUND EACH. IN RESPONSE TO THE INVITATION THE BIDDER OFFERED TO PURCHASE THE ENTIRE QUANTITY AT A UNIT PRICE OF $6.37, EQUAL TO $1,146.60 FOR THE LOT. AFTER DATE OF OPENING, BUT PRIOR TO AWARD, THE BIDDER NOTIFIED THE DISPOSAL OFFICER THAT ITS PROPOSAL WAS COMPUTED IN ERROR DUE TO THE MISTAKEN ASSUMPTION THAT ALL OF THE ARTICLES UNDER ITEM 51 CONFORMED TO THE SAMPLE DISPLAYED WITH THE LOT OF 54 SECTIONS. FOR THAT REASON THE BIDDER REQUESTED THAT THE CONTRACT BE REFORMED TO COVER ONLY THE LARGER 54 ARTICLES OR THAT IT BE PERMITTED TO WITHDRAW ITS BID AS TO THAT ITEM.

AT THE TIME BIDS WERE SOLICITED THE MATERIAL UNDER ITEM 51 WAS IDENTIFIED AS BEING STORED TOGETHER ON FOUR PALLETS. IT IS REPORTED THAT FIFTY-FOUR OF THE LARGER ARTICLES OR WAVE GUIDE SECTIONS WERE PACKED IN INDIVIDUAL WOODEN BOXES LOCATED ON THREE OF THE PALLETS, ONE BOX HAVING BEEN OPENED TO PERMIT INSPECTION. EACH BOX WAS APPROPRIATELY MARKED TO SHOW THAT IT CONTAINED ONLY ONE ARTICLE. THE 126 SMALLER ARTICLES OR WAVE GUIDE BENDS WERE DISPLAYED ON THE FOURTH PALLET. 106 OF THESE BENDS WERE LOOSE IN AN OPEN CARDBOARD BOX AND 20 BENDS, SO MARKED, WERE IN A SEALED WOODEN BOX. THE RECORD SHOWS THAT A REPRESENTATIVE OF THE COMPANY INSPECTED THE LOT OF MATERIAL PRIOR TO THE PREPARATION OF ITS BID.

ITEM 51 OF THE INVITATION DID NOT DESCRIBE THE ARTICLES AS TO SIZE OR WEIGHT, AND IT IS APPARENT THAT THE CONTRACTOR RELIED UPON THE DESCRIPTION THEREOF FURNISHED BY ONE OF ITS REPRESENTATIVES AFTER INSPECTION OF THE LOT. HENCE, THE ALLEGED ERROR IN THE BID, IF ANY, RESULTED FROM AN INCOMPLETE INSPECTION OF THE MATERIAL ON THE PART OF THE COMPANY'S AGENT OR EMPLOYEE, SINCE IT IS REPORTED, AS ABOVE INDICATED, THAT THE GOVERNMENT HAD DISPLAYED BOTH ITEMS, WITH APPROPRIATE MARKINGS.

THERE IS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE PROPOSAL WAS INCORRECT, AND THE BIDDER HAS FAILED TO FURNISH ANY EVIDENCE IN SUPPORT OF ITS CONTENTIONS. IT CONSISTENTLY HAS BEEN HELD THAT TO AUTHORIZE THE WITHDRAWAL OF A BID AFTER OPENING, THE EVIDENCE OF ERROR MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A MISTAKE HAD BEEN MADE THROUGH CONVINCING PROOF AS TO THE NATURE AND CHARACTER OF THE ERROR SUFFICIENTLY COMPELLING TO OVERCOME ANY DOUBT THAT A BONA FIDE MISTAKE HAD, IN FACT,BEEN MADE. ADDITION, TO PERMIT CORRECTION, IT MUST BE CONCLUSIVELY ESTABLISHED WHAT THE BID WOULD HAVE BEEN BUT FOR THE ERROR.

UPON THE FACTS NOW OF RECORD, AND IN THE ABSENCE OF A SHOWING THAT THE BID WAS OTHER THAN AS INTENDED, WE CONCUR WITH THE CONTRACTING OFFICER AND THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, THAT THERE IS NOT LEGAL BASIS FOR PERMITTING THE REFORMATION OR WITHDRAWAL OF THE ACCEPTED BID.

THE PAPERS WHICH ACCOMPANIED THE LETTER OF MAY 31, 1957, ARE RETURNED HEREWITH.