B-134585, DEC. 31, 1957

B-134585, DEC. 31, 1957

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 6, 1957, WITH ENCLOSURES, FILE REFERENCE R11.2 L8/L8/NT4-28, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH THE GREAT BASIN SUPPLY COMPANY, SALT LAKE CITY, UTAH, ALLEGES IT MADE IN ITS BID ON WHICH SALES CONTRACT NO. N228S-21287 WAS AWARDED.

THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, BY INVITATION NO. B-66-58-228, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS MATERIALS DESCRIBED UNDER ITEMS 1 TO 50, INCLUSIVE. PROSPECTIVE BIDDERS WERE REQUESTED TO ENTER THEIR BID PRICES ON THE SUMMARY BID SHEET INSTEAD OF OPPOSITE THE DESCRIPTION OF EACH ITEM. THE SUMMARY BID SHEET CONTAINS FOUR COLUMNS TITLED: (1) ITEM NO.; (2) DESCRIPTION; (3) PRICE BID PER UNIT; AND (4) TOTAL PRICE BID. ITEM 31 OF THE INVITATION COVERS ONE USED 1946 ELECTRIC FORKLIFT TRUCK MANUFACTURED BY THE CLARK EQUIPMENT COMPANY, THE ORIGINAL ACQUISITION COST OF WHICH WAS STATED TO BE $3,500. IN RESPONSE TO THE INVITATION, THE GREAT BASIN SUPPLY COMPANY SUBMITTED A BID IN WHICH, ON THE SUMMARY BID SHEET, IT INDICATED THAT IT WAS BIDDING ON ITEMS 29, 30 AND 31 AND THAT FOR ITEM 31 IT WAS QUOTING A UNIT PRICE OF $1,183. THE BID OF THE COMPANY WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $1,000. BY NOTICE OF AWARD DATED OCTOBER 24, 1957, THE COMPANY WAS ADVISED THAT IT HAD BEEN AWARDED ITEM 31 AND THAT THERE WAS A BALANCE OF $183 DUE ON THAT ITEM.

BY LETTER DATED OCTOBER 25, 1957, THE COMPANY ADVISED THAT AN ERROR HAD BEEN MADE ON ITS SUMMARY BID SHEET IN THAT THE PRICE INTENDED FOR ITEM 34 WAS INADVERTENTLY PLACED OPPOSITE ITEM 1; THAT AFTER INSPECTING THE THREE GASOLINE FORKTRUCKS COVERED BY ITEMS 29, 30 AND 34, AN OFFICIAL OF THE COMPANY INSERTED THE COMPANY'S BID PRICES ON A WORKSHEET; AND THAT IN TRANSFERRING ITS BID PRICE FOR ITEM 34 (ONE GASOLINE FORKTRUCK) TO THE SUMMARY BID SHEET SUBMITTED, A COMPANY OFFICIAL INADVERTENTLY PLACED SUCH PRICE ON THE LINE SET ASIDE FOR SHOWING THE BID PRICE OF ITEM 31 (ONE ELECTRIC FORKLIFT TRUCK). THE COMPANY REQUESTED THE CONTRACT BE CANCELED AND IN SUPPORT OF ITS ALLEGATION OF ERROR, IT SUBMITTED ITS WORKSHEET, WHICH APPEARS TO BE A COPY OF THE INVITATION. NO PRICE FOR ITEM 31 IS SHOWN ON THE WORKSHEET, BUT OPPOSITE THE DESCRIPTION OF ITEM 34 APPEARS A PRICE OF $1,183.

THE ABSTRACT OF BIDS SHOWS THAT THE SIX OTHER BIDDERS ON ITEM 31 QUOTED PRICES RANGING FROM $677.77 TO $48.78. ALTHOUGH THE BID OF THE GREAT BASIN SUPPLY COMPANY WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 31, 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 COMPANY 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 UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388; AND ID. 601. SEE, ALSO, 16 COMP. GEN. 976; 28 ID. 261; AND ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF THE GREAT BASIN SUPPLY COMPANY 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; AND 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 CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED IN ITS LETTER OF OCTOBER 25, 1957, THE GREAT BASIN SUPPLY COMPANY INADVERTENTLY INSERTED THE PRICE INTENDED FOR ITEM 34 OPPOSITE ITEM 31, 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 COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY 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 UNDATED STATEMENT, ARE RETURNED.