B-135055, FEB. 10, 1958

B-135055, FEB. 10, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 24, 1958, WITH ENCLOSURES, FROM CAPTAIN R. A. WILLIAMS, ASSISTANT CHIEF FOR PURCHASING, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR THE JET TRAINING MAINTENANCE ASSOCIATES, PALO ALTO, CALIFORNIA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. N228S 21525 WAS AWARDED.

THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, BY INVITATION NO. B-82-58-228 DATED OCTOBER 28, 1957, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF ITEM 20, DESCRIBED AS (1) ONE RECONDITIONED AIRCRAFT JET ENGINE, MODEL NO. J-35-A-29, ENGINE NO. A 506089. IN RESPONSE THERETO THE JET TRAINING MAINTENANCE ASSOCIATES SUBMITTED ITS BID, OFFERING TO PURCHASE ITEM 20 FOR THE PRICE OF $500. AWARD WAS MADE OCTOBER 22, 1957.

BY LETTER DATED NOVEMBER 22, 1957, THE BIDDER CLAIMED AN ERROR IN ITS BID AND STATED THAT THE SUM OF $500 WAS INTENDED FOR (2) TWO ENGINES AT $250 EACH AND THAT SOMEONE IN ITS OFFICE HAD FAILED TO FOLLOW INSTRUCTIONS IN BIDDING. IN A SUBSEQUENT LETTER THE BIDDER REQUESTED A REFUND OF $250 OR THAT IT BE SUPPLIED WITH ANOTHER ENGINE.

IN A REPLY THE CONTRACTING OFFICER REQUESTED THE BIDDER TO FURNISH SUBSTANTIATING EVIDENCE OF ITS INTENDED BID AND ADVISED IT THAT NO REFUND COULD BE MADE NOR ANOTHER ENGINE SUPPLIED FROM THAT OFFICE. UNDER DATE OF DECEMBER 4, 1957, THE BIDDER SUBMITTED AN OFFICE MATERIAL REQUISITION AS SUBSTANTIATING EVIDENCE TO INDICATE AN INTENDED BID PRICE OF $250 PER EACH FOR A QUANTITY OF (2) TWO ENGINES.

THE CONTRACTING OFFICER HAS REPORTED, AND IT SO APPEARS, THAT THERE WAS NOTHING ON THE FACE OF THE BID WHICH INDICATED THAT THERE WAS ANY MISTAKE AS ALLEGED, AND HE RECOMMENDS THAT NO RELIEF BE GRANTED. THE SALES CATALOG SHOWS THAT ONLY ONE ENGINE WAS OFFERED FOR SALE UNDER EACH OF THE 78 ITEMS LISTED ON THE INVITATION.

THE PRIMARY QUESTION HERE INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 163. IF AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS MAY HAVE BEEN MADE WAS UNILATERAL--- NOT MUTUAL --- AND THEREFORE, AFFORDS NO BASIS FOR GRANTING RELIEF TO THE BIDDER. SEE SALIGMAN, ET AL V. UNITED STATES, 56 F.SUPP. 505, AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. SEE ALSO UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR REFUNDING $250 OF THE $500 PURCHASE PRICE, OR TO SUPPLY THE BIDDER WITH ANOTHER J-35 AIRCRAFT ENGINE SIMILAR TO THE ONE SET ASIDE FOR IT. ..END :