B-141300, JAN. 27, 1960

B-141300, JAN. 27, 1960

TO AMERICAN CANVAS CO.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED NOVEMBER 19 AND 30, 1959, WHEREIN YOU REQUEST TO BE RELIEVED OF THE AWARD TO YOU OF ITEM NO. 23 ON SPOT BID SALE CONTRACT NO. 6270-60, BECAUSE OF AN ERROR ALLEGED AFTER AWARD IN YOUR BID ON WHICH THE CONTRACT WAS BASED.

IN YOUR LETTER OF NOVEMBER 19 YOU STATE THAT YOU PLACED YOUR BID ON ITEM NO. 23 IN ERROR, AS IT WAS YOUR INTENTION TO BID ON ITEM NO. 22. IN YOUR LETTER DATED NOVEMBER 30 YOU STATE THAT YOU ARE UNABLE TO FURNISH ANY PROOF OF THE ERROR ALLEGED IN YOUR BID, EXCEPT A COPY OF YOUR ORIGINAL BID. YOU ALSO CONTEND THAT ITEMS NOS 22 AND 23 WERE VERY BADLY DESCRIBED IN THE SALE CIRCULAR, AS WHEN YOU WERE AT THE BASE YOU FOUND THAT ONE OF THESE ITEMS CONTAINED "3 TO 4,000 CARGO AND COMBAT SUSPENDERS" IN WHICH YOU WERE INTERESTED BUT WHICH WERE NOT MENTIONED IN THE DESCRIPTION OF THE MERCHANDISE. YOU STATE THAT THE MAN IN CHARGE TOLD YOU THAT THESE SUSPENDERS WERE INCLUDED IN ITEM NO. 23. YOU FURTHER STATE THAT YOU DO NOT STOCK OR MERCHANDISE ANY OF THE MERCHANDISE LISTED AS ITEM NO. 23.

BY SPOT BID SALE INVITATION NO. AVI 04-351-S-60-5, DATED AUGUST 26, 1959, THE QUARTERMASTER PROPERTY DISPOSAL DIVISION, U.S. ARMY GARRISON, FORT ORD, CALIFORNIA, SOLICITED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF 62 ITEMS OF SURPLUS MISCELLANEOUS PROPERTY LISTED AND DESCRIBED THEREIN. YOU SUBMITTED A SPOT BID SALE CARD OFFERING TO PURCHASE, SUBJECT TO ALL THE TERMS, CONDITIONS, AND PROVISIONS OF SALE SET FORTH IN THE BID INVITATION, ITEM NO. 23 AT A PRICE OF $262.21 FOR THE ENTIRE LOT OF MATERIAL IN THAT ITEM, DESCRIBED IN THE INVITATION, AS FOLLOWS:

"ONE LOT, OF MEDICAL ITEMS, CONSISTING OF SURGICAL INSTRUMENT SETS, INSTRUMENT STERILIZERS, INSTRUMENT CHESTS AND OTHER ITEMS, USED COND. A/C $1644.76.'

SIX OTHER LOT BIDS--- RANGING FROM $101 TO $7.80--- WERE RECEIVED ON ITEM NO. 23. YOUR BID, BEING THE HIGHEST, WAS ACCEPTED BY THE CONTRACTING OFFICER AND THE SALE OF ITEM NO. 23 WAS AWARDED ON SEPTEMBER 17, 1959, TO YOU ON CONTRACT NO. 6270-60.

IT IS THE ESTABLISHED RULE THAT WHEN A BIDDER HAS MADE A MISTAKE IN HIS BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE CIRCUMSTANCES WERE SUCH THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER WAS CHARGEABLE WITH NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH ERROR SO AS TO MAKE HIS ACCEPTANCE AN ACT OF BAD FAITH.

THE CONTRACTING OFFICER REPORTS THAT WHEN BIDS WERE BEING CONSIDERED ON ITEM NO. 23, YOUR SPOT BID CARD ON THAT ITEM WAS PERFECTLY LEGIBLE, PROPERLY FILLED OUT, AND CLEARLY SHOWED THE ITEM BID ON AS NUMBER "23" AND THE AMOUNT OF YOUR BID AS "$262.21.' THE BID WAS CONSIDERED BY HIM TO BE RESPONSIVE AND THERE WAS NOTHING ON THE BID CARD TO INDICATE TO HIM THAT YOUR BID MIGHT BE OTHER THAN AS INTENDED, OR OTHERWISE IN ERROR. IN VIEW OF THE FACT THAT YOUR BID PRICE OF $262.21 REPRESENTED A RATE OF RETURN TO THE GOVERNMENT OF APPROXIMATELY 15 PERCENT OF THE STATED ACQUISITION COST OF THE LOT OF MATERIAL IN ITEM NO. 23, AND SINCE THE DISPARITY BETWEEN YOUR BID AND THE NEXT HIGH BID OF $101 WAS NOT UNUSUAL FOR THE PROPERTY BEING SOLD, YOUR BID WAS CONSIDERED BY HIM TO BE REASONABLE, AND WAS ACCEPTED, RESULTING IN AWARD OF THE SALE OF ITEM NO. 23 TO YOU AS HIGHEST BIDDER.

WITH RESPECT TO THE ADVICE YOU ALLEGE WAS GIVEN TO YOU BY AN EMPLOYEE OF THE GOVERNMENT AS TO THE CONTENTS OF ITEM NO. 23, PARAGRAPH 12, VERBAL MODIFICATIONS, OF THE GENERAL SALES TERMS AND CONDITIONS PROVIDED THAT "ANY ORAL STATEMENT BY ANY REPRESENTATIVE OF THE GOVERNMENT, MODIFYING OR CHANGING ANY CONDITIONS OF THE CONTRACT, IS AN EXPRESSION OF OPINION ONLY AND CONFERS NO RIGHT UPON THE PURCHASER.'

REGARDING YOUR CONTENTION THAT THE PROPERTY UNDER ITEMS NOS. 22 AND 23 WAS "BADLY DESCRIBED" IN THE BID INVITATION, THE RECORD DOES NOT INDICATE ANY INACCURACIES IN THE DESCRIPTIONS FOR EITHER OF THOSE ITEMS. IN THIS CONNECTION, HOWEVER, THE COURTS HAVE CONSISTENTLY HELD THAT UNDER A PROVISION SUCH AS PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS (PAGE 2 OF THE BID INVITATION), WHERE GOVERNMENT SURPLUS PROPERTY IS OFFERED AND SOLD "AS IS" AND "WHERE IS" WITHOUT EXPRESS OR IMPLIED GUARANTY OR WARRANTY OF ANY KIND, INCLUDING THE DESCRIPTION OF THE PROPERTY, THE ACCEPTANCE OF A BID, IN THE ABSENCE OF BAD FAITH OR FRAUD, CONSUMMATES A VALID AND BINDING CONTRACT, AND BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER. SEE W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424, 428; AND SILBERSTEIN AND SON V. UNITED STATES, 69 C.CLS. 412.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS CLAIMED IN YOUR LETTER OF NOVEMBER 19, 1959, YOU MADE AN ERROR ON YOUR BID CARD BY ENTERING THEREON, IN THE SPACE FOR THE ITEM NUMBER,"23" INSTEAD OF "22" AS YOU STATE YOU INTENDED TO DO, IT IS APPARENT FROM THE RECORD THAT THE ERROR WAS DUE SOLELY TO YOUR NEGLIGENCE IN THE PREPARATION OF YOUR BID AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

SINCE THE PRESENT RECORD INDICATES THAT YOU DID NOT ALLEGE ERROR IN YOUR BID UNTIL AFTER ITS ACCEPTANCE AND AWARD OF THE SALE CONTRACT OR THAT THE CONTRACTING OFFICER OTHERWISE HAD ACTUAL NOTICE OF, OR ANY REASON TO SUSPECT, ANY ERROR IN YOUR BID HIS ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH. CONSEQUENTLY, THERE APPEARS TO BE NO BASIS ON WHICH IT COULD BE HELD THAT THE ACCEPTANCE OF THE BID DID NOT CONSUMMATE 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. THE CONTRACT FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO, AND VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT IS AUTHORIZED TO WAIVE OR RELEASE. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645.

ACCORDINGLY, NO LEGAL BASIS EXISTS FOR RELIEVING YOU FROM YOUR OBLIGATION TO PURCHASE ITEM NO. 23 OF SPOT BID SALE CONTRACT NO. 6270 60 (AVI 04-351- S-60-5).