B-144995, APR. 10, 1961
Highlights
TO WENDER PRESSES INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18. 751.51 WAS ON ITEM 33 AND NOT ITEM 34. A COMPARISON OF BIDS ON ITEM 33 IS INCONCLUSIVE. WHILE THERE IS QUITE A PRICE DIFFERENTIAL BETWEEN YOUR BID AND THE NEXT HIGHEST BID ON ITEM 34. THIS IS NOT UNUSUAL AND THEREFORE INCONCLUSIVE. PRICES OFFERED TO THE GOVERNMENT FOR ITS SURPLUS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE WHICH THE BIDDER MIGHT WISH TO TAKE. THE ALLEGED ERROR WAS NO APPARENT ON THE FACE OF THE PROPOSAL. IT FOLLOWS THAT THE ACCEPTANCE OF YOUR OFFER WAS IN GOOD FAITH. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON YOU.
B-144995, APR. 10, 1961
TO WENDER PRESSES INC.:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 18, 1961, WITH ENCLOSURES, RELATIVE TO YOUR CLAIM FOR $2,600, REPRESENTING A BID DEPOSIT MADE ON ITEM 34 OF CONTRACT NO. N-62778S-801. FURTHER YOU REQUEST CANCELLATION OF THE CONTRACT DUE TO AN ERROR IN BID. YOU ALLEGED THAT YOU INTENDED YOUR BID OF $7,751.51 WAS ON ITEM 33 AND NOT ITEM 34.
BY INVITATION NO. B-3-61-62778, DATED AUGUST 19, 1960, THE INSPECTOR OF NAVAL MATERIAL, CLEVELAND, OHIO, OFFERED FOR SALE CERTAIN MACHINE TOOLS AND ELECTRICAL EQUIPMENT. WENDER PRESSES, INCORPORATED PLACED A BID OF $7,751.51 ON ITEM 34, LATHE, CHUCKING, RIGHT ANGLE CARRIAGE, ACQUISITION COST OF $50,072. IN LETTER OF SEPTEMBER 23, 1960, YOU ALLEGED THAT YOU INTENDED TO BID ON ITEM NO. 33 BUT THROUGH A CLERICAL ERROR YOU BID ON ITEM 34.
A COMPARISON OF BIDS ON ITEM 33 IS INCONCLUSIVE, INASMUCH AS THE BIDS RANGED FROM THE HIGH BID OF $10,800 TO THE LOW BID OF $288. WHILE THERE IS QUITE A PRICE DIFFERENTIAL BETWEEN YOUR BID AND THE NEXT HIGHEST BID ON ITEM 34, THIS IS NOT UNUSUAL AND THEREFORE INCONCLUSIVE. AN INDEPENDENT APPRAISAL OF THE RESALE VALUE OF ITEM 34 ESTABLISHED A VALUE BETWEEN $5,000 AND $7,000, WITH A MUCH HIGHER RETURN POSSIBLE IN THE EVENT A USER COULD BE LOCATED.
IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICE BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR SUCH PROPERTY, AS WOULD A LIKE DIFFERENCE IN THE PRICE QUOTED ON NEW SUPPLIES OR EQUIPMENT TO BE FURNISHED TO THE GOVERNMENT. PRICES OFFERED TO THE GOVERNMENT FOR ITS SURPLUS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE WHICH THE BIDDER MIGHT WISH TO TAKE. SEE UNITED STATES V. SABIN METAL CORP., 151 F.SUPP. 683, 689, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388; AND ID. 601.
THE ALLEGED ERROR WAS NO APPARENT ON THE FACE OF THE PROPOSAL, THUS THERE APPEARS NO BASIS TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE PROPOSAL. IT FOLLOWS THAT THE ACCEPTANCE OF YOUR OFFER WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER NOTICE OF THE AWARD OF THE CONTRACT. SUCH AWARD CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.
MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 CT.CL. 120, 163. YOU PLACED A BID ON ITEM 34 NOT ITEM 33, AND SUCH ERROR WAS DUE SOLELY TO YOUR 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 YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.
ACCORDINGLY, ON THE BASIS OF THE FACTS OF RECORD AND THE LAW APPLICABLE THERETO, THERE IS NO ..END :