B-147376, NOV. 22, 1961

B-147376, NOV. 22, 1961

TO SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 6, 1961, WITH ENCLOSURES, FROM THE ACTING ADMINISTRATOR, AGRICULTURAL RESEARCH SERVICE, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY MR. MARION W. BOWEN TO HAVE BEEN MADE IN HIS BID ON ITEM NO. 25 UNDER INVITATION NO. 159-S-ARS-61, OPENED JULY 19, 1961.

UNDER DATE OF JUNE 27, 1961, THE AGRICULTURAL RESEARCH SERVICE REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF CERTAIN VEHICLES. MR. BOWEN'S BID ON ITEM 25 WAS ACCEPTED JULY 20, 1961. BY LETTER DATED JULY 25, 1961, MR. BOWEN WAS NOTIFIED THAT HE WAS THE SUCCESSFUL BIDDER FOR ITEM 25 IN THE AMOUNT OF $569.89, AND WAS REQUESTED TO SUBMIT FULL PAYMENT TO COVER THE AMOUNT OF HIS BID.

LATER MR. BOWEN NOTIFIED THE CONTRACTING OFFICER THAT HE HAD MADE AN ERROR IN HIS BID IN THAT HE INTENDED TO BID AN AMOUNT OF $469.89 RATHER THAN $569.89 AS SHOWN ON HIS BID. MR. BOWEN ASSERTS THAT THE ERROR WAS DUE TO A COMBINATION OF RUSH AND INADVERTENCE.

A COMPARISON OF BIDS ON ITEM 25 IS INCONCLUSIVE, INASMUCH AS THE 16 BIDS RECEIVED RANGED FROM MR. BOWEN'S BID OF $569.89 TO $126.00, THE NEXT HIGHEST BID BEING $478.78.

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 NOT 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 MR. BOWEN'S BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER 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 THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 CT.CL. 120, 163. MR. BOWEN PLACED A BID ON ITEM 25 AND SUCH ERROR WAS DUE SOLELY TO HIS 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.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR RELIEVING MR. BOWEN OF HIS BID.