B-148682, MAY 7, 1962

TO DIRECTOR DEFENSE SUPPLY AGENCY:

THIS REFERS TO A LETTER OF APRIL 16, 1962, FROM YOUR OFFICE OF COUNSEL FORWARDING FOR OUR DECISION A REQUEST FROM JULES S. MANSOUR FOR RELIEF UNDER A CONTRACT RESULTING FROM TELEPHONE AUCTION SALE NO. 09-030-S-62-1.

THE SUBJECT INVITATION WAS ISSUED ANNOUNCING THE FIRST NATIONWIDE TELEPHONE AUCTION SALE OF GOVERNMENT PROPERTY, TO BE HELD ON AUGUST 30, 1961. IT CONTAINED THE FOLLOWING PROVISIONS:

"METHOD OF SALE: THEATER STYLE CLOSED CIRCUIT TELEPHONE AUCTION, TO BE CONDUCTED AT SIX SALE SITES WHERE COLOR SLIDES OF EACH ITEM OFFERED FOR SALE WILL BE PROJECTED SIMULTANEOUSLY ON A SCREEN AT EACH OF THE SIX SALE SITES FOR VIEWING DURING THE BIDDING. BIDDERS AT EACH SALE SITE MAY BID ON ALL PROPERTY OFFERED FOR SALE, REGARDLESS OF ITS PHYSICAL LOCATION. THE AUCTION CONTROL POINT WILL BE LOCATED IN ATLANTA, WHERE THE CHIEF AUCTIONEER WILL COMMENCE THE SALE WITH THE FIRST ITEM, CALLING FOR BIDS FROM EACH SALE SITE. AUCTIONEER ASSISTANTS AT EACH OF THE SALE SITES WILL ACKNOWLEDGE AND TRANSMIT BIDS RECEIVED TO THE CHIEF AUCTIONEER AT THE ATLANTA CONTROL POINT. THE CHIEF AUCTIONEER WILL ANNOUNCE THE HIGHEST BIDS AS THEY ARE RECEIVED.

"NOTICE OF AWARDS: WRITTEN NOTICE OF AWARDS WILL BE MAILED TO EACH SUCCESSFUL BIDDER ON OR ABOUT 5 SEPTEMBER 1961.

"SPECIAL CONDITIONS

"ARTICLE A. SUBMISSION OF BIDS: THE AUCTIONEER WILL OFFER EACH NUMBERED ITEM SEPARATELY BEGINNING WITH ITEM NO. 1. BIDDERS WILL COMMUNICATE THE AMOUNT OF THEIR BIDS EITHER ORALLY OR BY SUCH MEANS AS MAY BE SPECIFIED BY THE AUCTIONEER AT THE BEGINNING OF THE SALE. BID OFFERS WILL NOT BE RECOGNIZED FROM ANY PERSON NOT PROPERLY REGISTERED AND ISSUED A NUMBERED PADDLE.

"/1) * * * THE AUCTIONEER'S ACKNOWLEDGMENT OF THE HIGHEST BIDDER WILL DETERMINE THE SUCCESSFUL PURCHASER FOR EACH ITEM, EXCEPT AS OTHERWISE HEREIN SPECIFICALLY PROVIDED.

"/2) IN THE EVENT OF A DISPUTE ON THE FLOOR AS TO THE AMOUNT BID OR QUESTION AS TO NAME AND/OR NUMBER OF THE HIGH BIDDER, THE ITEM IN QUESTION MAY BE WITHDRAWN AND IMMEDIATELY REOFFERED.

"/3) ONCE A LOT OR ITEM IS KNOCKED DOWN TO A PURCHASER, HIS BID MAY NOT BE WITHDRAWN. THE CONTRACTING OFFICER WILL FURNISH A WRITTEN NOTICE OF AWARD WHICH WILL BE THE PURCHASER'S AUTHORITY, UPON FULL PAYMENT OF THE PURCHASE PRICE AND ANY STORAGE CHARGES THAT MAY BE ASSESSED UNDER ARTICLE F, TO REMOVE THE PURCHASED MATERIAL FROM THE GOVERNMENT PREMISES.'

THE SALE WAS CONDUCTED AS SCHEDULED WITH THE AUCTIONEER ANNOUNCING EACH ITEM AS SET FORTH IN THE INVITATION AND RECEIVING BIDS ON EACH ITEM IN THE ORDER IN WHICH LISTED IN THE INVITATION. ITEM NO. 89 ON PAGE 23 OF THE INVITATION IS DESCRIBED AS "TROUSERS, HERRINGBONE TWILL, FATIGUE * * * UNIT COST: $2.15 * * * 2,000 PR," AND THE INVITATION STATES THAT THE ITEM IS LOCATED AT FORT DIX, NEW JERSEY. THE HIGH BID ON THIS ITEM AT $0.50 PER UNIT, WAS SUBMITTED BY MR. JULES S. MANSOUR, WHO WAS REGISTERED FOR THE SALE AND WAS ASSIGNED A REGISTRATION (PADDLE) NUMBER.

BY LETTER OF AUGUST 30, 1961, TO THE SALES OFFICER MR. JULES S. MANSOUR STATED THAT HE HAD INTENDED TO BID ON A LOT OF TROUSERS LOCATED AT ATLANTA AND HE WAS OF THE OPINION THAT HE HAD BID ON SUCH TROUSERS WHEN HE BID ON ITEM 89. SUBSEQUENTLY, BY LETTER OF SEPTEMBER 24, 1961, MR. MANSOUR SAID HIS INTENTION WAS TO BID ON ITEM NO. 95, WHICH IS LOCATED IN ATLANTA DEPOT AND WHICH HE HAD INSPECTED, INSTEAD OF BIDDING ON ITEM NO. 89. ITEM NO. 95 IS DESCRIBED IN THE INVITATION AS "TROUSERS, MEN-S, RAYON-MOHAIR-NYLON, KHAKI, TROPICAL * * * UNIT COST: $4.35 * * * 2,000 R.'

ON SEPTEMBER 5, 1961, NOTICE OF AWARD ON ITEM NO. 89 WAS MADE OUT TO JULES S. MANSOUR, FOR 2,800 PAIRS OF TROUSERS AT .0.50 PER UNIT. IT IS REPORTED THAT ITEM NO. 90, AN ITEM IDENTICAL TO ITEM NO. 89, WAS ALSO AWARDED AT $0.50 PER UNIT TO ANOTHER BIDDER. ITEM NO. 95 WAS AWARDED AT $1.00 PER UNIT.

IT IS THE GENERAL RULE OF LAW THAT AT AN AUCTION SALE A CONTRACT IS FORMED "WHEN THE HAMMER FALLS" 2 WILLISTON ON SALES, SECTION 296 (REV. ED.). THE INVITATION HERE STATES UNDER ARTICLE A (1) OF THE "SPECIAL CONDITIONS" THAT THE AUCTIONEER'S ACKNOWLEDGMENT OF THE HIGHEST BIDDER WILL DETERMINE THE SUCCESSFUL PURCHASER FOR EACH ITEM, EXCEPT AS OTHERWISE PROVIDED BY THE INVITATION. NONE OF THE SPECIFIED EXCEPTIONS APPEAR TO PERTAIN HERE. WE BELIEVE THAT A VALID AND BINDING CONTRACT WAS FORMED AS TO ITEM NO. 89 WHEN THE AUCTIONEER ACKNOWLEDGED THE HIGH BID. SEE 37 COMP. GEN. 75. THERE WAS NOTHING IN THE AMOUNT OF THE BID OR IN THE SURROUNDING CIRCUMSTANCES TO INDICATE THAT MR. MANSOUR MAY HAVE BID ON THE WRONG ITEM. IN THIS REGARD WE NOTE MR. MANSOUR'S STATEMENT IN HIS LETTER OF SEPTEMBER 24, 1961, THAT "THE REASON I WOULD LIKE TO SETTLE THIS CASE IS NOT BECAUSE THERE IS A LOSS IN IT, IN FACT I COULD MAKE A HANDSOME PROFIT IF I SELL IT LOCALLY, BUT SINCE MY STAY IN THIS COUNTRY IS SHORT I WOULD NOT BE ABLE TO DO ANY RETAIL BUSINESS HERE.'

UNDER THESE CIRCUMSTANCES THIS OFFICE MAY NOT PROPERLY GRANT RELIEF FROM THE TERMS AND CONDITIONS OF THE CONTRACT RESULTING FROM MR. MANSOUR'S BID UNDER THE SUBJECT INVITATION.