B-149009, JUL. 20, 1962

B-149009, JUL. 20, 1962

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO A LETTER DATED MAY 24, 1962, WITH ENCLOSURES, FROM GEORGE W. SHELHORSE, ESQUIRE, ASSISTANT COUNSEL, SUBMITTING FOR OUR CONSIDERATION A REQUEST BY THE SHELLY COMPANY, 10511 WEST EIGHT MILE ROAD, DETROIT 21, MICHIGAN, FOR RESCISSION OF THE AWARD MADE TO THAT CONCERN OF ITEM 20 UNDER SALES INVITATION FOR BIDS NO. B-89-62 63069.

THE RECORD SHOWS THAT BY THE CITED INVITATION FOR BIDS THERE WERE OFFERED FOR SALE VARIOUS MISCELLANEOUS ITEMS OF GOVERNMENT-OWNED PROPERTY, THE PARTICULAR ITEM HERE INVOLVED BEING LOCATED AT THE PHILADELPHIA NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA. THE SHELLY COMPANY BID THE SUM OF $1,800 FOR ITEM 20 AND NOW REQUESTS RESCISSION OF THE AWARD MADE TO IT OF THAT ITEM UNDER DATE OF APRIL 19, 1962, ON THE GROUND OF A MISTAKE IN BID, IT BEING ALLEGED BY THE CONTRACTOR THAT IT INTENDED TO BID ON ITEM 19. SUPPORT OF ITS ALLEGATION OF ERROR, THE CONTRACTOR POINTED OUT IN ITS LETTER OF APRIL 25, 1962, THAT THE DESCRIPTION OF THE PROPERTY COVERED BY ITEM 19 WAS ON BOTH PAGES 12 AND 13 OF THE INDICATED INVITATION, AND THAT THE SECRETARY WHO PREPARED THE BID INADVERTENTLY ENTERED THE SUM OF $1,800 FOR ITEM 20 WHEREAS THE BID WAS INTENDED TO COVER ITEM 19.

ITEM 19 WAS AN AUTOMATIC SCREW MACHINE MANUFACTURED BY THE NATIONAL ACME COMPANY, MODEL RA6, YEAR 1942, THE ACQUISITION COST BEING $11,022. BIDS RECEIVED FOR THAT ITEM RANGED FROM $160 TO $3,556.50. ITEM 20 WAS ALSO AN AUTOMATIC SCREW MACHINE MANUFACTURED BY THE NATIONAL ACME COMPANY, MODEL RA4, YEAR 1935, THE ACQUISITION COST BEING $13,641.97. THE BID OF THE SHELLY COMPANY FOR THIS ITEM WAS HIGH, THE OTHER BIDS RANGING FROM $137.47 TO $801.01.

THE CONTRACTOR HAS SUBMITTED SOME EVIDENCE TO SHOW THAT HE INTENDED TO BID THE AMOUNT OF $1,800 FOR ITEM 19 RATHER THAN FOR ITEM 20, ALTHOUGH HE GAVE NO NOTICE OF THE ERROR BEFORE THE AWARD WAS MADE. THE BID AS SUBMITTED WAS CLEAR AND UNAMBIGUOUS AND THERE WAS NOTHING IN THE RANGE OF PRICES TO HAVE CAUSED THE CONTRACTING OFFICER TO SUSPECT AN ERROR BEFORE AWARD.

IT HAS OFTEN BEEN HELD BY OUR OFFICE THAT IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED FOR SALVAGE, WASTE, AND SURPLUS PROPERTY, A MERE PRICE DIFFERENCE WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR, AS WOULD SIMILAR DIFFERENCES ON NEW EQUIPMENT OR SUPPLIES TO BE FURNISHED TO THE GOVERNMENT. SUCH HOLDINGS ARE BASED UPON THE FACT THAT PRICES OFFERED TO THE GOVERNMENT FOR ITS 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 THE BIDDER MIGHT WISH TO TAKE. SEE 16 COMP. GEN. 596; 17 ID. 388; ID. 601; ID. 976; 28 ID. 261; AND ID. 550.

UPON THE BASIS OF THE RECORD BEFORE US, IT APPEARS THAT THE ACCEPTANCE OF THE BID IN THIS CASE WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. ACCORDINGLY, WE CONCLUDE THAT THE ACCEPTANCE OF THE BID 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, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT MAY PROPERLY BE ATTRIBUTED SOLEY TO THE CONTRACTOR'S NEGLIGENCE, AND SINCE THE ERROR ON WHICH THE CONTRACTOR'S REQUEST IS BASED WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT ENTITLED TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR RESCINDING THE CONTRACT IN THIS CASE BECAUSE OF THE ALLEGED MISTAKE IN BID.