B-141604, JAN. 15, 1960

B-141604, JAN. 15, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 30, 1959, WITH ENCLOSURES, FILE R11.2 L8) L8/NT4-28, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH BAY BRIDGE SALES ALLEGES IT MADE ON ITEM 38 OF ITS BID, ON WHICH SALES CONTRACT NO. N228S-42875, DATED OCTOBER 28, 1959, IS BASED.

THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, BY INVITATION NO. B-69 60- 228, DATED OCTOBER 2, 1959, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF ELECTRICAL AND ELECTRONIC SUPPLIES AND CERTAIN MISCELLANEOUS ITEMS AS DESCRIBED THEREIN. IN RESPONSE THERETO, BAY BRIDGE SALES SUBMITTED A BID DATED OCTOBER 9, 1959, ON SEVERAL ITEMS, INCLUDING A BID OF $268.90 ON ITEM 38, CONSISTING OF A LOT OF MISCELLANEOUS ELECTRICAL MATERIAL, CONSISTING OF APPROXIMATELY 30,775 APPARENTLY UNUSED MAZDA, INCANDESCENT, AND FLUORESCENT LAMPS WITH AN ACQUISITION COST OF $10,461.33. THE COMPANY'S BID ON LOTS 19 AND 38 WAS ACCEPTED ON OCTOBER 28, 1959.

BY LETTER OF NOVEMBER 2, 1959, THE CONTRACTOR ADVISED THE NAVAL SUPPLY CENTER THAT THE BID PLACED AGAINST ITEM 38 WAS INTENDED FOR ITEM 37, ONE LOT OF MISCELLANEOUS ELECTRICAL MATERIAL, CONSISTING OF APPROXIMATELY 92,225 FEET OF CABLE AND BRAID OF VARIOUS TYPES AND LENGTHS WITH AN ACQUISITION COST OF $4,081.19, AND REQUESTED WITHDRAWAL OF AWARD OF ITEM 38.

THE CONTRACTING OFFICER BY LETTER DATED NOVEMBER 4, 1959, ADVISED THE COMPANY THAT IN ACCORDANCE WITH PARAGRAPH 18 OF THE GENERAL SALES TERMS AND CONDITIONS OF ITS BID, 20 PERCENT OF THE CONTRACT PRICE OF ITEM 38 OR $53.78, WAS BEING RETAINED FROM THE PURCHASE PRICE AS LIQUIDATED DAMAGES AND THAT THE BALANCE OF THE PURCHASE PRICE WOULD BE REFUNDED TO IT WITHIN A FEW DAYS. THE BALANCE OF THE PURCHASE PRICE, OR $215.12 WAS PAID THE CONTRACTOR ON NOVEMBER 5, 1959.

THE ABSTRACT OF BIDS SHOWS THAT THE ONLY OTHER BIDS RECEIVED ON ITEM 38 WAS $180.52. THE CONTRACTING OFFICER STATES THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID AT THE TIME OF AWARD. ERROR WAS NOT APPARENT ON THE FACE OF THE BID, AND THE DIFFERENCE BETWEEN THE BIDS RECEIVED ON ITEM 38 IS NOT SO GREAT AS TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE BID. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH--- NO ERROR HAVING PREVIOUSLY BEEN ALLEGED--- AND THIS 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 CONTRACTING OFFICER STATED THAT THE DESCRIPTIVE PAGES OF THE BID SUBMITTED WERE USED AS A WORK COPY. ITEM 37, PAGE 11, IS NOTED "248.99.' NO NOTES APPEAR FOR ITEM 38. THE CONTRACTING OFFICER STATED THAT HE DID NOT CONSIDER THIS CLEAR AND CONVINCING EVIDENCE OF THE ALLEGED ERROR. ARE OF THE SAME OPINION. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED IN ITS LETTER OF NOVEMBER 2, 1959, BAY BRIDGE SALES INADVERTENTLY BID ON ITEM 38, SUCH ERROR WAS DUE SOLELY TO ITS 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 THE BID OF THE COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 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 APPEARS TO BE NO LEGAL BASIS FOR REFUNDING TO BAY BRIDGE SALES THE AMOUNT WITHHELD FROM THE SALES PRICE OF ITEM 38 BY THE ADMINISTRATIVE OFFICE AS LIQUIDATED DAMAGES IN ACCORDANCE WITH THE TERMS OF ITS BID.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF FACT AND RECOMMENDATION, ARE RETURNED.