B-150289, JAN. 11, 1963

B-150289, JAN. 11, 1963

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

IN A LETTER DATED NOVEMBER 14, 1962, REFERENCE DSAH-G, WITH ENCLOSURES, FROM YOUR ASSISTANT COUNSEL, YOU REQUEST A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH NEAL'S AUTOMOTIVE PARTS ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT DSA-27-S-431 WAS AWARDED.

THE DEFENSE SURPLUS SALES OFFICE, COLUMBUS GENERAL DEPOT, U.S. ARMY, BY INVITATION 27-S-63-11, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, VARIOUS QUANTITIES OF TRANSFER ASSEMBLIES WITH FLANGES, THE ACQUISITION COST OF WHICH WAS STATED TO BE $226 EACH. RESPONSE, NEAL'S AUTOMOTIVE PARTS SUBMITTED A BID OFFERING TO PURCHASE, AMONG OTHERS, THE ITEMS IN QUESTION AT A PRICE OF $28.77 EACH. THE BID OF THE COMPANY, WHICH WAS ACCOMPANIED BY BID GUARANTEE IN THE AMOUNT OF $2,462.35, WAS ACCEPTED AS TO THESE ITEMS.

BY LETTERS DATED SEPTEMBER 10 AND 17, 1962, NEAL'S AUTOMOTIVE PARTS ADVISED THAT IT HAD INTENDED TO BID $2.87 EACH INSTEAD OF $28.77 EACH FOR THE TRANSFER ASSEMBLIES, AND REQUESTED THAT ITS BID PRICE FOR THAT ITEM BE CORRECTED ACCORDINGLY. THE PURCHASER ALLEGED THAT, PRIOR TO THE SUBMISSION OF ITS BID, IT HAD WRITTEN ON A PIECE OF PAPER A BID PRICE OF $2.87 EACH FOR THE ITEMS, BUT THAT IN TRANSPOSING THIS FIGURE TO THE BID FORM A SECRETARY ERRONEOUSLY INSERTED A BID PRICE OF $28.77. THE COMPANY ALSO SUBMITTED A WORKSHEET IN SUPPORT OF ITS ALLEGATION OF ERROR, SHOWING THAT WHILE THE UNIT PRICES WERE $28.77, SOME OF THE EXTENDED PRICES INDICATED THAT A UNIT PRICE OF $2.87 WAS INTENDED.

HOWEVER, NOTHING ON THE FACE OF THE BID SUBMITTED BY THE COMPANY INDICATED THAT THE PRICES QUOTED THEREIN WERE NOT AS INTENDED. THE PRICE OFFERED WAS ONLY 12.8 PERCENT OF THE ACQUISITION COST, A RETURN NOT CONSIDERED OUT OF THE ORDINARY. THE ABSTRACT OF BIDS SHOWS THAT THE OTHER BIDDERS FOR THE TRANSFER ASSEMBLIES QUOTED PRICES RANGING FROM $2.75 EACH TO $11.287 EACH. ALTHOUGH THE BID OF NEAL'S AUTOMOTIVE PARTS WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON THESE ITEMS, IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY, AS BIDDERS MAY BE EXPECTED TO PLACE A WIDE RANGE OF VALUES ON SURPLUS PROPERTY BASED ON INDIVIDUAL NEEDS OR OPPORTUNITIES FOR USE OR RESALE. VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE BID PRICES WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY, AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT. SEE UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388; AND ID. 601. SEE, ALSO 28 COMP. GEN. 261; AND ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF THE SUBJECT COMPANY WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND 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 COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF NEAL'S AUTOMOTIVE PARTS MADE AN ERROR IN THE PRICE QUOTED FOR THE TRANSFER ASSEMBLIES, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE BIDDER 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. ..END :