B-127524, APR. 17, 1956

B-127524, APR. 17, 1956

TO THE HONORABLE, SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1956, WITH ENCLOSURES, RELATIVE TO AN ALLEGED ERROR ON ITEM NO. 11 OF A BID DATED JANUARY 18, 1956, SUBMITTED BY WALTER ROSE, ON WHICH UNNUMBERED CONTRACT DATED JANUARY 18, 1956, WAS BASED.

BY INVITATION NO. DA-EUC-91-523-S-56-33 DATED DECEMBER 13, 1955, 46 ITEMS OF GOVERNMENT-OWNED SURPLUS PERSONAL PROPERTY WERE OFFERED FOR SALE BY THE BERLIN COMMAND, PROPERTY DISPOSAL BRANCH, QUARTERMASTER SECTION. ITEM NO. 2 COVERED 1,600 POUNDS OF TENTAGE (GIG TENTS), WHEREAS ITEM NO. 11 COVERED 8,660 POUNDS OF CANVAS, OTHER THAN TENTAGE. WALTER ROSE BID ON SEVERAL ITEMS, INCLUDING AN OFFER OF .41 PFENNIG PER POUND FOR ITEM NO. 2 AND A LIKE OFFER OF .41 PFENNIG PER POUND FOR ITEM NO. 11. HIS BID WAS ACCEPTED AS TO ITEMS NOS. 4, 9 AND 11. WRITTEN NOTICE OF ACCEPTANCE, CONFIRMING PRIOR TELEPHONED ADVICE, WAS MAILED TO THE CONTRACTOR ON JANUARY 20, 1956, FROM THE CONTRACTOR, IN WHICH HE ADVISED THAT HE HAD MADE AN ERROR IN HIS BID ON ITEM NO. 11 AND REQUESTED THAT THE AWARD AS TO THAT ITEM BE CANCELLED BY REASON OF THE ERROR.

IN SUPPORT OF HIS REQUEST FOR RELIEF, THE CONTRACTOR STATED THAT AT THE TIME THE MATERIALS FOR SALE WERE INSPECTED BY HIM ALL ITEMS HE BID UPON, EXCEPT ITEM NO. 11, WERE SHOWN. HE STATED FURTHER, IN SUBSTANCE, THAT HIS BID ON ITEM NO. 11 WAS BASED ON ERRONEOUS STATEMENT TO HIM BY AN UNIDENTIFIED GOVERNMENT ATTENDANT THAT THE MATERIAL FOR SALE THEREUNDER WAS THE SAME AS THE MATERIAL OFFERED UNDER ITEM NO. 2; THAT, AFTER AWARD, IT WAS DISCOVERED THAT, DUE TO BEING STORED OUTSIDE, THE CANVAS UNDER ITEM NO. 11 HAD DETERIORATED FROM EXPOSURE TO THE WEATHER AND WAS THEREFORE GREATLY INFERIOR IN QUALITY TO ITEM NO. 2; THAT, UNDER THE CIRCUMSTANCES, HIS REQUEST FOR RELIEF SHOULD BE GRANTED, SINCE IT SHOULD HAVE BEEN KNOWN THAT HIS BID OF .41 PFENNIG PER POUND ON ITEM NO. 11 WAS GREATLY IN EXCESS OF THE MARKET VALUE OF THE MATERIAL IN QUESTION; AND THAT, CONSEQUENTLY, THE AWARD COULD NOT BE JUSTIFIED.

THE SUCCESSOR CONTRACTING OFFICER, IN HIS REPORT DATED FEBRUARY 16, 1956, STATES THAT THE CONDITION OF THE CANVAS UNDER ITEM NO. 11 IS POOR; THAT ITS VALUE IS CONSIDERABLY LESS THAN .41 PFENNIG PER POUND, WHICH THE CONTRACTOR BID FOR THE ITEM, AND THAT IT IS DOUBTFUL WHETHER ANYONE, KNOWING OF ITS CONDITION, INTENTIONALLY WOULD OFFER MORE THAN .15 PFENNIG PER POUND THEREFOR.

ORDINARILY THE FAILURE TO INSPECT IN AN "AS IS" SALE AND THE DISCOVERY AFTER SALE THAT PROPERTY PURCHASED IS NOT WHAT WAS EXPECTED AFFORDS NO BASIS FOR THE PURCHASER'S RELIEF. HOWEVER, IN VIEW OF THE FACTUAL REPORT OF THE SUCCESSOR CONTRACTING OFFICER, AND SINCE THE ONE OTHER BID RECEIVED ON EACH OF THE TWO ITEMS WAS TWICE AS HIGH FOR ITEMS NO. 2 AS FOR ITEM NO. 11, THE FACT THAT THE CONTRACTOR BID THE SAME PRICE ON THE TWO ITEMS, SO GREATLY DIFFERENT IN QUALITY, SHOULD HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY THAT THE CONTRACTOR HAD MADE AN ERROR AND, THEREFORE, THE CONTRACTOR SHOULD HAVE BEEN AFFORDED AN OPPORTUNITY TO VERIFY HIS BID ON ITEM NO. 11 BEFORE IT WAS ACCEPTED.

ACCORDINGLY, IT APPEARING THAT ITEM NO. 11 IS STILL IN THE GOVERNMENT'S POSSESSION, THE AWARD AS TO THAT ITEM SHOULD BE CANCELLED.