
    420 F. 2d 709
    ANTHONY RUGGIERO, MICHAEL RUGGIERO, MARY RUGGIERO, RALPH RUGGIERO AND MARY THERESA RUGGIERO, A COPARTNERSHIP, DOING BUSINESS UNDER THE FICTITIOUS NAME OF PACIFIC DEVELOPMENT AND INVESTMENT COMPANY, DULY REGISTERED AS A FICTITIOUS NAME IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA v. THE UNITED STATES
    [No. 338-67.
    Decided January 23, 1970]
    
      
      Louis A. Audet, attorney of record for plaintiffs.
    
      Howard 0. Sigmond, with, whom was Assistant Attorney General Shiro Kashiwa, for defendant. James E. Glubb, of counsel.
    Before Cowen, Chief Judge, LahamoRe, Dureee, Davis, Collins, Skelton and Nichols, Judges.
    
   Nichols, Judge,

delivered the opinion of the court :

The plaintiffs sue to recover the sum of $11,520.20, representing part of a deposit totaling $25,260 which they made in bidding for the purchase of eight parcels of unimproved Government land situated in San Diego, California.

It is our opinion that the plaintiffs are entitled to recover.

The plaintiffs are five members of the Ruggiero family, residing in or near Los Angeles, California, and doing business as partners under the name of Pacific Development & Investment Company. Michael Ruggiero, apparently the managing partner, is a school teacher. Anthony Ruggiero is a builder. Ralph Ruggiero is an aeronautical engineer. Mary Ruggiero, Michael’s spouse, is a housewife. Mary Theresa Ruggiero is also a housewife.

Sometime in the early part of 1966, the regional headquarters of the General Services Administration in San Francisco issued an invitation for bids which announced that sealed bids for the purchase of 43 separate parcels of unimproved Government land situated in San Diego would be received until 11:00 a.m., PDT, on April 26,1966 at a specified GSA office in San Francisco, and that the bids would then be opened at the time and place mentioned. The 43 parcels of land were designated by numbers, and their respective acreages — ranging from 5 acres (plus or minus) to 59 acres (plus or minus) — were given. A map showed the location of the parcels and the topography.

The invitation included a bid form, which provided spaces for separate bids on some or all of the 43 individual parcels and also provided a different space for the submission of a bid on any group of parcels (to be designated by the bidder), or 'lie could bid for the entire area. In this connection, the invitation stated in part as follows:

* * * A bid deposit [equal to 10 percent of the 'bid Srice] must be made on each parcel on which a bidder esires consideration, unless the bid is for a group of parcels. In such case, the bidder must state only the total amount of his lump sum bid for said group and specifically identify the items included in the group. * * *

The general terms stated that in the event of revocation of a bid after opening and before acceptance, defendant might at its option forfeit the deposit or, without forfeiture, pursue other remedies.

The plaintiffs received a copy of the invitation for bids, and they decided that they would like to acquire several of the parcels of land mentioned in the invitation. With respect to three of the parcels, Nos. B-198, B-199, and B-201, which were contiguous and together contained a total of approximately 56 acres, the plaintiffs believed that these parcels could be effectively developed as a unit by establishing in the area a mobile-home park, a trailer park, and a clubhouse.

Acting under the name of Pacific Development & Investment Company, the plaintiffs on April 20,1966 submitted on the prescribed bid form separate bids for the purchase of eight of the parcels mentioned in the invitation. Cashier checks in an aggregate amount ($25,260) equal to 10 percent of the total sum bid by the plaintiffs for the eight parcels accompanied the bid form.

Only three of the parcels on which the plaintiffs submitted bids are involved in the present litigation, and they are Nos. B-198, B-199, and B-201. The plaintiffs submitted a bid of $21,001 for B-198, a bid of $65,101 for B-199, and a bid of $50,101 for B-201. Another person bid $22,181 for B-198. The nearest bids for B-199 and 201 were $25,600 and $36,008 respectively.

The plaintiffs did not, on April 20, 1966, submit a bid on any group of parcels, but the plaintiffs subsequently endeavored to establish that their separate bids on B-198, B-199, and B-201 were really intended as a bid for these three parcels as a group.

A San Francisco telephone number — 556-6875, Area code 415 — appeared on the invitation for bids. This telephone was located in an office which was shared by Thomas N. Scott and a Mr. Peters, both of whom were GSA employees assigned to the regional headquarters in San Francisco. Thomas N. Scott was a realty officer who had been designated to answer inquires concerning the sale of the lands mentioned in the invitation for bids.

On April 25, 1966, which was the day before the day on which the bids were to be opened, Michael Ruggiero made a long distance telephone call to number 556-6875 in San Francisco and talked to an unidentified person at that number. He stated to the person at the other end of the line, with reference to the prospective opening of bids, that parcels Nos. B-198, B-199, and B-201, being contiguous, were an entity to the plaintiffs, and these three parcels were to be considered as a group. The person replied that the matter would be considered after the bids were opened. He “could guarantee nothing.”

All bids were opened on April 26, 1966. On May 3, 1966, the plaintiffs were notified that their bid on parcel B-198 was rejected. The 10 percent deposit which the plaintiffs had made in connection with their bid on B-198 was refunded to the plaintiffs.

The plaintiffs on May 10,1966, protested in writing to the contracting officer against the rejection of their bid for parcel B-198. The plaintiffs stated that parcels B-198, B-199, and B-201 “were to be considered as a group * * * because they were contiguous”; and the plaintiffs requested that “our firm be sold Parcel 198 as well as Parcels 199 and 201 which are contiguous and on which we were high bidders by a very wide margin * * *.”

The contracting officer stated in reply to the plaintiffs letter of May 10,1966, that “your bid was submitted for individual parcels only and there is no way we can consider a combination bid on Parcels 198,199 and 201 * * *.”

On May 13,1966, Michael wrote a further letter to the contracting officer, stating (among other things) that “we still wish these three bids to be considered as a group bid,” and that “Unless these three parcels are considered as a group * * * bid at the total bid price of $136,203 * * * then we will retract our bid offers on parcels 199 and 201, and demand our bid deposit money be returned.” In the same letter, he said:

* * * There must have been a clerical mistake on the part of our secretary. Either the carbon copy did not transfer properly or the information from our original bid copy which is in our possession was not copied completely.
Tn any case we still wish these three bids to be considered as a group bid as we intended in our original copy of the bid form. We are enclosing this original copy for your files and for your inspection.

The enclosure was the bid form, filled in substantially as in the original submission, in red pencil, but the part of the form that was provided for group bids was now made out as follows:

GROUP (Designate Parcel)
(198, 199, 201)
$136,203

This is, of course, a part that was left blank in the original bid.

This failed to have the effect intended. The contracting officer concluded, as he testified, that there was no mistake. As Government counsel points out, Michael Ruggiero, not his secretary, admittedly prepared the original bid, in his own hand, and the duplicates forwarded to defendant on April 20, included this original. If in the retained copy, the lines for group bids were filled in, it is hard to see why Mr. Ruggiero thought it necessary to telephone the contracting officer to clarify the matter on April 25.

Subsequently, on May 18, 1966, the plaintiffs’ bids in the total amount of $115,202 on parcels B-199 and B-201 were formally accepted by the contracting officer, and an additional remittance was demanded to cover the remainder of the 20 percent down payments required under the terms of the invitation for bids.

After further correspondence between the parties, in which the plaintiffs demanded either that parcels B-198, B-199, and B-201 be sold to them as a group or that their 10 percent deposits on B-199 and B-201 be returned to them, and in which the defendant demanded the remainder of the 20 percent down payments allegedly due on B-199 and B-201, the defendant finally, on April 18-, 1967, pursuant to the article referred to above, declared that the 10 percent deposits made in connection with the plaintiffs’ bids on B-199 and B-201 were forfeited. The total forfeiture amounted to $11,520.20.

The first issue in the case is whether the plaintiffs’ telephone call of April 25,1966, or the plaintiffs’ letters of May 10 and 13, 1966, were sufficient to convert their separate bids on parcels B-198, B-199, and B-201 into a group bid for these three parcels, or, if not, whether the letter of May 13, 1966, was sufficient to withdraw the plaintiffs’ bids on parcels B-199 and B-201.

In the first place, it is clear that the plaintiffs’ telephone call of April 25,1966 — i.e., on the day before the opening of the bids — did not constitute a valid bid for parcels B-198, B-199, and B-201 as a group, or effect a modification of the plaintiffs’ pending separate bids for these three parcels into a bid for the three parcels as a group. The invitation for bids stated expressly that “Bids must be submitted hi duplicate on the Bid Form accompanying this Invitation for Bids” (emphasis supplied), and that “Bids submitted in any other manner * * * may be summarily rejected.” It further stated that telegraphic bids would not be considered, although bids might “be modified or withdrawn by telegram prior to the time fixed in this Invitation for Bids for the opening of bids.” These provisions made it clear that a valid bid could not be submitted orally, and that a valid written bid could not be modified orally.

The plaintiffs’ letters of May 10 and 13 were received after the bids were opened on April 26, 1966. In this connection, the invitation for bids provided in part that “modifications or withdrawals * * * received * * * after the exact time set for opening of bids will not be considered unless: (1) they are received before award is made; and either (2) * * * it is determined by the Government that the late receipt was due solely to delay in the mails * * * for which the bidder was not responsible; or (3) * * * it is determined by the Government that the late receipt was due solely to mishandling by tbe Government after receipt at the Government installation * *

It appears that although the plaintiffs’ letters of May 10 and 13, 1966, were received before an award was made — at least with respect to parcels B-199 and B-201 — it could not reasonably be determined that their late receipt (i.e., after the time set for the opening of the bids) was due “solely to delay in the mails” or “solely to mishandling by the Government after receipt at the Government installation.” Actually, the two letters had not even been written at the time set for the opening of the bids, i.e., 11:00 a.m., PDT, on April 26,1966. Therefore, the plaintiffs’ letters of May 10 and 13,1966, were not sufficient to effect either a modification of the plaintiffs’ separate bids previously submitted for the purchase of B-198, B-199, and B-201 as individual parcels, or a withdrawal of the bids of B-199 and B-201.

Since the plaintiffs, in submitting their bids for the purchase of parcels B-199 and B-201, expressly agreed to be bound by the provisions of the invitation for bids, including the provision pertaining to the forfeiture of a deposit if a bidder failed to consummate the transaction after the acceptance of a bid, it must be concluded that the defendant apparently was authorized to declare a forfeiture of the deposits made by the plaintiffs in connection with their bids for the purchase of parcels B-199 and B-201.

Plaintiffs next attack the GSA provision involved as ambiguous and confusing. We think, however, that the bid form provided a clear way for plaintiffs to express their intent to bid for a group of parcels and the later troubles all resulted from plaintiffs’ negligent failure to use that form to express their true intent in the way it indicated they should.

Finally, we come to the issue of mistake. It is not necessary to establish the following at any length: if a bidder discovers that he has made a mistake in his bid and so advises the contracting officer, even after bid opening, but before award, he is not bound by his bid. Rhode Island Tool Co. v. United States, 130 Ct. Cl. 698, 128 F. Supp. 417 (1955); Alta Elec. & Mech. Co. v. United States, 90 Ct. Cl. 466 (1940); Nason Coal Co. v. United States, 64 Ct. Cl. 526 (1928); Edmund J. Rappoli Co. v. United States, 98 Ct. Cl. 499 (1943). See also Wender Presses, Inc. v. United States, 170 Ct. Cl. 483, 348 F. 2d 961 (1965), where a number of other authorities are collated. This does not turn on any fault or ambiguity in the Government specifications, and on the other hand, the contractor need not be free from blame. In all of the cases cited above the bidders were, in fact, guilty of egregious blunders. As we pointed out in Chernick v. United States, 178 Ct. Cl. 498, 372 F. 2d 492 (1967), what we are really concerned with is the overreaching of a contractor by a contracting officer when the latter has the knowledge, actual or imputed as something he ought to know, that the bid is based on or embodies a disastrous mistake, and accepts the bid in face of that knowledge. The correction of the mistake, perhaps in the teeth of general conditions or specifications, by recision or reformation, represents an application of equitable principles in a legal action. The mistake, to invoke such principles, must be, as in the cases cited, a clear cut clerical or arithmetical error, or misreading of specifications, and the authorities cited do not extend to mistakes of judgment. There is no problem about this here. Defendant’s counsel conceded in oral argument that plaintiffs would be entitled to recover if their bid had been mistaken in the manner alleged. This case was referred to the General Accounting Office and their decision, over the signature of Assistant Comptroller Weitzel, and adverse to plaintiffs, is in the record and states the law in harmony with our statement herein.

The sole questions in this case thus turn out to be of fact, and are: did the plaintiffs submit the bids they did submit for parcels B-198, B-199, and B-201 in the mistaken belief that this was the way to bid for these three parcels as a group, and not individually, and did the contracting officer accept two of the bids, though he knew or should have known they were mistaken ? If the contracting officer made any fact findings, they are not of record, and assuming arguendo that such findings if made would have any validity here, we cannot attach such validity to his bald statement in testimony that there was no mistake. We must find as to that for ourselves.

Mr. Michael Ruggiero testified under oath, that there was a mistake: that he and his partners intended to bid for parcels B-198, -199, and -201, only as a group and thought the form allowed them to state that intent only in the way they did. “There is always someone who doesn’t get the word”, and it is for such persons that the law of mistaken bids was invented. But for that unhappy letter of May 13, guot. supra, this sworn testimony might end the matter. Certainly the contracting officer and the GAO were not without reason for viewing anything Mr. Ruggiero might afterwards say with skepticism. It may be doubted, however, if Mr. Rug-giero really expected to be believed in his preposterous statements about the secretary, the carbon paper, etc., knowing as he must have that the addressee of his letter would have the original bid before him. That statement could only have been meant for other eyes. Of course plaintiffs cannot mam-tain a claim, especially one in equity, by fraud, but we do not consider the statement sufficiently reprehensible of itself to cost Mr. Ruggiero and his partners their entire bid deposits, $11,520.20. Mr. Ruggiero as a witness under oath appears in the record as prudent and careful: his omission to impute any promise to the person he telephoned on April 25, is particularly noteworthy.

The surrounding circumstances corroborate Mr. Rug-giero’s testimony and establish it as truthful.

First, the gap between plaintiffs’ bid of $65,101 and the next highest bid of $25,600' for parcel B-199 might well have been enough by itself to raise a doubt in the contracting officer’s mind, even if he had not heard from the bidder. The figures of $50,101 as against $36,008 for parcel B-201, if it did not raise further doubts, at any rate would do nothing to resolve doubts already there.

A proportionately wide gap in a bid for surplus property— $7,751.51 as against $3,441 — was held of itself insufficient in Wender Presses, Inc., supra, to put the contracting officer on notice of a mistake, but in that case he had not heard of the mistake from the bidder himself before the award, as here. In Alta Elec. & Mech. Co., supra, at p. 476 we stated that a range of $25,950 in plaintiff’s bid to $31,700, $32,600, and $33,978 in the bids of others should have made defendant suspect the existence of a mistake, even without the notice of mistake prior to award, which in that case was given. The GAO viewed the margins here as without significance in light of the margins in the bids for parcels disposed of to others in the same sale. If the margins stood alone as evidence of mistake the point might have validity, but here they do not stand alone.

Second, Mr. Ruggiero testified that major parts of parcel B-199 were practically inaccessible to one who did not have the use of B-198 for the purpose. This was due, not to lack of street frontage, which all three parcels had, but to rugged terrain conditions. The best and “only feasible access” to B-199 was by way of a ravine in B-198. The Government map that was issued to bidders has contour lines on it which tend to confirm Mr. Ruggiero’s description, and anyway, there is no contradiction in the record. Defendant neither offered its own description of the terrain nor urged a view. We must assume, therefore, that persons who expected to have the use of B-198 would bid much higher for B-199 than would those who did not have that expectation. This easy and obvious explanation for the discrepancy in the bids for B-199 leaps at us from the record, and no other explanation can be found in it even by digging. The terrain being sold is one of the things the contracting officer ought to know, just as bidders are exhorted to, and it ought to have been obvious to him, at least after the matter was brought home to him, that plaintiffs were probably bidding so much above others for B-199, an inaccessible tract, because they had bid also for B-198 and expected to get both if they got either. While it is not directly in point, we deem it of some help in appreciating the importance of the access question, that in Pihes-ville Home Builders, Inc. v. United States, 160 Ct. Cl. 541 (1963), we held that a purchaser of Government surplus land could reject the title as unmarketable if the parcel was not accessible from a street the plans showed it as fronting on.

Third, the April 25 telephone call, though without significance as an attempted modification of the bid, does have its importance as corroboration of the mistake claim. Plaintiff Michael Ruggiero proved by a telephone bill that he called on that date the number that defendant advertised as the one to call in case anyone had any question about the sale. The person who received the call was not identified or produced by either side. So far as appears, plaintiff had no other business with that office. The correction of a mistaken bid would be the most apparent and legitimate subject for such a call, and even one inclined to doubt his veracity, therefore, would be hard put to doubt his testimony to the effect that he did make the call with that purpose. Our commissioner, who heard him and could judge his demeanor, found as facts that he made that call and raised that question. The significance of this is that the good faith of a mistaken bid claim obviously is strongly supported if the claim is first made before the bids are opened and the awards are known or capable of surmise. Moreover, when a contracting officer’s office is told of a mistake through the telephone channel it has itself designated, we do not think the officer can wrap himself in a cloak of ignorance thereof.

Our conclusion derives less but perhaps some support from the fact as found that plaintiffs had a plan for development of the property that required ownership of all three parcels. We do not stress it because defendant did not know it before trial, unlike the points we deem vital. It has some tendency to show that the mistake claim is made in good faith, even though the fact remains that an agreement cannot be revised to reflect a plaintiff's subjective understanding the defendant does not and should not know of. Benjamin v. United States, 172 Ct. Cl. 118, 348 F. 2d 502 (1965).

What it all amounts to is that the plaintiffs had strong motives to bid for the three parcels as a group, and only negative motives to bid for them separately. 'Separate bids were heavily against their self-interest and would have saddled them with expensive lots of land for which they had no use. This is, we think, with their testimony, sufficient to establish that their separate bids were contrary to their true intent and were therefore mistaken in the sense contemplated by the cases. They discovered their mistake promptly, five days after they 'had made it, and moved promptly to notify the contracting officer, using the channel designated by him. That their call was ineffective to revoke or modify their bids is neither here nor there on the mistaken bid issue. Therefore we conclude that the bids were mistaken in the sense the law contemplates.

We do not think plaintiffs are bound by Mr. Michael Ruggiero’s unpersuasive attempts to explain why the mistake was made. The law of mistaken bids is made for those mistakes, among others, which are perfectly inexplicable. Anyone who has ever turned into a street in face of a sign that clearly said “one way, do not enter” and tried to explain his action to a policeman, will have a fellow feeling for Mr. Ruggiero. The policeman, of course, thinks it is natural iniquity, as the contracting officer and GAO thought here, but the rest of us know better. Public policy may require that the erring driver be treated as if he were iniquitous, but its command here is to the contrary. If persons seeking to do business with the Government are decently treated by it, there will be more of them and they will offer more favorable terms, while experiences such as the Ruggiero family have undergone, will, if common, cause many to take their business elsewhere.

Plaintiffs must also show that the contracting officer overreached them by accepting their bids though he knew or should have known they were mistaken. Chernick, supra. That he actually knew can be ruled out, because his sworn testimony establishes that he did not. But we think he should have known, and did not because of a singular obstinacy in his adherence to error. Before bid opening he was so apprised or should have been by the April 25 telephone call. After bid opening and before award he had two letters to the same effect. These, and the discrepancy in the bids for the inaccessible parcel B-199, should have sufficed to put him on inquiry. He had plenty of time to inquire. It was not until almost a year later that he actually forfeited the bid deposits. The trial before our commissioner occupies only 70 pages of transcript and discloses nothing the contracting officer could not have found out for himself. According to the general conditions, the forfeiture was not automatic. It required an administrative election to forfeit. We believe it was the duty of a contracting officer, with such a choice to make, knowing what this one knew, not to take an adamant adversary position at the very outset, but to keep his mind open and conduct some kind of an inquiry, before forfeiting. Since be did not do this, we think the only proper conclusion is to impute to him, as what he should have known, all the facts as they developed in our own trial. The knowledge thus imputed to the contracting officer establishes that he did overreach the plaintiffs by accepting bids he should have known were mistaken. Chernick, supra.

We conclude that plaintiffs are entitled to recover their forfeited deposits in this action. Judgment will be entered for plaintiffs in the amount of $11,520.20.

FINDINGS OF FACT

1. (a) The plaintiffs are members of the Ruggiero family who reside in or near Los Angeles, California, and who do business as partners under the fictitious name of Pacific Development & Investment Company, which is registered in the County of Los Angeles.

(b) Anthony, Michael, and Ralph Ruggiero are brothers. Michael, a school teacher, was apparently the managing partner. Mary Ruggiero is Michael Ruggiero’s wife; and Mary Theresa Ruggiero is the wife of Ralph Ruggiero.

2. (a) Sometime in the early part of 1966, the Real Property Division, Region 9, Utilization and Disposal Service, General Services Administration, 450 Golden Gate Avenue, San Francisco, California, issued an invitation forbids which announced that sealed bids, in duplicate, for the purchase of 43 separate parcels of unimproved Government land situated in San Diego, California, would be received until 11:00 a.m., PDT, on April 26, 1966, at a specified office of the General Services Administration in San Francisco, California, and that the bids would then be opened at the time and place mentioned. The invitation indicated that the lands to be sold had previously constituted part of a naval installation in San Diego known as Camp Elliott. The Division also issued a map that showed the location of the property, and the topography.

(b) The several parcels of land were designated by numbers, and their respective acreages — ranging from 5 acres (plus or minus) to 59 acres (plus or minus) — were given. The parcels were numbered B-112, B-118, B-128, B-133, B-156, and then, consecutively, B-164 through B-201.

(c) The address of the Real Property Division in San Francisco appeared on the invitation for bids; and in connection with the address, a San Francisco telephone number— 556-6875, Area Code 415 — was given. This telephone was located in an office which was shared by Thomas N. Scott and a Mr. Peters, both of whom were GSA employees assigned to the Real Property Division. Thomas N. Scott was a realty officer in the San Francisco headquarters of the Real Property Division who had been designated to answer inquiries concerning the sale of the parcels mentioned in the invitation for bids.

(d) The invitation for bids contained a paragraph stating as follows:

This Invitation for Bids is issued subject to, and bids submitted pursuant to this Invitation for Bids must be in compliance with and subject to, the provisions of this Invitation for Bids, including the schedule portion thereof, and (1) the Instructions to Bidders, GSA Form 1741; (2) the General Terms of Sale, GSA Form 1742; (3) the Special Terms of Sale of this Invitation; and (4) the provisions of the Bid Form and Acceptance, all of which are attached to this Invitation for Bids and by this reference made a part thereof.

(e) Subparagraph “a” of paragraph 1 of the portion of the invitation for bids headed “Instructions to Bidders” provided as follows:

a. Bids must be submitted in duplicate on the Bid Form accompanying this Invitation for Bids, and all information and certifications called for thereon must be furnished. Bids submitted in any other manner or which fail to furnish all information or certifications required may be summarily rejected. While telegraphic bids will not be considered, bids may be modified or withdrawn by telegram prior to the time fixed in this Invitation for Bids for the opening of bids.

(f) Subparagraph “a” of paragraph 3 of the “Instructions to Bidders” stated in part as follows:

' a. Bids and modifications or withdrawals thereof received at the office designated in the Invitation for Bids after the exact time set for opening of bids will not be considered unless: (1) they are received before award is made; and either (2) they are sent by registered mail or by certified mail for which an official dated post office stamp (postmark) on the original Receipt for Certified Mail has been obtained, or by telegraph if authorized, and it is determined by the Government that the late receipt was due solely to delay in the mails or delay by the telegraph company, for which the bidder was not responsible; or (3) if submitted by mail (or by telegram if authorized), it is determined by the Government that the late receipt was due solely to mishandling by the Government after receipt at the Government installation. * * *

(g) The invitation for bids included a part that was headed “General Terms of Sale.” Paragraph 11 of this part of the invitation provided as follows:

11. REVOCATION OF BID AND DEFAULT. In the event of revocation of a bid after the opening of 'bids but prior to acceptance, or in the event of revocation of a bid 'after notice of acceptance, or in the event of any default by the successful bidder in the performance of the contract of sale created by such acceptance, or in the event of failure by the successful bidder to consummate the transaction, the deposit, together with any payments subsequently made on account may be forfeited at the option of the Government, in which event the bidder shall be relieved from further liability, or without forfeiting the said deposit and payments, the Government may avail itself of any legal or equitable rights which it may have under the bid or contract of sale.

(h) The invitation for bids included a part that was entitled “Special Terms of Sale.” Paragraph 2 of this part of the invitation stated (among other things) as follows:

* * * The bid deposit must be in an amount equal to ten per cent (10 %) of the bid price. A bid deposit must be made on each parcel on which a bidder desires consideration, unless the bid is for a group of parcels. In such case, the bidder must state only the total amount of his lump sum bid for said group and specifically identify the items included in the group. Bid deposits, whether for individual parcels or groups of parcels, must be specifically identified with the particular parcel or group of parcels on which a bid is made.

3.(a) The bid form which the General Services Administration distributed to prospective bidders listed, in a column that was headed “Parcel No.,” the 43 separate parcels arranged in numerical order. Parallel to the “Parcel No.” column was another column headed “Amount Bid,” which contained a dollar sign and a blank space opposite each numbered parcel in the “Parcel No.” column.

(b) Below the portion of the bid form containing the two parallel columns mentioned in paragraph (a) of this finding, the following appeared:

GROUP: (Designate Parcels)
----- $-
ENTIRE AREA OFFERED:
$-

4. Fred H. Johnston was the head of the Real Property Division, Region 9, Utilization and Disposal Service, General Services Administration, at all times material to this litigation; and he was the contracting officer with respect to the invitation for bids mentioned in finding 2.

5. The plaintiffs received a copy of the invitation for bids mentioned in finding 2 and one of the bid forms referred to in finding 3. The plaintiffs were interested in acquiring several of the parcels of land mentioned in the invitation for bids. With respect to three of the parcels, Nos. B-198, B-199, and B-201, which were contiguous and contained 10 acres (plus or minus), 32 acres (plus or minus), and 14 acres (plus or minus), respectively, the plaintiffs believed that these parcels could be effectively developed as a unit by establishing in the consolidated area a mobile-home park, a trailer park, and a clubhouse. The plaintiffs had no wish to acquire any of these three unless they acquired all three. They rightly believed parcel B-199 was virtually inaccessible except over B-198.

6. (a) The plaintiffs, acting under the name of Pacific Development & 'Investment Company, submitted a bid under the date of April 20,1966 in response to the invitation mentioned in finding 2. Michael Ruggiero prepared and signed the bid for the plaintiffs. In the “Parcel No.” column of the bid form (see finding 3), Michael Ruggiero circled the numbers B-118, B-128, B-198, B-197, B-198, B-199, B-200, and B-201 with a pen; and opposite these numbers, he inserted with a pen the following respective amounts in the “Amount Bid” column: $36,101, $12,550, $6,501, $10,101, $21,001, $65,101, $51,101, and $50,101. Immediately below the last of these amounts, Michael Ruggiero wrote with a pen, “Total 252,557.00.” At the bottom of the same page, he added the following handwritten statement: “Deposit 10% of combined bids above is $25,255.70[.] Enclosed find four cashier checks total of $25,260.00 to cover bid deposit on all individual bids.”

(b) Nothing was inserted by Michael Ruggiero in the portion of the bid form under the heading, “Group: (Designate Parcels).”

(c) The plaintiffs’ bid was supported by a deposit in the amount of $25,260.

7. On April 25, 1966, Michael Ruggiero made a long-distance telephone call to number 556-6875 in San Francisco (see finding 2(c)) and talked to an unidentified person at that number. Such person was not Fred H. Johnston or Thomas N. Scott. Michael Ruggiero stated to the person at the other end of the line, with reference to the prospective opening of bids, that parcels Nos. B-198, B-199, and B-201, being contiguous, were an entity to the plaintiffs, and these three parcels were to be considered as a group. The person to whom Michael Ruggiero spoke replied that the matter would be considered after the bids were opened.

8. The bids were opened on April 26, 1966. The plaintiffs’ bids on parcels Nos. B-199 and B-201 were the highest bids submitted on those parcels. The next highest bid below the plaintiffs’ bid of $65,101 on parcel B-199 was in the amount of $25,600; and the next highest bid below the plaintiffs’ bid of $50,101 on parcel B-201 was in the amount of $36,008. The plaintiffs’ bid on parcel No. B-198 was not the highest bid submitted on that parcel. The highest amount bid on parcel B-198 was $22,184, whereas the plaintiffs’ bid on that parcel was in the amount of $21,001.

9. On May 3, 1966, the plaintiffs were notified that their bid on parcel No. B-198 was rejected. The 10-percent deposit which the plaintiffs had made in connection with their bid on parcel B-198 was refunded to the plaintiffs.

10. (a) On May 10,1966, Michael Ruggiero wrote a letter to Fred H. Johnston, and stated in part as follows:

Your letter of May 3,1966 (Camp Elliott Sale in San Diego) rejected our bid on Parcel 198. But, this parcel was not intended to be considered as an individual bid, since it was contiguous to Parcels 199 and 201 on which we also bid. These three parcels were to be considered as a group: Parcels 198, 199 and 201 because they were contiguous.
* * *
We request that this oversight be corrected and our firm be sold Parcel 198 as well as Parcels 199 and 201 which are contiguous and on which we were high bidders by a very wide margin, even by your individual interpretation of the bids.

(b) Fred H. Johnston’s reply to the letter of May 10,1966, was dated May 11,1966, and stated in part as follows:

Upon reviewing your bid, we find that your bid was submitted for individual parcels only and there is no way we can consider a combination bid on Parcels 198, 199 and 201 as stated in your letter.

11. (a) A letter dated May 13, 1966 from Michael Rug-giero to Fred H. Johnston stated in part as follows:

We have received your letter of May 11,1966, refusing to consider Parcels 198,199 and 201 as a group bid. There must have been a clerical mistake on the part of our secretary. Either the carbon copy did not transfer properly or the information from our original bid copy which is in our possession was not copied completely.
_ In any case we still wish these three bids to be considered as a group bid as we intended in our original copy of the bid form. We are enclosing this original copy for your files and for your inspection.
Our group feels very strongly about this matter. Unless these three parcels are considered as a group (Parcels 198, 199 and 201) bid at the total bid price of $136,203 as appeared in your copy and our original enclosed; then we will retract our bid offers on parcels 199 and 201, and demand our bid deposit money be returned.

(b) Fred H. Johnston replied to the letter of May 13, 1966, on May 19, 1966, and stated in part that “we consider all of your offers submitted at this sale as individual bids.”

12. Fred H. Johnston on May 18, 1966 wrote a letter to Pacific Development & Investment Co. regarding parcels 199 and 201, and stated as follows:

Your offer in the amount of $115,202.00. for the above referenced surplus property as contained in your bid in response to Invitation No. GS-09-U (R) 66-29 is accepted on behalf of the United States of America. A signed copy of the Government’s acceptance is enclosed.
It is understood that this is to be a credit sale. We have on file your earnest money deposit in the amount of $15,000.00 which accompanied your bid. The additional sum of $8,040.40 to complete the required 20% down payment of $23,040.40 is due and payable. Interest only on the balance of the purchase price will commence on this date and is payable by quarter-annual installments. Payments on the balance of the purchase price will not begin until two years hence.
Please complete and return the attached information sheet so that we may begin preparation of the conveyance documents.

13. Michael Ruggiero wrote to Fred H. Johnston on May 20,1966 a letter which stated as follows:

We return your letter of May 18th with attached bid form for the reasons that parcel 198 has been omitted from your calculations.
The total bid for the three parcels; 198,199, and 201 amounts to $136,203.00. The 10% bid deposit would be 13,620 dollars. You.already have $15,000.00 on deposit. This $136,203.00 bid for the three parcels averages $2,432.19 per acre for the three parcels. This is higher than the highest individual bid you have received on parcel 198 alone.
Please, do not overlook the fact that our $65,101.00 bid on parcel 199 was $39,501.00. over the next highest bidder who only bid $25,600 for this parcel.
Also, we are $20,101.00 over the next highest bidder on Parcel 201.
Parcel 198 is part of this whole comer area for which we made such high bids. It is bounded by parcels 201 and 199 on which we were highest bidders, and on the other two sides by a road easement and public street. Any way you regard this, it is simple real estate logic that these three parcels must go together.
Unless you give this request serious consideration and allot or sell us all three parcels, we hereby request that our $15,000.00 deposit be returned to us as soon as possible. See enclosed bid form.

14. (a) On June 21,1966, Michael Euggiero wrote to Fred H. Johnston a letter which stated in part as follows-:

This is to inform you that as of the aboye date we have not received 'any information of rejection or acceptance of the Parcels: 128, 199, and 201 as listed in the above sale.
Likewise, no answer has been received to our registered letter to you of May 13 regarding two of the same Parcels : 199 and 201.
We interpret this as a refusal of our bids on the three parcels 128, 199, and 201. We retract our bids on these three parcels immediately.
Therefore, we hereby request a return of our ten percent deposit money in the amount of fifteen thousand thirty ($15,030.00) dollars now held by the G.S.A. office.

(b) Fred H. Johnston responded to the letter of June 21, 1966 on June 27, 1966, and stated in part as follows:

We have no alternative but to conclude you bid on all parcels, as shown on the bid form, individually. Therefore, the remainder of the down payment as stated in our acceptance letter is due and payable. If we have not received the total down payment within a reasonable time, we will be forced to turn the entire matter over to our attorneys for appropriate action.

15. A letter dated March 23,1967 from the Acting Chief of the Eeal Property Division to the plaintiffs’ attorney stated in part as follows:

Please advise your client we expect to receive the remainder of the down payment on this transaction within 10 days from the date of this correspondence.

16. A letter dated April 18,1967 from the Acting Chief of the Eeal Property Division to Pacific Development & Investment Co. stated as follows:

In our letter of March 23, 1967 to your attorney, Louis A. Audet, you were advised that the remainder of the down payment in regard to theabove referenced transaction was to be submitted within ten (10) days of the date of that correspondence.
Inasmuch as we have not heard from you or your attorney, we have no alternative but to declare forfeiture of your bid deposit in the amount of $11,520.20 in accordance with condition 11 of the General Terms of Sale (GSA Form 1742) which was made a part of the Invitation for Bids, Bid, and Acceptance GS-09-U(r) 66-29.

17. The present action was instituted by the plaintiffs on September 26,1967 to recover the sum of $11,520.20 forfeited by the defendant.

ULTIMATE PENDING OP FACT

18. We find as facts:

(a) That the bid or bids submitted as determined in finding 6 were mistaken in that plaintiffs actually submitted separate bids for parcels B-198, B-199, and B-201, whereas they intended to bid for the said three parcels only as a group.
(b) That the contracting officer accepted the bids for parcels B-199 and B-201 although he knew or should have known that they were mistaken.

CONCLUSION OP LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are entitled to recover, and judgment is entered for the plaintiffs in the sum of $11,520.20. 
      
      Trial Commissioner Mastín G. White heard the evidence and submitted recommended findings and an opinion. Although we disagree with Commissioner White’s opinion, we acknowledge the assistance we have received from it and from his findings of fact.
     