Gellner v. Department of Army

595 F.2d 1125, 26 Cont. Cas. Fed. 83,184, 1979 U.S. App. LEXIS 16090

• Court: Court of Appeals for the Eighth Circuit
• Decided: March 21, 1979
• Docket: 78-1743
• Status: Published

Opinion

595 F.2d 1125

26 Cont.Cas.Fed. (CCH) 83,184

Ken GELLNER, also known as Kenneth Gellner, doing business
as D & K Construction, Appellant,
v.
DEPARTMENT OF the ARMY and Clifford L. Alexander, Jr., as
Secretary of the Army, and the Corps of Engineers
of the Department of the Army and John
W. Morris as Chief Engineer, Appellees.

No. 78-1743.

United States Court of Appeals,
Eighth Circuit.

Submitted March 14, 1979.
Decided March 21, 1979.

Robert Q. Price of Price & Laqua, Langdon, N. D., on brief, for appellant.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., James R. Britton, U. S. Atty., Fargo, N. D., Ronald R. Glancz and Douglas N. Letter, Attys., App. Staff, Civ. Div., Dept. of Justice, Washington, D. C., on brief, for appellees.

Before GIBSON, Chief Judge, and ROSS and McMILLIAN, Circuit Judges.

PER CURIAM.

Gellner appeals from the District Court's1 dismissal of his complaint seeking a declaratory judgment that the government improperly rejected his bid for government property and accepted a bid that was unresponsive to the bid invitation. We affirm on the basis of the district court's well-reasoned memorandum opinion.

The Department of the Army, Omaha District, Corps of Engineers invited bids on excess government property related to the Safeguard Missile System located in North Dakota. The property was offered for sale to the highest bidder, and the bid form was designed to enable the government to accept bids for the property from various bidders on individual items or from a single bidder on a lump sum basis, whichever amount was greater. The form listed seven items; one through six were separate items of property and item seven was "All of the above salvageable property as described in Items Nos. 1 through 6."

The successful bidder bid only on item seven. This bid was the highest bid on item seven and also exceeded the sum of the highest bids received for each individual item. This bid was responsive to the Invitation for Bids, which clearly and unambiguously contemplated a lump sum bid by designating it as a separate item, and the government acted properly in accepting it as the highest bid. Appellant's total bid was $80,400.00 lower than that of the successful bidder, and there is no merit to his contention that he should have been awarded contracts on some of the individual items of property.

Judgment affirmed.

1 The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota