B-127331, MAY 31, 1956

B-127331, MAY 31, 1956

TO DECATUR FARMS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 13, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $602.64 UNDER PURCHASE ORDER NO. 194, DATED JULY 22, 1954.

IN RESPONSE TO INVITATION NO. 55-29, ISSUED ON JULY 9, 1954, BY THE VETERANS ADMINISTRATION CENTER, BATH, NEW YORK, YOU SUBMITTED A BID DATED JULY 17, 1954, OFFERING TO FURNISH, AMONG OTHERS, ITEM NO. 136 COVERING 210 POUNDS OF SWEET CREAM BUTTER AT $0.279 PER POUND, OR FOR A TOTAL PRICE OF $58.59. SHORTLY AFTER THE BIDS WERE OPENED MRS. INEZ S. PLUMLEY, PURCHASING AGENT OF THE CENTER, CALLED YOUR MR. B. KOTTLER BY TELEPHONE AND REQUESTED A VERIFICATION OF YOUR BID ON ITEM NO. 136. UPON BEING ADVISED THAT YOUR PRICE OF $0.279 PER POUND WAS CORRECT YOUR BID WAS ACCEPTED ON JULY 22, 1954, ON THIS ITEM, IN ADDITION TO OTHERS, THEREBY CONSUMMATING PURCHASE ORDER NO. 194. IT APPEARS THAT SEVERAL DAYS LATER YOU ADVISED THE CONTRACTING OFFICE THAT AN ERROR HAD BEEN MADE IN YOUR BID ON ITEM NO. 136 IN THAT YOU INTENDED TO QUOTE A PRICE OF $2.79 PER POUND FOR THIS ITEM BUT A MISPLACED DECIMAL POINT RESULTED IN AN ERROR IN THE BID. AS A RESULT, YOU ARE NOW CLAIMING THE ADDITIONAL AMOUNT OF $602.64 REPRESENTING THE DIFFERENCE BETWEEN THE BID PRICE OF $0.279 PER POUND, AS ACCEPTED, AND THE INTENDED PRICE OF $2.79 PER POUND BASED ON 240 POUNDS, THE QUANTITY WHICH APPEARS TO HAVE BEEN DELIVERED BY YOU.

IT APPEARS FROM YOUR LETTER OF FEBRUARY 16, 1956, THAT YOU ARE BASING YOUR CLAIM ON THE PREMISE THAT THE REQUEST FOR VERIFICATION OF YOUR BID DID NOT SUFFICIENTLY APPRISE YOU OF THE PROBABILITY OF AN ERROR THEREIN. ALSO, YOU REFER TO IDENTICAL CIRCUMSTANCES IN CONNECTION WITH A BID SUBMITTED BY YOU TO A VETERANS ADMINISTRATION HOSPITAL IN DEARBORN, MICHIGAN, WHEREIN YOUR CLAIM WAS ALLOWED. YOU ASK WHAT FURTHER APPELLATE ACTION MAY BE AVAILABLE IN THE EVENT OF AN UNFAVORABLE DETERMINATION UPON REVIEW.

IN A MATTER SUCH AS THAT WITH WHICH WE ARE HERE CONCERNED THE SOLE LEGAL QUESTION IS NOT WHETHER AN ERROR WAS MADE IN YOUR BID BUT RATHER WHETHER THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH. IN THIS REGARD THE PURCHASING AGENT REPORTS THAT AT THE TIME THE TELEPHONE CALL WAS MADE TO MR. KOTTLER SHE FIRST DIRECTED HIS ATTENTION TO HIS FILE COPY OF THE BID INVITATION AND ASKED HIM TO DETERMINE IF THE PRICE OF ITEM NO. 136 WAS CORRECT. THE PURCHASING AGENT REPORTS FURTHER THAT THE BID PRICE OF $0.279 PER POUND WAS READ TO MR. KOTTLER AND THAT HE REPEATED THE IDENTICAL PRICE AND ASSURED HER THAT IT WAS CORRECT. IT IS SHOWN THAT MR. KOTTLER EVEN QUESTIONED THE NECESSITY FOR THE TELEPHONE CALL--- WHICH WAS MADE COLLECT--- AND STATED THAT THE BID SHOULD EITHER BE ACCEPTED OR REJECTED WITHOUT FURTHER QUESTION AT WHICH TIME HE WAS FURTHER ADVISED THAT THE CALL WAS MADE BECAUSE OF THE GREAT PRICE DIFFERENTIAL BETWEEN HIS BID OF $0.279 PER POUND ON ITEM NO. 136 AND THE TWO OTHER BIDS RECEIVED. THE PRICES OF $0.745 AND $0.90 PER POUND OF THE OTHER TWO BIDS ALSO WERE READ TO MR. KOTTLER UPON HIS REQUEST AT THAT TIME. FINALLY MR. KOTTLER WAS SPECIFICALLY QUESTIONED CONCERNING HIS ABILITY TO FURNISH THE SWEET CREAM BUTTER AT A COST OF $0.28 PER POUND AND HE REPLIED THAT HE WAS TAKING A CHANCE AND THAT HE MIGHT "LOSE HIS SHIRT" BUT THAT HE FELT HE COULD DO IT. IN VIEW OF THE FOREGOING, IT IS NOT PERCEIVED HOW A MORE FULL APPRAISAL OF THE PROBABILITY OF AN ERROR IN ITEM NO. 136 OF YOUR BID COULD HAVE BEEN BROUGHT TO YOUR ATTENTION AND NO MERIT MAY BE GIVEN THE CONTENTION OF MR. KOTTLER THAT HE THOUGHT HE WAS VERIFYING A PRICE OF $2.79 PER POUND. SUCH A PRICE IS, OF COURSE, OUT OF ALL PROPORTION TO ANY BID THAT REASONABLY MIGHT BE EXPECTED FOR THE ITEM AND IS ONE WHICH IS DIFFICULT TO ASSOCIATE IN ANY MANNER WITH MR. KOTTLER'S REFERENCE TO A POSSIBLE LOSS IN THE TRANSACTION. WHILE THE PRICE OF $0.279 PER POUND ADMITTEDLY IS QUITE LOW FOR SWEET CREAM BUTTER THE FACT REMAINS THAT THIS PRICE WAS UNEQUIVOCABLY AFFIRMED AS CORRECT AND SINCE GOVERNMENT CONTRACTING OFFICERS ARE CONSTANTLY CONFRONTED WITH AUTHENTIC BID PRICES WHICH, PERHAPS DUE TO SOME UNIQUE CIRCUMSTANCES SUCH AS SURPLUS QUANTITIES, UNFAVORABLE STORAGE OR MARKETING CONDITIONS, APPEAR TO REPRESENT UNUSUALLY LOW QUOTATIONS SUCH FACT, WITHOUT MORE, FORMS NO BASIS FOR CHARGING CONTRACTING OFFICERS WITH BAD FAITH IN THE ACCEPTANCE OF BIDS WHICH PREVIOUSLY HAVE BEEN CONFIRMED AS CORRECT.

THEREFORE, SINCE THE REQUEST FOR VERIFICATION AFFORDED YOU EVERY OPPORTUNITY TO RECHECK YOUR BID IT MUST BE CONCLUDED THAT THE SUBSEQUENT ACCEPTANCE OF THE CONFIRMED BID PRICE OF $0.279 PER POUND CONSUMMATED A VALID AND BINDING OBLIGATION WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT CAN GIVE AWAY THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH A CONTRACT. THE FACT THAT YOU MAY HAVE BEEN GRANTED RELIEF IN A SIMILAR MATTER WITH THE VETERANS ADMINISTRATION HOSPITAL, DEARBORN, MICHIGAN, IS OF LITTLE, IF ANY, SIGNIFICANCE HERE SINCE THE CONCLUSIONS TO BE REACHED IN ENTIRELY SEPARATE AND UNRELATED TRANSACTIONS MUST OF NECESSITY BE PREDICATED UPON THE FACTS AND CIRCUMSTANCES ATTENDING EACH INDIVIDUAL CASE AND THE DETERMINATION REACHED IN ONE MAY NOT BE ACCEPTED AS CONTROLLING IN THE OTHER.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 13, 1956, IS SUSTAINED.

WITH RESPECT TO ANY FURTHER APPELLATE REMEDIES AVAILABLE TO YOUTH IS IS TO ADVISE THAT FINAL ACTION OF THE GENERAL ACCOUNTING OFFICE IS CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THE LAW MAKES NO PROVISION FOR AN APPEAL THEREFROM. SEE SECTION 304, ACT OF JUNE 10, 1921, 42 STAT. 24. YOUR ATTENTION IS INVITED, HOWEVER, TO SECTION 24, AS AMENDED, AND SECTION 145 OF THE JUDICIAL CODE, TITLE 28, U.S CODE, SECTIONS 1491 AND 1346, PERTAINING TO SUITS AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE COURT OF CLAIMS OF THE UNITED STATES.