B-127590, APR. 30, 1956

B-127590, APR. 30, 1956

TO CAROLINA PAPER MILLS, INC.: YOUR LETTER OF MARCH 29, 1956, REQUESTS REVIEW OF OUR SETTLEMENT DATED MARCH 21, 1956, WHICH DISALLOWED YOUR CLAIM FOR $2,031.48, THE AMOUNT STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE ON ITEM 1F OF YOUR BID ON WHICH CONTRACT NO. DA-36-030- QM-4655, DATED NOVEMBER 1, 1954, IS BASED.

IN RESPONSE TO INVITATION NO. QM-36-030-55-152 CALLING FOR TOILET TISSUE, YOU SUBMITTED, AMONG OTHERS, A BID ON ITEM 1F OF $0.0706 PER ROLL FOR DELIVERY OF 1,026,000 ROLLS, F.O.B. NORFOLK, VIRGINIA. THE DAY AFTER THE BIDS WERE OPENED YOU ADVISED THE CONTRACTING OFFICER THAT YOU HAD MADE AN ERROR IN YOUR BID ON ITEM 1F AND REQUESTED PERMISSION TO REVISE YOUR BID ON THAT ITEM FROM $0.0706 TO $0.0728 DUE TO MISCALCULATION OF FREIGHT RATES. YOU WERE REQUESTED TO FURNISH WORKSHEETS AND OTHER DATA USED IN THE PREPARATION OF YOUR BID TO SUPPORT THE ALLEGED ERROR IN BID. YOU ADVISED THAT NO WORKSHEETS COULD BE FURNISHED TO SUPPORT YOUR CONTENTION OTHER THAN A NOTARIZED MEMORANDUM SHOWING THE F.O.B. ORIGIN PRICE TO WHICH HAD BEEN ADDED FREIGHT COSTS TO $0.225 INSTEAD OF $0.425 PER CASE. LATER YOU ADVISED THAT YOU WOULD ACCEPT THE AWARD AT THE BID PRICE WITH A RESERVATION OF THE RIGHT TO FILE CLAIM WITH OUR OFFICE AT A LATER DATE IF SO ELECTED. THE RECORD SHOWS THAT DELIVERIES HAVE BEEN MADE AND YOU HAVE BEEN PAID IN ACCORDANCE WITH THE CONTRACT TERMS.

WHILE IT HAS NOT BEEN CONCLUSIVELY ESTABLISHED THAT THE ERROR WAS MADE AS ALLEGED, IT APPEARS THAT THERE IS FOR APPLICATION HERE THE PRINCIPLE LAID DOWN IN THE CASE OF THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 C.CLS. 699, AND THE BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., 133 F. 2D 399. IN DENYING RELIEF IN BOTH OF THESE CASES FOR THE AMOUNTS CLAIMED BY REASON OF ERRORS IN BIDS--- LATER ACCEPTED BY SUBSEQUENTLY EXECUTED CONTRACTS--- THE COURTS STATED, IN EFFECT, THAT WHERE THE CONTRACTOR, AS WELL AS THE GOVERNMENT, IS FULLY AWARE OF THE MISTAKE IN ITS BID AT THE TIME THE CONTRACT WAS SIGNED AND THE SIGNING BY THE CONTRACTOR WAS NOT IN ANY WAY INDUCED BY UNCONSCIONABLE CONDUCT--- FRAUD, MISTAKE, DURESS, ETC.--- ON THE PART OF THE GOVERNMENT OR BY ANY PROMISES FOR SUBSEQUENT RELIEF, THE CONTRACTOR CAN RECOVER NO MORE THAN THE CONTRACT PRICE. THE COURTS POINTED OUT THAT THE CONTRACTOR COULD NOT, ON ANY THEORY, CONTRACT, PERFORM, COLLECT THE FULL CONTRACT PRICE, AND THEN REPUDIATE THE CONTRACT AND RECOVER AS IF THERE HAD BEEN NO CONTRACT. YOUR BID ON THIS ITEM WAS NOT OUT OF LINE WITH PRICES SUBMITTED BY OTHER BIDDERS AND IS IN FACT LOWER THAN THE NEXT LOW BID ONLY BY VIRTUE OF THE DISCOUNT OFFERED.

ACCORDINGLY, THE SETTLEMENT OF MARCH 21, 1956, IS SUSTAINED.

IN REPLY TO YOUR INQUIRY AS TO WHETHER YOU NOW HAVE THE PRIVILEGE OF REFERRING YOUR CLAIM TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS, YOU ARE ADVISED THAT DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES ARE BINDING UPON THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT AND NO USEFUL PURPOSE WOULD BE SERVED BY SUCH AN APPEAL. ONCE THE COMPTROLLER GENERAL HAS CERTIFIED THAT NO BALANCE IS DUE A CONTRACTOR THE ARMED SERVICES BOARD OF CONTRACT APPEALS CANNOT TAKE JURISDICTION TO HOLD OTHERWISE. 31 U.S.C. 44 AND 742 BROOKS-CALL AWAY COMPANY V. UNITED STATES, 97 C.CLS. 689; AND ARMED SERVICES BOARD OF CONTRACT APPEALS CASE NO. 2486, DECIDED MAY 4, 1955. YOUR ATTENTION IS INVITED GENERALLY TO 28 U.S.C. 1346 AND 1491, PERTAINING TO SUITS AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS AND THE COURT OF CLAIMS OF THE UNITED STATES.