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B-167829, OCT. 17, 1969

B-167829 Oct 17, 1969
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UNILATERAL WHERE PURCHASE ORDER CLEARLY INDICATED FIVE TYPES OF FILTERS WERE TO BE INCLUDED WITH CAMERA AND CONTRACTOR ACCEPTED ORDER BY WRITTEN CONFIRMATION WHICH INCLUDED REFERENCE TO ALL FIVE FILTERS. CONTRACTOR'S CLAIM OF ERROR ON GROUND THAT STANDARD PRACTICE WAS TO FURNISH ONLY THREE FILTERS. ONCE ORDER IS ACCEPTED IN WRITING OR BY PERFORMANCE. VALID CONTRACT IS CONSUMMATED. SINCE ERROR WAS NOT APPARENT ON FACE OF QUOTATION AND ABSENT EVIDENCE CONTRACTING OFFICER WAS ON NOTICE OF ERROR. IT CAN ONLY BE CONCLUDED MISTAKE WAS UNILATERAL AND WAS DUE SOLELY TO CONTRACTOR'S NEGLIGENCE. SECRETARY: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 3. THE EXACT CONTENT OF THIS CONVERSATION IS UNCLEAR.

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B-167829, OCT. 17, 1969

PURCHASES--PURCHASE ORDERS--MISTAKES--UNILATERAL WHERE PURCHASE ORDER CLEARLY INDICATED FIVE TYPES OF FILTERS WERE TO BE INCLUDED WITH CAMERA AND CONTRACTOR ACCEPTED ORDER BY WRITTEN CONFIRMATION WHICH INCLUDED REFERENCE TO ALL FIVE FILTERS, CONTRACTOR'S CLAIM OF ERROR ON GROUND THAT STANDARD PRACTICE WAS TO FURNISH ONLY THREE FILTERS, OFFERS NO BASIS FOR CONTRACTOR'S RELIEF. ALTHOUGH IT HAS BEEN HELD THAT ISSUANCE OF PURCHASE ORDER BY GOVERNMENT AMOUNTS ONLY TO OFFER, ONCE ORDER IS ACCEPTED IN WRITING OR BY PERFORMANCE, VALID CONTRACT IS CONSUMMATED. SINCE ERROR WAS NOT APPARENT ON FACE OF QUOTATION AND ABSENT EVIDENCE CONTRACTING OFFICER WAS ON NOTICE OF ERROR, IT CAN ONLY BE CONCLUDED MISTAKE WAS UNILATERAL AND WAS DUE SOLELY TO CONTRACTOR'S NEGLIGENCE.

TO MR. SECRETARY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 3, 1969, FROM YOUR DIRECTOR, OFFICE OF PLANT OPERATIONS, REQUESTING OUR DECISION CONCERNING A CLAIM OF ERROR BY TRANSMARES CORPORATION, MADE AFTER AWARD OF FOREST SERVICE ORDER NO. P.O. -988-R4-69.

BY LETTER OF OCTOBER 10, 1968, THE REGIONAL ENGINEER, U.S. FOREST SERVICE, INTERMOUNTAIN REGION, REQUESTED PRICE QUOTATIONS AND DESCRIPTIVE INFORMATION FROM TRANSMARES FOR SEVERAL ITEMS, INCLUDING ZEISS CAMERA RMK A 21/23 AND EQUIPMENT WITH EIGHT FIDUCIAL MARKERS AND FILTERS, CATALOG NO. 51-63-05. THIS REQUEST MADE NO MENTION OF THE NUMBER OF FILTERS TO BE SUPPLIED WITH THE CAMERA. TRANSMARES, IN ITS REPLY OF OCTOBER 30, WHICH FURNISHED PRICE AND DELIVERY INFORMATION, ALSO FAILED TO INDICATE THE NUMBER OF FILTERS TO BE SUPPLIED WITH THE CAMERA.

ON JANUARY 24, 1969, MR. HOOVER, THE CONTRACTING OFFICER, DISCUSSED THIS MATTER, BY TELEPHONE, WITH A MR. FUCHS OF TRANSMARES. THE EXACT CONTENT OF THIS CONVERSATION IS UNCLEAR, EXCEPT THAT MR. FUCHS DID GIVE MR. HOOVER A PRICE QUOTATION FOR THE CAMERA, WHICH FORMED THE BASIS FOR PURCHASE ORDER NO. -988-R4-69 ISSUED ON THE SAME DAY. HOWEVER, ON THE FACE OF THE PURCHASE ORDER AFTER ITEM NO. 51-63-05, -RMK A 21/23, IDENTIFYING THE CAMERA, THERE APPEARED THE FOLLOWING STATEMENT: "THIS INCLUDES CAMERA CONE SUSPENSION MOUNT, IRU, ONE MAGAZINE, 4 CASES, 8 FIDUCIAL MARKS AND FILTERS (B, C, D, G AND KI) INCLUDES AS-2 MOUNT.' THIS STATEMENT ALSO APPEARED ON THE FACE OF TRANSMARES' LETTER OF CONFIRMATION DATED FEBRUARY 13, 1969, AND ITS INVOICE NO. 69/78 DATED MARCH 28, 1969. THE ONLY EXCEPTION TO THE PURCHASE ORDER WAS A STATEMENT AT THE BOTTOM OF THE LETTER OF CONFIRMATION TO THE EFFECT THAT AN ADDITIONAL $350 WOULD BE CHARGED FOR A CALIBRATION TEST. ON FEBRUARY 19, THE FOREST SERVICE ISSUED A SUPPLEMENT TO THE PURCHASE ORDER COVERING THE ADDITIONAL $350. SUBSEQUENT TO RECEIPT OF THE CAMERA TRANSMARES WAS ADVISED BY THE CONTRACTING OFFICER THAT HE (THE CONTRACTING OFFICER) WOULD BE UNABLE TO PROCESS PAYMENT UNDER THE PURCHASE ORDER, SINCE THE FOREST SERVICE HAD NOT RECEIVED FILTERS C AND G.

IT WAS EXPLAINED BY MR. FUCHS THAT HIS COMPANY HAD MADE AN ERROR IN ACCEPTING THE ORDER SPECIFYING FILTERS B, C, D, G, AND KI AND THAT THE STANDARD PRACTICE WAS TO FURNISH ONLY THREE FILTERS RATHER THAN FIVE. WHILE HE FURTHER STATED THAT THE OTHER TWO FILTERS (C AND G) WERE NEVER USED, THE PERSONNEL WHO PREPARED THE PURCHASE ORDER STATE THAT IT WAS INTENDED TO ORDER, AND PRESUMABLY USE, THE TWO ADDITIONAL FILTERS.

WE HAVE HELD THAT THE ISSUANCE OF A PURCHASE ORDER BY THE GOVERNMENT PURSUANT TO A PRICE QUOTATION DOES NOT CREATE A BINDING CONTRACT, THE PURCHASE ORDER AMOUNTING TO NOTHING MORE THAN AN OFFER WHICH MUST BE ACCEPTED IN WRITING OR BY PERFORMANCE, BEFORE A BINDING CONTRACT COMES INTO EXISTENCE. 38 COMP. GEN. 190; B-134378, DECEMBER 6, 1957. SEE ALSO B-163898, JUNE 6, 1968, AND B-134926, FEBRUARY 12, 1958. IN THE PRESENT CASE THE NUMBER AND TYPES OF FILTERS DESIRED BY THE GOVERNMENT WERE CLEARLY INDICATED ON THE FACE OF THE PURCHASE ORDER, AND TRANSMARES ACCEPTED THE PURCHASE ORDER BY WRITTEN CONFIRMATION WHICH INCLUDED REFERENCE TO ALL FIVE FILTERS, THE ONLY EXCEPTION BEING AN ADDITION OF $350 FOR A CALIBRATION TEST. IT HAS BEEN HELD THAT A CONTRACTING PARTY MUST OBSERVE WHAT HE HAS REASONABLE OPPORTUNITY FOR KNOWING AND THAT A PERSON IS PRESUMED TO KNOW THESE THINGS WHICH REASONABLE DILIGENCE ON HIS PART WOULD BRING TO HIS ATTENTION. VARGAS V ESQUIRE, INC., 166 F.2D 651. CONSEQUENTLY, A BINDING CONTRACT WAS CONSUMMATED UNLESS IT CAN BE SHOWN BY CLEAR AND CONVINCING EVIDENCE THAT A MISTAKE WAS MADE AND THAT THE CONTRACTING OFFICER KNEW OR SHOULD HAVE KNOWN, OF SUCH MISTAKE. 36 COMP. GEN. 191, 192. SEE ALSO B 134378, DECEMBER 6, 1957.

TRANSMARES DID NOT ALLEGE ERROR UNTIL AFTER THE CONTRACT WAS CONSUMMATED. MOREOVER, THERE WAS NOTHING ON THE FACE OF THE QUOTATION OR CONFIRMATION TO INDICATE ERROR, NOR IS THERE ANY OTHER EVIDENCE THAT THE CONTRACTING OFFICER KNEW, OR SHOULD HAVE BEEN ON NOTICE, OF TRANSMARES' ERROR. ON THE BASIS OF THE PRESENT RECORD WE CAN ONLY CONCLUDE THAT ANY ERROR WAS DUE SOLELY TO THE NEGLIGENCE OF TRANSMARES, AND WAS NOT INDUCED, OR CONTRIBUTED TO, BY THE GOVERNMENT. THUS, THE MISTAKE WAS UNILATERAL, NOT MUTUAL, AND DOES NOT ENTITLE TRANSMARES TO RELIEF.

ACCORDINGLY, THERE APPEARS TO BE NO BASIS FOR ALLOWING ANY ADDITIONAL COMPENSATION IN EXCESS OF THE AMOUNT STATED IN THE PURCHASE ORDER.

A COPY OF THIS LETTER HAS BEEN FORWARDED TO TRANSMARES CORPORATION, AND THE FILE TRANSMITTED WITH THE DIRECTOR'S LETTER IS RETURNED.

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