B-132666, JAN. 10, 1958

B-132666, JAN. 10, 1958

TO SANFORD MECHANICAL EQUIPMENT COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 3, 1957, REQUESTING FURTHER CONSIDERATION OF OUR DECISION DATED SEPTEMBER 19, 1957, WHICH SUSTAINED THE SETTLEMENT DISALLOWING YOUR CLAIM FOR $1,647.27 REPRESENTING THE ADDITIONAL AMOUNT ALLEGED BY YOU TO BE DUE AS A RESULT OF AN ERROR MADE IN YOUR BID UPON WHICH PURCHASE ORDER NO. 37-20964-37 WAS AWARDED BY THE DEPARTMENT OF THE ARMY ON JUNE 24, 1955.

YOU STATE THAT "WE BELIEVE THAT IF YOU WILL CHECK FURTHER WITH THE CONTRACTING OFFICER IN SAN FRANCISCO, THAT THEY DID NOT CHECK WITH ANOTHER COMPANY FOR A PRICE CHECK UNTIL AFTER WE CALLED THEIR ATTENTION TO THE ERROR IN OUR BID.' WHEN YOUR CLAIM WAS TRANSMITTED TO OUR OFFICE FOR SETTLEMENT IT WAS ACCOMPANIED BY A FINDING OF FACT BY THE CONTRACTING OFFICER, DATED FEBRUARY 1, 1957. IN THAT FINDING THE CONTRACTING OFFICER STATED THAT SINCE ONLY ONE BID WAS RECEIVED IN RESPONSE TO THE INVITATION, AND IN ORDER TO DETERMINE WHETHER OR NOT YOUR BID WAS IN LINE WITH THE CURRENT MARKET PRICES, HIS OFFICE, AFTER OPENING OF BIDS BUT PRIOR TO AWARD, CONTACTED BY TELEPHONE THE L. F. CHURCH COMPANY FOR A PRICE CHECK OF THE TYPE OF EXHAUST FAN REQUIRED. THE COMPANY REPLIED THAT IT HAD ANTICIPATED SUBMITTING A BID OF APPROXIMATELY $220 PER UNIT, BUT SINCE IT HAD NOT RECEIVED CONFIRMATION OF AN ESTIMATE FROM THE FACTORY PRIOR TO THE TIME SET FOR THE BID OPENING, IT HAD NOT SUBMITTED A BID. THEREFORE, SINCE YOUR BID WAS COMPARABLE TO THE PRICE FIXED BY THE L. F. CHURCH COMPANY, AWARD OF THE CONTRACT WAS MADE TO YOU ON JUNE 24, 1955. THE RECORD SHOWS THAT BY LETTER OF JULY 21, 1955, YOU NOTIFIED THE CONTRACTING OFFICER OF THE ALLEGED ERROR. THUS, CONTRARY TO YOUR CONTENTION, THE CONTRACTING OFFICER DID CONTACT ANOTHER COMPANY FOR PRICE CHECK OF THE TYPE OF EXHAUST FANS REQUIRED BEFORE YOU BROUGHT TO HIS ATTENTION THE ALLEGED ERROR.

THE QUESTION FOR CONSIDERATION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT AROSE BY REASON OF THE ACCEPTANCE OF YOUR BID. IN THE CIRCUMSTANCES STATED ABOVE IT MAY NOT BE PRESUMED THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID. THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 U.S. 645.

WITH RESPECT TO YOUR CONTENTION THAT SPECIFICATION NO. 12-11 WAS OBSOLETE, IT MAY BE STATED THAT IT IS NOT THE DUTY OF THE BIDDER TO DETERMINE THE NEEDS OF THE GOVERNMENT; THAT IS A MATTER FOR THE DETERMINATION OF THE PURCHASING OFFICE. THE FACT THAT THE CORPS OF ENGINEERS BELIEVED THE REQUIREMENTS OF THIS SPECIFICATION WOULD BE ENTIRELY ADEQUATE FOR THE PARTICULAR PROCUREMENT OF EXHAUST FANS DESIRED AT THAT TIME AND SPECIFICALLY INTENDED TO, AND DID INCORPORATE IT AS A PART OF THE INVITATION, WOULD RULE OUT ANY POSSIBILITY OF A MISTAKE ON THE PART OF THE DEPARTMENT OF THE ARMY. THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF YOUR BID WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS YOU ALLEGE, YOU MADE AN ERROR BY FAILING TO ATTACH TO YOUR BID A SPECIFICATION SHEET COVERING THE EQUIPMENT YOU INTENDED TO FURNISH, SUCH ERROR WAS DUE SOLELY TO YOUR OWN OVERSIGHT AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

IN CONNECTION WITH YOUR STATEMENT THAT THERE IS A MORAL ASPECT IN A MATTER OF THIS KIND, YOU ARE ADVISED THAT OUR OFFICE IS AUTHORIZED ONLY TO SETTLE CLAIMS IN STRICT ACCORDANCE WITH LEGAL PRINCIPLES APPLICABLE THERETO AND THERE IS NO AUTHORITY OR JURISDICTION TO ALLOW CLAIMS BASED SOLELY ON A MORAL OBLIGATION OF THE GOVERNMENT.