B-129801, MAR. 20, 1957

B-129801: Mar 20, 1957

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TO SAFETEE GLASS COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18. THE AMOUNT STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE ON ITEM NO. 140 OF YOUR BID ON WHICH CONTRACT NO. IS BASED. WHICH WAS MUCH LESS THAN THE SHIPPING WEIGHT ESTIMATED BY THE GOVERNMENT FOR THE MATERIAL PACKED FOR EXPORT. YOU WERE REQUESTED BY THE CONTRACTING OFFICER TO VERIFY YOUR SHIPPING WEIGHT. NO FURTHER DETAILS IN THE MATTER WERE FURNISHED AT THIS TIME. AWARD WAS MADE TO YOU FOR ITEM NO. 140 ON MARCH 10. YOU SUBMITTED A WORK SHEET TO SUPPORT YOUR CONTENTION THAT YOUR BID WAS BASED ON PACKING FOUR GLASSES TO THE BOX. IT IS NOT SUFFICIENT IN CASES WHERE BIDS ARE OPENED AND THE AMOUNTS OF ALL THE BIDS DISCLOSED.

B-129801, MAR. 20, 1957

TO SAFETEE GLASS COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18, 1957, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 4, 1957, WHICH DISALLOWED YOUR CLAIM FOR $2,554.99, THE AMOUNT STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE ON ITEM NO. 140 OF YOUR BID ON WHICH CONTRACT NO. DA-11-184-ENG-13588, DATED MARCH 10, 1955, IS BASED.

IN RESPONSE TO INVITATION NO. DA-ENG-11-184-55-C-203 CALLING FOR CLEAR LAMINATED SAFETY GLASS, YOU SUBMITTED, AMONG OTHERS, A BID ON ITEM NO. 140 OF $3.08 EACH FOR DELIVERY OF 9,152 PIECES, F.O.B. CARS PHILADELPHIA, PENNSYLVANIA, LOADED, BLOCKED AND PACKED FOR EXPORT SHIPMENT. THE SPECIFICATIONS PROVIDED THAT THE GROSS WEIGHT OF EACH PACKAGE SHOULD NOT EXCEED 70 POUNDS. SINCE YOUR BID SHOWED A GROSS WEIGHT OF 139,568 POUNDS, WHICH WAS MUCH LESS THAN THE SHIPPING WEIGHT ESTIMATED BY THE GOVERNMENT FOR THE MATERIAL PACKED FOR EXPORT, YOU WERE REQUESTED BY THE CONTRACTING OFFICER TO VERIFY YOUR SHIPPING WEIGHT. BY LETTER OF FEBRUARY 3, 1955, YOU ADVISED THE CONTRACTING OFFICER THAT YOU HAD ERRONEOUSLY THOUGHT FOUR SHEETS OF GLASS COULD BE PACKED IN EACH BOX BUT LATER DETERMINED THAT ONLY THREE COULD BE PACKED IN EACH BOX WITHIN THE PRESCRIBED WEIGHT LIMIT AND REQUESTED THAT YOUR BID ON ITEM NO. 140 BE INCREASED FROM $3.08 TO $3.21 EACH. HOWEVER, NO FURTHER DETAILS IN THE MATTER WERE FURNISHED AT THIS TIME. BY LETTER DATED FEBRUARY 17, 1955, YOU REQUESTED THAT YOUR LETTER OF FEBRUARY 3, 1955, BE DISREGARDED, AND THAT THE SPECIFICATIONS BE MODIFIED TO INCREASE THE GROSS ALLOWABLE SHIPPING WEIGHT PER BOX TO 78 POUNDS. THEREAFTER, AWARD WAS MADE TO YOU FOR ITEM NO. 140 ON MARCH 10, 1955, WITH NO CHANGE IN THE SPECIFICATIONS RELATIVE TO THE MAXIMUM PERMISSIBLE WEIGHT. ON SEPTEMBER 15, 1955, AFTER COMPLETE PERFORMANCE AND PAYMENT UNDER THE CONTRACT, YOU SUBMITTED A WORK SHEET TO SUPPORT YOUR CONTENTION THAT YOUR BID WAS BASED ON PACKING FOUR GLASSES TO THE BOX.

YOU CONTEND THAT YOU SHOULD NOT BE HELD TO YOUR BID PRICE BECAUSE YOU PROTESTED BOTH TO CHICAGO AND WASHINGTON AS TO THE ALLEGED ERROR. IT IS NOT SUFFICIENT IN CASES WHERE BIDS ARE OPENED AND THE AMOUNTS OF ALL THE BIDS DISCLOSED, THAT THE LOW BIDDER MERELY ALLEGED ERROR IN ITS BID IN ORDER TO BE RELIEVED OF FURNISHING THE SUPPLIES OR MATERIALS ON WHICH IT HAS BID. IN ORDER TO OBTAIN RELIEF IN SUCH CASES THERE SHOULD BE AN IMMEDIATE SUBMISSION OF SUCH PROOF AND EXPLANATION AS TO LEAVE NO ROOM FOR DOUBT THAT A BONA FIDE MISTAKE WAS MADE AND HOW IT OCCURRED. PREVIOUSLY STATED, YOU ALLEGED THE ERROR ON FEBRUARY 3, 1955, BUT IT WAS NOT UNTIL SEPTEMBER 15, 1955, AFTER COMPLETE PERFORMANCE AND PAYMENT UNDER THE CONTRACT THAT YOU DID SUBMIT A WORK SHEET TO SUPPORT YOUR CONTENTION THAT YOUR BID WAS BASED ON PACKING FOUR GLASSES TO THE BOX. BY YOUR LETTER OF FEBRUARY 17, 1955, AS AN ALTERNATIVE TO YOUR REQUEST FOR AN INCREASE IN THE UNIT PRICE YOU ASKED PERMISSION TO INCREASE THE WEIGHT OF EACH BOX TO 78 POUNDS. YOU HAD PREVIOUSLY BEEN ADVISED BY THE CONTRACTING OFFICER THAT A WAIVER OF WEIGHT REQUIREMENTS UNDER THE SPECIFICATIONS WAS NOT PERMITTED UNDER THE ARMED SERVICES PROCUREMENT REGULATIONS. IF BIDS HAD BEEN INVITED ON A BASIS OF PERMITTING A MAXIMUM SHIPPING WEIGHT OF 78 POUNDS PER BOX, OTHER BIDDERS MIGHT HAVE SUBMITTED LOWER QUOTATIONS AND THE GOVERNMENT COULD HAVE PURCHASED THE GLASS AT A LOWER PRICE. THE SPECIFICATIONS WERE CLEAR AS TO THE PACKING REQUIREMENTS AND IF A MISTAKE WAS MADE IT WAS DUE SOLELY TO THE LACK OF PROPER CARE ON YOUR PART, THE MISTAKE NOT BEING INDUCED BY, OR IN ANY WAY CONTRIBUTED TO BY THE GOVERNMENT.

IT APPEARS THAT THERE IS FOR APPLICATION HERE THE PRINCIPLES LAID DOWN IN THE CASES 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., INC., 133 F2D 399. IN DENYING RELIEF IN BOTH OF THESE CASES FOR THE AMOUNTS CLAIMED BY REASON OF ERROR 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 PREMISES 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. IN ANY EVENT THE GOVERNMENT'S INSISTENCE UPON THE PERFORMANCE OF THE CONTRACT WAS NOT AN UNCONSCIONABLE ACT ON ITS PART.

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Nov 21, 2017

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    We deny the protest in part and dismiss the protest in part.
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Nov 16, 2017

  • HBI-GF, JV
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    We dismiss the protest because it raises a matter of contract administration over which we do not exercise jurisdiction.
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Nov 15, 2017

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