B-129801, APR. 25, 1957

B-129801, APR. 25, 1957

TO SAFETEE GLASS COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 25, 1957, REQUESTING FURTHER CONSIDERATION OF OUR DECISION DATED MARCH 20, 1957, TO YOU, WHICH SUSTAINED THE DISALLOWANCE OF 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 REPLY TO YOUR INQUIRY AS TO WHETHER THE UNIT PRICE WOULD HAVE BEEN CHANGED FROM $3.08 TO $3.21 EACH HAD YOU NOT REQUESTED THAT THE SPECIFICATION BE MODIFIED TO INCREASE THE SHIPPING WEIGHT PER BOX TO 78 POUNDS, YOU ARE ADVISED THAT IN NO WAY WAS THERE ANY INTENTION IN THE DECISION TO MAKE SUCH AN INFERENCE. AS WE POINTED OUT IN THE DECISION, BY LETTER OF FEBRUARY 3, 1955, TO THE CONTRACTING OFFICER, YOU 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 OF FEBRUARY 17, 1955, YOU REQUESTED THAT YOUR LETTER OF FEBRUARY 3, 1955, BE DISREGARDED. AS 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 WORKSHEET TO SUPPORT YOUR CONTENTION THAT YOUR BID WAS BASED ON PACKING FOUR GLASSES TO THE BOX.

IN CONNECTION WITH YOUR STATEMENT THAT YOU WERE ENTITLED TO A REFUSAL BEFORE BEING PLACED UNDER CONTRACT WITHOUT AN ADJUSTMENT OR DEVIATION BEING FIRST GRANTED, YOU ARE ADVISED THAT, GENERALLY, PROPOSALS SUBMITTED IN RESPONSE TO GOVERNMENT ADVERTISEMENTS MAY NOT BE MODIFIED OR WITHDRAWN AFTER THE BIDS HAVE BEEN OPENED, AND THEIR CONTENTS MADE PUBLIC, AND THE SUCCESSFUL BIDDER LEGALLY IS BOUND TO ACCEPT THE AWARD. SEE 19 COMP. GEN. 761, 8 ID. 397. THIS RULE IS FOUNDED UPON SOUND PUBLIC POLICY, SINCE IT LONG HAS BEEN RECOGNIZED THAT CONTRACTING OFFICERS FOR THE GOVERNMENT STAND UPON AN ENTIRELY DIFFERENT FOOTING FROM PRIVATE INDIVIDUALS IN CONTRACTUAL MATTERS, IN THAT THERE IS IMPOSED UPON THEM THE MANDATORY DUTY EITHER OF ACCEPTING THE MOST ADVANTAGEOUS BID SUBMITTED UP UNTIL THE TIME OF OPENING, OR OF REJECTING ALL BIDS AND READVERTISING. SEE SCOTT V. UNITED STATES, 44 C.CLS. 524, 527; 17 COMP. GEN. 554. WHATEVER MAY HAVE BEEN YOUR RIGHTS PRIOR TO ACCEPTING THE AWARD AND PERFORMANCE OF THE CONTRACT WERE WAIVED BY YOUR PROCEEDING WITH THE PERFORMANCE OF THE CONTRACT.

IN THE CIRCUMSTANCES THE ACCEPTANCE OF YOUR BID GAVE RISE TO A BINDING CONTRACT. WHILE THE CONTRACTING OFFICER WAS AUTHORIZED BY PARAGRAPH 2 OF THE GENERAL PROVISIONS TO MAKE CHANGES WITHIN THE GENERAL SCOPE OF THE CONTRACT, THE PROVISION ALSO REQUIRED AN EQUITABLE ADJUSTMENT BE MADE IN THE CONTRACT PRICE, IF SUCH CHANGES CAUSED AN INCREASE OR DECREASE IN THE COST OF CONTRACT PERFORMANCE. OUR OFFICE, AS WELL AS ALL AGENTS AND OFFICERS OF THE UNITED STATES, HAS NO AUTHORITY TO WAIVE CONTRACTUAL RIGHTS WHICH HAVE ACCRUED TO THE GOVERNMENT, OR TO MODIFY EXISTING CONTRACTS WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE AMERICAN SALES CORP. V. UNITED STATES, 27 F.2D 389, AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335. THE CONTRACT BY ITS SPECIFICATIONS PROVIDED THAT THE GROSS WEIGHT OF EACH PACKAGE SHOULD NOT EXCEED 70 POUNDS AND YOU WERE LIMITED THEREBY.