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B-127157, JUL. 20, 1956

B-127157 Jul 20, 1956
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TO WOODHOUSE STATIONERY COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. THE RECORD INDICATES THAT YOUR BID WAS SUBMITTED ON JULY 18. BIDS WERE OPENED THE FOLLOWING DAY. WHICH WAS CONSIDERABLY LOWER THAN THE OTHER BIDS. THE CORRECTNESS OF THE BID WAS VERIFIED BY LETTER OF JULY 21 AND ON JULY 22 YOUR BID WAS ACCEPTED. YOU INDICATED THAT YOUR BID PRICE WAS BASED ON A TYPEWRITER ERASER WITHOUT BRUSH RATHER THAN THE ERASER WITH BRUSH REQUIRED UNDER THE INVITATION TO BID. WHICH WAS ATTACHED TO YOUR LETTER. INDICATES THE CIRCUMSTANCES UNDER WHICH THE ERROR WAS MADE. IT APPEARS THAT THE EMPLOYEES OF THE KOH-I NOOR COMPANY WHO WOULD NORMALLY QUOTE PRICES ON SUCH ITEMS WERE ON VACATION AND THAT THE SUBSTITUTE.

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B-127157, JUL. 20, 1956

TO WOODHOUSE STATIONERY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1956, REQUESTING RELIEF FROM THE PROVISIONS OF CONTRACT GS-075-4682, PURSUANT TO WHICH YOU UNDERTOOK TO SUPPLY TYPEWRITER ERASERS TO THE GENERAL SERVICES ADMINISTRATION AT A PRICE OF 54 CENTS PER DOZEN.

THE RECORD INDICATES THAT YOUR BID WAS SUBMITTED ON JULY 18, 1955. BIDS WERE OPENED THE FOLLOWING DAY, AND ON JULY 20 THE CONTRACTING OFFICER, BY TELEGRAM, REQUESTED THAT YOU VERIFY YOUR BID, WHICH WAS CONSIDERABLY LOWER THAN THE OTHER BIDS. THE CORRECTNESS OF THE BID WAS VERIFIED BY LETTER OF JULY 21 AND ON JULY 22 YOUR BID WAS ACCEPTED. SUBSEQUENTLY, BY LETTER OF JULY 28, YOU INDICATED THAT YOUR BID PRICE WAS BASED ON A TYPEWRITER ERASER WITHOUT BRUSH RATHER THAN THE ERASER WITH BRUSH REQUIRED UNDER THE INVITATION TO BID.

A LETTER DATED MAY 15, 1956, FROM THE KOH-I-NOOR PENCIL COMPANY, WHICH WAS ATTACHED TO YOUR LETTER, INDICATES THE CIRCUMSTANCES UNDER WHICH THE ERROR WAS MADE. IT APPEARS THAT THE EMPLOYEES OF THE KOH-I NOOR COMPANY WHO WOULD NORMALLY QUOTE PRICES ON SUCH ITEMS WERE ON VACATION AND THAT THE SUBSTITUTE, LEFT IN CHARGE, ERRONEOUSLY QUOTED THE PRICE OF ERASERS WITHOUT BRUSH. FURTHER, IT IS INDICATED THAT THE REQUEST FOR VERIFICATION WAS RECEIVED AT A TIME WHEN MR. WOODHOUSE WAS NOT AVAILABLE, AND HIS ASSISTANT MERELY CHECKED THE PRICE QUOTED BY KOH-I-NOOR INSTEAD OF REQUESTING VERIFICATION FROM KOH-I-NOOR AS APPARENTLY IS THE PRACTICE.

YOU INDICATE IN YOUR LETTER THAT YOU HAVE A COPY OF OUR DECISION, B 127157, APRIL 26, 1956, TO THE GENERAL SERVICES ADMINISTRATION. AS WE STATED IN THAT DECISION, THE BASIC QUESTION INVOLVED IS WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF YOUR BID. THE DESCRIPTION OF THE MERCHANDISE CONTAINED IN THE INVITATION IS CLEAR AND UNAMBIGUOUS. THE ACCEPTANCE OF YOUR BID BY THE CONTRACTING OFFICER WAS MADE IN GOOD FAITH AFTER VERIFICATION OF THE PRICE. UNDER SUCH CIRCUMSTANCES A VALID AND BINDING CONTRACT RESULTED UPON THE ACCEPTANCE OF THE BID.

THE BINDING CONTRACT WHICH RESULTED VESTED IN THE GOVERNMENT THE RIGHT TO RECEIVE THE MERCHANDISE FOR THE PRICE OF 54 CENTS PER DOZEN, AND NO OFFICER OF THE GOVERNMENT HAS THE AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 31, CERTIORARI DENIED, 280 U.S. 574.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR PAYMENT BY THE GOVERNMENT OF ANY AMOUNT IN EXCESS OF THE PRICE SPECIFIED IN THE CONTRACT.

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