B-124913, OCT. 3, 1955

B-124913, OCT. 3, 1955

TO NU-PAKE PRODUCTS AND SUPPLY CO.:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 5, 1955, REQUESTING REVIEW OF SETTLEMENT DATED JULY 14, 1953, WHICH DISALLOWED YOUR CLAIM FOR $1,798, THE AMOUNT STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH PURCHASE ORDER NO. O.I. 16168, DATED JUNE 10, 1952, IS BASED.

IN RESPONSE TO INVITATION NO. QM-30-280-52-1550 CALLING FOR 120 ROLLS OF BARRIER MATERIAL IN 200 YARD ROLLS, YOU SUBMITTED A BID OF $14.50 PER ROLL. AFTER AWARD OF THE CONTRACT YOU ALLEGED THAT YOUR BID WAS BASED UPON MATERIAL IN 100 YARD ROLLS RATHER THAN 200 YARD ROLLS AS CALLED FOR IN THE INVITATION. ALSO, YOU CONTEND THAT "THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND DELIBERATELY SOUGHT TO TAKE ADVANTAGE THEREOF.' THAT CONNECTION YOU STATE THAT---

"THE CONTRACTING OFFICER WAS ADVISED BY NEWARK PARRIFINE THAT THEY MADE AN ERROR AND THEY REFUSED THE OFFER VERBALLY. INSTEAD OF THE CONTRACTING OFFICER ADVISING US TO RECHECK OUR FIGURES, AS OTHER CONTRACTING OFFICERS HAVE DONE WHEN AN OBVIOUS ERROR WAS MADE, HE ASKED US HOW MUCH FREIGHT WAS INVOLVED FROM NEW YORK TO SAN FRANCISCO. WE TOLD HIM THAT $1.00 FREIGHT WAS INVOLVED PER ROLL. HE TOLD US WE WERE GETTING AN AWARD FOR THE CONTRACT. SEVERAL DAYS LATER WE NOTICED THE ERROR AND TOLD THE CONTRACTING OFFICER WE WOULD NOT ACCEPT SAME. HE TOLD US TO ACCEPT THE OFFER AND FILE AN ADJUSTMENT CLAIM FOR RELIEF. WHEN THE ORDER CAME IN, WE DID NOT ACCEPT SAME. FINALLY IN SEPTEMBER, AFTER BEING ASSURED BY THE CONTRACTING OFFICER THAT OUR CLAIM WOULD BE ACCEPTED AND PAID, WE THEN MANUFACTURED THE MATERIAL. THE RETURNED THE SECOND TRAILER TO THE AGENCY.' ACCEPTING THE ORDER UNDER DURESS, STATING WE WOULD BE PAID IN FULL BY FILLING FOR IEF.'

THERE IS NO RECORD HERE THAT THE CONTRACTING OFFICER WAS ADVISED BY THE NEXT LOW BIDDER THAT IT HAD MADE AN ERROR IN ITS BID, AS YOU ALLEGE. THE CONTRARY THE SUCCESSOR CONTRACTING OFFICER STATED THAT THERE WAS NOTHING TO PUT THE PROCUREMENT OFFICIALS ON NOTICE THAT A MISTAKE HAD BEEN MADE AND "THAT THE NEXT HIGHEST BID RECEIVED FOR SAID BARRIER MATERIAL WAS $14.90 PER ROLL, A DIFFERENCE OF ONLY ?50.' IN CONNECTION WITH YOUR STATEMENT THAT THE CONTRACTING OFFICER "ASKED US HOW MUCH FREIGHT WAS INVOLVED FROM NEW YORK TO SAN FRANCISCO," THE RECORD SHOWS THAT THE INVITATION FOR BID WAS AMENDED BY ADDENDUM NO. 1, DATED MAY 12, 1952, WHEREBY BIDS WERE REQUESTED ON AN F.O.B. ORIGIN BASIS ONLY. ON THE ADDENDUM SIGNED BY YOU IS THE NOTATION "WE CHANGE OUR BID TO READ $14.50 PER ROLL DUE TO CHANGE IN DESTINATION TO BE F.O.B. ORIGIN.' THUS, IT APPEARS THAT THE REQUEST FOR AND THE CHANGE IN THE BID WAS FORMALLY AND PROPERLY MADE BY THE CONTRACTING OFFICER PRIOR TO AWARD OF BID.

SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED BY YOU UNTIL AFTER AWARD. THE ACCEPTANCE OF YOUR BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88; UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT BARRIER MATERIAL PACKED IN 200 YARD ROLLS WAS REQUIRED. IT IS CLEAR THAT IF YOUR BID WAS BASED ON MATERIAL PACKED IN 100 YARD ROLLS, THE ERROR WAS DUE SOLELY TO YOUR NEGLIGENCE OR OVERSIGHT. THUS, CONTRARY TO YOUR CONTENTION,SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. ALSO, SEE 20 COMP. GEN. 652; AND 26 ID. 415. ACCORDINGLY, THE SETTLEMENT OF JULY 14, 1953, IS SUSTAINED.

WITH REGARD TO YOUR CLAIM FOR $100, APPARENTLY WITHHELD BY THE ADMINISTRATIVE OFFICE IN CONNECTION WITH A PROPOSED REQUEST FOR RELIEF UNDER TITLE II OF THE FIRST WAR POWERS ACT OF 1941, I AM TODAY DIRECTING THE CLAIMS DIVISION OF THIS OFFICE TO OBTAIN A REPORT FROM THE UNITED STATES MARINE CORPS, AND UPON RECEIPT THEREOF AND WILL BE FURTHER ADVISED IN THE MATTER.

WITH RESPECT TO YOUR CLAIM FOR INTEREST "FROM DATE OF INCEPTION," YOU ARE ADVISED THAT THE UNITED STATES IS NOT LIABLE FOR THE PAYMENT OF INTEREST ON ANY OF ITS OBLIGATIONS EXCEPT IN THOSE CASES WHERE INTEREST IS EXPRESSLY PROVIDED BY STATUTE OR LAWFULLY ASSUMED BY CONTRACT. SINCE NEITHER OF SUCH PREREQUISITES EXISTS IN THIS CASE THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF INTEREST. SEE ANGARICA V. BAYARD, 127 U.S. 251; SEABOARD AIRLINE RAILWAY COMPANY V. UNITED STATES, 261 U.S. 299; 27 COMP. GEN. 690, AND CASES THERE CITED.