B-100406, SEP 11, 1951

B-100406, SEP 11, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED JULY 11, 1951, WITH ENCLOSURES, FROM THE CHIEF, ADJUDICATIONS BRANCH, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FURNISHING A REPORT CONCERNING A LETTER DATED DECEMBER 27, 1950, FROM FAULTLESS CASTER CORPORATION WHEREIN ERROR IS ALLEGED TO HAVE BEEN MADE IN ITS BID UPON WHICH PURCHASE ORDER NO. 51-7374 FOR CASTERS IS BASED.

THE KELLY AIR FORCE BASE, BY INVITATION NO. IFB-41-142-51-346, REQUESTED BIDS - TO BE OPENED OCTOBER 25, 1950 - FOR FURNISHING THREE ITEMS OF CASTERS. ITEM NO. 2 CALLED FOR 1500 BALL BEARING SWIVEL CASTERS WITH WHEEL DIAMETER OF 2 1/2 INCHES, FACE OR THREAD WIDTH 1 1/8 INCHES AND LOAD CAPACITY 175 POUNDS - BASSICK OR EQUAL. THE BID OF THE FAULTLESS CASTER CORPORATION WAS NOT SUBMITTED TO THIS OFFICE, BUT IT APPEARS THAT THE CORPORATION SUBMITTED A BID OFFERING TO FURNISH CASTERS UNDER ITEM NO. 2 AT $0.333 EACH. THE BID FORM CONTAINED A GUARANTEE PROVISION AS FOLLOWS:

"BIDDER HEREBY GUARANTEES THAT THE ITEM OR ITEMS BID ON ARE EQUAL TO, AND INTERCHANGEABLE AS TO APPLICABILITY, WITH THE ITEM OR ITEMS SPECIFIED, WITHOUT PHYSICAL MODIFICATION, IF BID IS SUBMITTED ON OTHER THAN THE ITEM OR ITEMS SPECIFIED."

IN FIRST INDORSEMENT DATED FEBRUARY 13, 1951, THE CONTRACTING OFFICER STATED THAT ON OCTOBER 31, 1950, THE FAULTLESS CASTER CORPORATION WAS NOTIFIED THAT ITEM NO. 2 WAS AWARDED TO IT AND THE ABOVE-CITED PURCHASE ORDER WAS PLACED BY TELEGRAM, AND THAT THE CONTRACTOR'S COPY OF SAID ORDER WAS MAILED ON NOVEMBER 2, 1950. BY LETTER OF NOVEMBER 13, 1950, THE CORPORATION ALLEGED THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT PROPOSED TO FURNISH ITS NO. 127-2 CASTER DESCRIBED AS A 2 INCH WHEEL WITH 1 INCH FACE AND A LOAD CAPACITY OF 125 POUNDS AT $0.333 EACH, WHEREAS IT SHOULD HAVE OFFERED, AS THE NEAREST EQUIVALENT TO BASSICKS 2619, ITS NO. 127-2 1/2 CASTER, DESCRIBED AS A 2 1/2 INCH WHEEL WITH 1 1/8 INCH FACE AND A LOAD CAPACITY OF 175 POUNDS, AT A PRICE OF $0.697 EACH AND, THEREFORE, IT REQUESTED PERMISSION TO WITHDRAW ITS BID ON ITEM NO. 2. BY LETTER OF DECEMBER 17, 1950 THE CONTRACTING OFFICER INVITED ATTENTION TO THE GUARANTEE PROVISION AND ADVISED THE CONTRACTOR THAT HE WAS NOT AUTHORIZED TO GRANT AN INCREASE IN THE CONTRACT PRICE.

THE ABSTRACT OF BIDS SHOWS THE FOUR OTHER BIDS RECEIVED ON ITEM NO. 2 WERE $0.4802, $0.61, $0.804 AND $1.55 EACH. THE CONTRACTING OFFICER STATED THAT THE DIFFERENCE IN THE BIDS DID NOT PLACE HIM ON NOTICE OF AN ERROR IN THE BID OF THE CORPORATION. THE DISCREPANCY BETWEEN THE CORPORATION'S BID OF $0.333 EACH ON ITEM NO. 2 AND THE OTHER BIDS ON SAID ITEM DOES NOT APPEAR TO BE SO GREAT AS TO JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION. ALSO, UNDER THE REFERRED-TO GUARANTEE PROVISION IT WAS TO BE ASSUMED THAT THE BID OF THE CORPORATION WAS SUBMITTED ON THE ARTICLE SPECIFIED OR WAS EQUAL THERETO. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID OF THE CORPORATION WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID WAS UPON THE CORPORATION. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C. CLS. 120, 163. THE INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT AS TO THE TYPE AND SIZE OF THE CASTER CALLED FOR UNDER ITEM NO. 2. CONSEQUENTLY, IF THE CORPORATION QUOTED ON ANOTHER TYPE OF CASTER AS ALLEGED, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS WAS MADE WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507; AND OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS NO LEGAL BASIS FOR RELEASING THE FAULTLESS CASTER CORPORATION FROM OBLIGATION TO FURNISH THE CASTERS AT THE PRICE SPECIFIED IN ITS BID WHICH WAS ACCEPTED.