B-100516, MAR 27, 1951

B-100516: Mar 27, 1951

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: I HAVE YOUR LETTER OF JANUARY 2. TO HAVE BEEN MADE IN QUOTING ON ITEM 57 OF HIS BID OPENED ON OCTOBER 23 AND ACCEPTED ON OCTOBER 26. OLSON ON ITEM 57 AND 18 OTHER ITEMS TOTALING $738.99 WAS ACCEPTED ON OCTOBER 26. THERE WAS SUBMITTED A LATER PROTO TOOLS PRICE LIST. THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID. WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. WHILE THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN THE PRICE OF $2.25 QUOTED BY MR. ORDINARILY NO FAIR COMPARISON CAN BE MADE WHERE ONLY TWO BIDS ARE RECEIVED. THERE BEING NO MORE REASON FOR CONSIDERING THE LOW BID TOO LOW THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN QUOTING A PRICE TOO HIGH.

B-100516, MAR 27, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

I HAVE YOUR LETTER OF JANUARY 2, 1951, WITH ENCLOSURES, REQUESTING DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY T. H. OLSON, BACLIFF, TEXAS, TO HAVE BEEN MADE IN QUOTING ON ITEM 57 OF HIS BID OPENED ON OCTOBER 23 AND ACCEPTED ON OCTOBER 26, 1950, CONSUMMATING CONTRACT NO. (41-007) 51-1015.

THE PURCHASING AND CONTRACTING OFFICER, BERGSTROM AIR FORCE BASE, AUSTIN, TEXAS, BY INVITATION NO. (IFB) 41-007-51-8, REQUESTED BIDS FOR FURNISHING VARIOUS ITEMS OF TOOLS. IN RESPONSE TO THE INVITATION, T. H. OLSON SUBMITTED A BID DATED OCTOBER 23, 1950, OFFERING TO FURNISH, AMONG OTHERS, ITEM NO. 57, COVERING 48 JOINT-SOCKET WRENCHES, UNIVERSAL, 3/4-INCH SQUARE DRIVE, ONE MALE AND ONE FEMALE END, PLOMB 5620 OR EQUAL, FOR $2.25 EACH, OR FOR THE TOTAL AMOUNT OF $108. THE BID OF MR. OLSON ON ITEM 57 AND 18 OTHER ITEMS TOTALING $738.99 WAS ACCEPTED ON OCTOBER 26, 1950, CONSUMMATING CONTRACT NO. (41-007) 51 1015.

BY LETTER DATED OCTOBER 27 AND NOVEMBER 6, 1950, MR. OLSON ADVISED THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE ON HIS BID IN THAT IN OBTAINING PRICES FOR THE VARIOUS ITEMS FROM HIS SUPPLIER, THE SUPPLIER READ THE PRICE OF ITEM 57 INCORRECTLY, OR THAT HE MISUNDERSTOOD THE PRICE, OR MADE AN ERROR IN MAKING THE ENTRY. MR. OLSON REQUESTS THAT THE PRICE FOR SUCH ITEM BE INCREASED TO $6.10 EACH, AND IN SUPPORT THEREOF SUBMITTED PROTO TOOLS PRICE LIST NO. 5006M EFFECTIVE MAY 22, 1950, WHICH SHOWS A TRADE PRICE OF $7.65 EACH FOR THE ITEM INVOLVED. ALSO, THERE WAS SUBMITTED A LATER PROTO TOOLS PRICE LIST, AND A PRICE LIST OF SNAP-ON TOOLS CORPORATION.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. WHILE THERE IS A SUBSTANTIAL DIFFERENCE BETWEEN THE PRICE OF $2.25 QUOTED BY MR. OLSON ON ITEM 57 AND THE ONLY OTHER BID OF $6.12 ON SAID ITEM, ORDINARILY NO FAIR COMPARISON CAN BE MADE WHERE ONLY TWO BIDS ARE RECEIVED, THERE BEING NO MORE REASON FOR CONSIDERING THE LOW BID TOO LOW THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN QUOTING A PRICE TOO HIGH. SEE 20 COMP. GEN. 286. THE ABSTRACT OF BIDS SHOWS THAT PRICES ON OTHER ITEMS VARIED PROPORTIONATELY. A FEW OF SUCH ITEMS ARE AS FOLLOWS:

ITEM NO. LOW BID HIGH BID9 $0.0845

$ 0.34 10 0.0845 0.34 42

.04 0.30(OLSON) 48 .23

0.8008 70 .80 2.40

(OLSON) 94 .42 (OLSON) 1.00

IN VIEW OF THE WIDE VARIANCE IN THE PRICES RECEIVED IN RESPONSE TO THE INVITATION, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS, OR NECESSARILY SHOULD HAVE BEEN, ON NOTICE OF THE PROBABILITY OF ERROR. ALTHOUGH, AFTER AWARD, THE BIDDER FURNISHED CERTAIN PRICE LISTS IN SUPPORT OF HIS ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE BIDDER IN COMPUTING HIS BID PRICE ON ITEM NO. 57. THE RECORD INDICATES THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. ALSO, SINCE MR. OLSON WAS AWARDED OTHER ITEMS TOTALING $630.99 WITH RESPECT TO WHICH NO ERROR WAS ALLEGED, IT DOES NOT APPEAR THAT THE CONTRACT AS A WHOLE IS UNCONSCIONABLE. SEE 2 COMP. GEN. 449. 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.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. IF, AS ALLEGED, MR. OLSON MADE AN ERROR ON ITEM 57 OF HIS BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO HIS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS MAY HAVE BEEN MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, AFFORDS NO BASIS FOR GRANTING RELIEF TO THE CONTRACTOR. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR INCREASING THE CONSIDERATION SPECIFIED FOR ITEM 57 OF CONTRACT NO. (41-007) 51-1015 OR FOR RELIEVING THE CONTRACTOR FROM LIABILITY FOR FURNISHING SAID ITEM.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF FACTS AND RECOMMENDATION OF THE CONTRACTING OFFICER, ARE RETURNED HEREWITH.