B-101043, FEB 28, 1951

B-101043, FEB 28, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

I HAVE YOUR LETTER OF JANUARY 26, 1951, WITH ENCLOSURES, RELATIVE TO AN ERROR ALLEGED BY THE HAMILTON STEEL COMPANY TO HAVE BEEN MADE IN QUOTING ON ITEMS 1 TO 4, INCLUSIVE, OF ITS BID ON WHICH CONTRACT NO. AF 33(038)- 16787 IS BASED. YOU REQUEST A DECISION AS TO THE ACTION TO BE TAKEN IN THE MATTER.

THE AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, BY INVITATION NO. 33-038-51-302, REQUESTED BIDS - TO BE OPENED OCTOBER 2, 1950 - FOR FURNISHING SPECIFIED QUANTITIES OF .0219", .025", .043", .0625" AND .125" STEEL, SPRING ANNEALED STRIP, "1095," IN ACCORDANCE WITH SPECIFICATION NO. AN-QQ-S-666 DATED MAY 29, 1939, AND AMENDMENT NO. 2 DATED MAY 15, 1945. THE BID OF THE HAMILTON STEEL COMPANY WAS NOT FORWARDED HERE, BUT IT APPEARS FROM THE ABSTRACT OF BIDS THAT THE COMPANY OFFERED TO FURNISH THE SPRING STEEL UNDER ITEMS 1, 2, 3 AND 4 AT PRICES OF $20.05 PER HUNDRED POUNDS, $19.50 PER HUNDRED POUNDS, $16.75 PER HUNDRED POUNDS, AND $15.80 PER HUNDRED POUNDS, RESPECTIVELY. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 1 TO 4, INCLUSIVE, ON OCTOBER 30, 1950.

BY LETTER DATED NOVEMBER 14, 1950, THE HAMILTON STEEL COMPANY ADVISED THAT ITS QUOTATIONS ON ITEMS 1 TO 4, INCLUSIVE, WERE IN ERROR IN THAT SAID QUOTATIONS COVERED GRADE SAE 1070 ANNEALED SPRING STEEL INSTEAD OF GRADE SAE 1095 SPRING STEEL SPECIFIED IN THE INVITATION. THEREFORE, THE COMPANY REQUESTED THAT THE UNIT PRICES OF ITEMS 1, 2, 3 AND 4 OF SAID CONTRACT BE CHANGED TO READ $28.35 PER HUNDRED POUNDS, $27.90 PER HUNDRED POUNDS, $23.25 PER HUNDRED POUNDS, AND $21.65 PER HUNDRED POUNDS, RESPECTIVELY. THE COMPANY SUBMITTED ITS PRINTED PRICE LIST, WHICH SHOWS PRICES FOR SAE 1050, SAE 1075 AND SAE 1095 IN SUPPORT OF ITS ALLEGATION THAT ITS BID PRICES WERE BASED ON FURNISHING SAE "1070" SPRING STEEL.

IN AN UNDATED REPORT FROM THE CONTRACTING OFFICER IT WAS STATED THAT "CONTRACT AF 33(038)-16787, DATED 30 OCTOBER 1953, TO HAMILTON STEEL COMPANY IN THE AMOUNT OF $1,443.00 WAS ISSUED PRIOR TO ANY KNOWLEDGE OF ALLEGED ERROR."

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER THE HAMILTON STEEL COMPANY MADE AN ERROR IN ITS BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT BIDS WERE REQUESTED ON SAE 1095 GRADE OF SPRING STEEL. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE COMPANY. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C. CLS. 120, 163. IF THE COMPANY SUBMITTED A BID ON OTHER THAN GRADE SAE 1095, SUCH ERROR WAS DUE SOLELY TO THE LACK OF PROPOER CARE ON THE PART OF THE COMPANY AND NOT TO ANY FAILURE OF THE GOVERNMENT TO FURNISH SUFFICIENT INFORMATION AS TO THE EXACT GRADE OF ARTICLE REQUIRED. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505. ALSO, SEE 20 COMP. GEN. 652; AND 26 ID. 415.

MOREOVER, THERE WAS NOTHING ON THE FACE OF THE BID OF THE COMPANY TO INDICATE THAT THE PRICES QUOTED THEREIN FOR ITEMS 1 TO 4, INCLUSIVE, WERE NOT AS INTENDED. THE ABSTRACT OF BIDS INDICATES THAT THE BID OF THE HAMILTON STEEL COMPANY WAS THE ONLY RESPONSIVE BID RECEIVED ON ITEMS 1 TO 4, INCLUSIVE. HENCE, THERE ARE NO RESPONSIVE BIDS FOR COMPARISON. THEREFORE, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO HAVE BEEN NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED ITS PRICE LIST, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID PRICES. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF THE BID 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. THE RIGHT, WHICH VESTED IN THE GOVERNMENT UPON ACCEPTANCE OF THE BID, TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS THEREOF, CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F. 2D 389, AFFIRMED 32 F. 2D 141, CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEAL COMPANY V. UNITED STATES, 49 C. CLS. 327, 335; AND BAUSCH & LOMB OPTICAL COMPANY V. UNITED STATES, 78 C. CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645.

ACCORDINGLY, ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD AND THE LAW APPLICABLE THERETO, I FIND NO LEGAL BASIS FOR INCREASING THE PRICES OF ITEMS 1 TO 4, INCLUSIVE, OF THE CONTRACT INVOLVED. HENCE, THE HAMILTON STEEL COMPANY SHOULD BE REQUIRED TO FURNISH THE VARIOUS SIZES OF SPRING STEEL AT THE PRICES STIPULATED IN ITS BID WHICH WAS ACCEPTED.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S UNDATED STATEMENT, ARE RETURNED HEREWITH.