B-101332, FEB 26, 1951

B-101332, FEB 26, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 6, 1951, WITH ENCLOSURES, FROM CAPTAIN JOSEPH P. BECK, USAF, CONTRACTING OFFICER, MALLORY AF SPECIALIZED DEPOT, MEMPHIS, TENNESSEE, REQUESTING A DECISION RELATIVE TO AN ERROR ALLEGED BY THE J.A. TAPP LUMBER COMPANY TO HAVE BEEN MADE ON ITEMS NOS. 1 AND 2 OF ITS BID DATED JANUARY 20, 1951, UPON WHICH CONTRACT NO. AF 40(087)471, DATED JANUARY 25, 1951, IS BASED.

SINCE AWARD HAS BEEN MADE IN THE PRESENT CASE, THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. SEE 26 COMP. GEN. 993, AND 28 ID. 401. HOWEVER, SINCE A DECISION APPEARS NECESSARY, THE DECISION IS BEING ADDRESSED TO YOU.

THE MALLORY AIR FORCE SPECIALIZED DEPOT, MEMPHIS, TENNESSEE, BY INVITATION NO. 40-087-51-135 REQUESTED BIDS - TO BE OPENED JANUARY 22, 1951 - FOR FURNISHING 12 ITEMS OF WOODEN BOXES FOR PACKING PURPOSES. RESPONSE THERETO, THE J.A. TAPP LUMBER COMPANY SUBMITTED A BID IN WHICH IT OFFERED TO FURNISH, AMONG OTHER THINGS, 500 BOXES OF DIMENSIONS 62" X 37" X 34" AT $19.46 EACH, ITEM NO. 1, AND 500 BOXES OF DIMENSIONS 47" X 37" X 34" AT $15.28 EACH, ITEM NO. 2. THE COMPANY'S BID WAS ACCEPTED AS TO ITEMS NOS. 1 AND 2, ON JANUARY 25, 1951.

BY LETTER DATED JANUARY 27, 1951, THE COMPANY ADVISED THE CONTRACTING OFFICE THAT AN ERROR HAD BEEN MADE IN ITS BID AS EVIDENCED BY THE WORK SHEETS ATTACHED THERETO. THE WORK SHEETS SHOW THE DIMENSIONS OF THE BOXES UNDER ITEMS NO. 1 AND 2 AND THE NUMBER OF SQUARE INCHES FOR THREE PIECES OF THE BOXES UNDER BOTH ITEMS. A NOTATION ON THE WORK SHEET INDICATES THAT AN ERROR WAS MADE IN FAILING TO MULTIPLY BY TWO THE NUMBER OF SQUARE INCHES IN EACH PIECE UNDER BOTH ITEMS.

THE BASIC QUESTION FOR DETERMINATION IS NOT WHETHER THE CONTRACTOR MADE AN ERROR IN ITS BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE ABSTRACT OF BIDS SHOWS THAT THE FIVE OTHER RESPONSIVE BIDS ON ITEMS NOS. 1 AND 2 WERE AS FOLLOWS:

ITEM NO. 1 ITEM NO. 2

$19.84 $16.94

21.72 17.46

24.70 20.06

26.38 23.19

29.37 27.04

THUS, THE COMPANY'S QUOTATIONS OF $19.46 AND $15.28 ON ITEMS NO. 1 AND 2, RESPECTIVELY, ARE NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED ON SAID ITEMS. THEREFORE, A COMPARISON OF THE BIDS WOULD NOT PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR THEREIN, AND THERE WAS NOTHING APPEARING ON THE FACE OF THE BID ITSELF TO CAUSE HIM TO SUSPECT THAT THE COMPANY HAD MADE A MISTAKE. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED EVIDENCE IN SUPPORT OF ITS ALLEGATION OF ERROR IT DOES NOT APPEAR THAT, PRIOR TO AWARD THE CONTRACTING OFFICER WAS AWARE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID PRICES. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE COMPANY'S 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. 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 RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF A BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C. CLS. 120, 163. IF THE BID WAS ERRONEOUSLY COMPUTED, AS ALLEGED, SUCH ERROR WAS DUE SOLELY TO THE COMPANY'S OWN NEGLIGENCE AND WAS NOT INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. HENCE, IT IS EVIDENT THAT THE ERROR WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 59 F. SUPP 505,507.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR RELEASING THE CONTRACTOR FROM THE TERMS OF CONTRACT NO. AF 40(087)471, OR FOR ALLOWING AN INCREASE IN THE CONTRACT PRICES.

THE PAPERS SUBMITTED WITH THE ENCLOSED COPY OF THE LETTER OF FEBRUARY 6, 1951, ARE FORWARDED HEREWITH.