B-104540, OCT 8, 1951

B-104540: Oct 8, 1951

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED AUGUST 30. BY WHICH THERE WAS FORWARDED. RELATIVE TO AN ERROR ALLEGED TO HAVE BEEN MADE ON ITEMS NOS. 12. AF 33(038)-24433 IS BASED. THE BID WAS ACCEPTED AND PURCHASE ORDER FOR THE AFORESAID FOUR ITEMS WAS ISSUED ON APRIL 18. THE COMPANY IN ACKNOWLEDGING RECEIPT OF THE CONTRACT ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT THE PRICES QUOTED THEREIN WERE BASED ON FURNISHING COMMERCIAL DOMESTIC PACKING RATHER THAN DOMESTIC PACKAGING IN ACCORDANCE WITH SPECIFICATION NO. THE COMPANY REITERATED ITS PREVIOUS ALLEGATION OF ERROR AS TO PACKING AND STATED THAT IF ITS BID HAD BEEN BASED ON PACKING IN ACCORDANCE WITH THE SPECIFICATIONS ITS UNIT BID PRICES WOULD HAVE BEEN $0.51 EACH ON ITEM NO. 12.

B-104540, OCT 8, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED AUGUST 30, 1951, WITH ENCLOSURES, FROM THE DIRECTOR OF FINANCE, REPLYING TO OFFICE LETTER OF JULY 18, 1951, BY WHICH THERE WAS FORWARDED, WITH A REQUEST FOR A REPORT IN THE MATTER, A LETTER DATED MAY 29, 1951, FROM THE TORRINGTON COMPANY, TORRINGTON, CONNECTICUT, RELATIVE TO AN ERROR ALLEGED TO HAVE BEEN MADE ON ITEMS NOS. 12, 13, 14, AND 15 OF ITS BID UPON WHICH CONTRACT NO. AF 33(038)-24433 IS BASED.

THE AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, BY INVITATION DATED MARCH 14, 1951, REQUESTED BIDS FOR FURNISHING VARIOUS ITEMS OF BALL BEARINGS AND NEEDLE BEARINGS. IN RESPONSE THERETO, THE TORRINGTON COMPANY SUBMITTED A BID IN WHICH IT OFFERED TO FURNISH 500 NEEDLE BEARINGS UNDER ITEM NO. 12 AT $0.44 EACH, 10,500 NEEDLE BEARINGS UNDER ITEM NO. 13 AT $0.72 EACH, 800 NEEDLE BEARINGS UNDER ITEM NO. 14 AT $0.78 EACH, AND 500 NEEDLE BEARINGS UNDER ITEM NO. 15 AT $3.31 EACH - A TOTAL BID PRICE OF $10,059. THE BID WAS ACCEPTED AND PURCHASE ORDER FOR THE AFORESAID FOUR ITEMS WAS ISSUED ON APRIL 18, 1951, CONSUMMATING THE ABOVE-CITED CONTRACT.

BY LETTER OF MAY 21, 1951, THE COMPANY IN ACKNOWLEDGING RECEIPT OF THE CONTRACT ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT THE PRICES QUOTED THEREIN WERE BASED ON FURNISHING COMMERCIAL DOMESTIC PACKING RATHER THAN DOMESTIC PACKAGING IN ACCORDANCE WITH SPECIFICATION NO. AN-P-36A, AS EXPRESSLY REQUIRED, AND, THEREFORE, IT REQUESTED THAT THE CONTRACT PRICE BE INCREASED FROM $10,059 TO $10,725. IN REPLY THERETO, THE CONTRACTING OFFICER, BY LETTER DATED MAY 24, 1951, ADVISED THE CONTRACTOR THAT HIS OFFICE LACKED THE AUTHORITY TO INCREASE THE CONTRACT PRICE BUT THAT IT COULD FILE A CLAIM FOR AN ADDITIONAL AMOUNT WITH THE GENERAL ACCOUNTING OFFICE, CLAIMS DIVISION.

IN THE REFERRED-TO LETTER OF MAY 29, 1951, THE COMPANY REITERATED ITS PREVIOUS ALLEGATION OF ERROR AS TO PACKING AND STATED THAT IF ITS BID HAD BEEN BASED ON PACKING IN ACCORDANCE WITH THE SPECIFICATIONS ITS UNIT BID PRICES WOULD HAVE BEEN $0.51 EACH ON ITEM NO. 12, $0.77 EACH ON ITEM NO. 13, $0.85 EACH ON ITEM NO. 14, AND $3.41 EACH ON ITEM NO. 15. BY LETTER DATED JULY 24, 1951, THE COMPANY FORWARDED A COPY OF ITS PRINTED SCHEDULE OF ITS BEARING PRICES EFFECTIVE DECEMBER 7, 1950, AND SET FORTH IN THE LETTER A SCHEDULE OF PRICES OF PACKAGING THE BEARINGS STATED TO BE CHARGED BY ITS SUB-CONTRACTOR. THE NET LIST PRICES SHOWN IN ITS SAID PRICE SCHEDULE ARE THE SAME AS THOSE SUBMITTED IN ITS BID ON ITEMS NOS. 12, 13 AND 14. THE PRICE OF THE BEARING CALLED FOR UNDER ITEM NO. 15 IS NOT SHOWN IN THE PRICE SCHEDULE. ALSO, THE CONTRACTOR STATED IN ITS LETTER THAT THE PRICES AS LISTED IN THE SCHEDULE AND QUOTED IN THE BID INCLUDE THE COST OF COMMERCIAL DOMESTIC PACKING ONLY AND NOT THE COST OF PACKAGING AS REQUIRED.

THE BASIC QUESTION HERE FOR DETERMINATION IS NOT WHETHER THE COMPANY MADE A MISTAKE IN THE PREPARATION OF ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. IN A REPORT DATED AUGUST 8, 1951, THE CONTRACTING OFFICER STATED THAT PRIOR TO AWARD HE HAD NO NOTICE OF ERROR AND THAT THERE WAS NO REASON TO SUSPECT THAT THE COMPANY HAD MADE AN ERROR IN ITS BID. NO ERROR WAS APPARENT ON THE FACE OF THE BID AND SINCE THE BID WAS THE ONLY ONE RECEIVED ON ITEMS NOS. 12, 13, 14 AND 15, A COMPARISON WITH OTHER BIDS WAS NOT POSSIBLE; HENCE, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED ITS PRICE LIST IN SUPPORT OF ITS ALLEGATION THAT THE PRICES QUOTED COVERED THE SUPPLIES IN COMMERCIAL PACKING IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER WAS AWARE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID. THUS, 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.

MOREOVER, THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT AS TO THE TYPE OF PACKAGING THAT WAS REQUIRED. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. IF, AS STATED IN ITS LETTER OF JULY 24, 1951, THE CONTRACTOR SUBMITTED ITS BID ON THE BASIS OF PACKAGING THE BEARINGS IN A MANNER OTHER THAN SPECIFIED IN THE INVITATION, SUCH MISTAKE WAS DUE SOLELY TO LACK OF PROPER CARE ON THE PART OF THE CONTRACTOR AND NOT TO ANY FAILURE ON THE PART OF THE GOVERNMENT TO FURNISH SUFFICIENT INFORMATION WITH RESPECT TO THE TYPE OF PACKAGING REQUIRED. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. IT IS EVIDENT THAT ANY ERROR THAT WAS MADE IN THE BID 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, 56 F. SUPP. 505, 507.

ON THE BASIS OF THE FACTS OF RECORD, THERE APPEARS NO LEGAL BASIS FOR AUTHORIZING ANY INCREASE IN THE CONTRACT PRICE OF THE NEEDLE BEARINGS.