B-107083, APR 4, 1952

B-107083, APR 4, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 1, 1952, FILE REFERENCE AFAFN-1 167, WITH ENCLOSURES, SUBMITTED IN RESPONSE TO A LETTER DATED JANUARY 3, 1952, RELATIVE TO AN ERROR ALLEGED BY THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., TO HAVE BEEN MADE IN QUOTING ON ITEM 1 OF ITS BID ON WHICH UNNUMBERED CONTRACT DATED OCTOBER 4, 1951, IS BASED.

THE CONTRACTING OFFICER, 832D AF SPECIALIZED DEPOT, TOPEKA, KANSAS, BY INVITATION NO. (IFB) 14-604-52-311 REQUESTED BIDS - TO BE OPENED SEPTEMBER 26, 1951 - FOR FURNISHING 269 CALIPERS, OUTSIDE-MICROMETER 2 TO 3 IN "GRAD .0001" RATCHET STOP TYPE 1 SPEC. GGG-C-106, ITEM 1. IN RESPONSE TO THE INVITATION, THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., SUBMITTED A BID DATED SEPTEMBER 24, 1951, WHEREIN IT OFFERED TO FURNISH CALIPERS UNDER ITEM 1 AT A PRICE OF $8.889 EACH.

BY TELEGRAM DATED FEBRUARY 27, 1951, THE CORPORATION WAS REQUESTED TO FURNISH THE NAME OF THE MANUFACTURER AND PART NUMBER OF THE CALIPERS IT PROPOSED TO FURNISH AND IN REPLY THERETO, THE CORPORATION ADVISED THAT THE CALIPERS PROPOSED TO BE FURNISHED UNDER ITEM 1 WERE MANUFACTURED BY THE J.T. SLOCOMB COMPANY. THE BID OF THE CORPORATION WAS ACCEPTED AS TO ITEM 1 ON OCTOBER 4, 1951, AND PURCHASE ORDER NO. (14-604) 52-3763 WAS ISSUED REQUESTING DELIVERY OF THE CALIPERS.

IN A LETTER DATED OCTOBER 17, 1951, THE CORPORATION CONFIRMED ITS ORAL ALLEGATION OF THE PREVIOUS DAY THAT AN ERROR HAD BEEN MADE IN ITS BID AND STATED THAT ONE OF ITS STENOGRAPHERS IN FILLING OUT THE PURCHASE INQUIRY WHICH WAS SENT TO ITS SUPPLIER, INADVERTENTLY WROTE .001 INSTEAD OF .0001 AS THE GRADUATION OF THE CALIPERS; THAT THE ERROR WAS DISCOVERED WHEN ITS SUPPLIER ADVISED THAT ITS QUOTATION COVERED CALIPERS WITH A GRADUATION OF .001 AND, ALSO, THAT THE PRICE FOR THE .0001 GRADUATION WAS $13.75 LESS 25 PERCENT ($10.3125). THEREFORE, THE CORPORATION REQUESTED THAT THE UNIT PRICE OF THE CALIPERS BE INCREASED BY $1.825, MAKING THE REVISED UNIT PRICE $10.714. IN REPLY THERETO, THE CONTRACTING OFFICER ADVISED THE CORPORATION BY LETTER DATED OCTOBER 22, 1951, THAT HE WAS WITHOUT AUTHORITY TO INCREASE THE PRICE OF THE CALIPERS. BY LETTER DATED OCTOBER 24, 1951, THE CORPORATION RETURNED PURCHASE ORDER NO. (14-604) 52-3763 AND REQUESTED THAT SAID ORDER BE CANCELLED. THE CONTRACTING OFFICER RETURNED THE PURCHASE ORDER TO THE CORPORATION BY LETTER DATED OCTOBER 30, 1951, AND ADVISED IT THAT DELIVERY OF THE CALIPERS WOULD BE REQUIRED; THAT HE WAS NOT PLACED ON NOTICE OF THE PROBABILITY OF ERROR IN ITS BID; AND THAT, MOREOVER, IT WAS GIVEN AN OPPORTUNITY TO REEXAMINE ITS BID UPON BEING REQUESTED TO FURNISH THE MANUFACTURER'S NAME AND PART NUMBER OF THE CALIPERS WHICH WERE PROPOSED TO BE FURNISHED.

IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED WITH LETTER DATED DECEMBER 15, 1951, A PHOTOSTATIC COPY OF THE PURCHASE INQUIRY SENT TO ITS SUPPLIER PRIOR TO THE SUBMISSION OF ITS BID. SAID PURCHASE INQUIRY SHOWS THAT THE CORPORATION REQUESTED A PRICE ON 269 CALIPERS WITH A GRADUATION OF ".001" AND THAT THE SUPPLIER QUOTED A PRICE THEREON OF $11.25 EACH LESS 25 PERCENT.

THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT THE CALIPERS UNDER ITEM 1 WERE REQUIRED TO HAVE A GRADUATION OF .0001. 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 THE CORPORATION REQUESTED A QUOTATION FROM ITS SUPPLIER ON A CALIPER WITH A GRADUATION OF .001, AS INDICATED, AND BASED ITS BID TO THE GOVERNMENT THEREON, SUCH ERROR WAS DUE SOLELY TO LACK OF PROPER CARE ON THE PART OF THE CORPORATION AND NOT TO ANY FAILURE OF THE GOVERNMENT TO FURNISH SUFFICIENT INFORMATION AS TO THE EXACT TYPE OF CALIPERS REQUIRED. SEE GRYMES V. SANDERS ET AL, 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION TO RELIEF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249; SALIGMAN ET AL V. UNITED STATES, 56 F. SUPP. 505; 20 COMP. GEN. 652; AND 26 ID. 415.

MOREOVER, THERE WAS NOTHING ON THE FACE OF THE BID OF THE CORPORATION TO INDICATE THAT THE PRICE QUOTED THEREIN FOR ITEM 1 WAS NOT AS INTENDED. THE ABSTRACT OF BIDS SHOWS THAT THE THREE OTHER RESPONSIVE BIDS WERE $10.9395, $11.90 AND $12.35 PER CALIPER. THUS, THE DIFFERENCE BETWEEN THE BID OF THE CORPORATION IN THE AMOUNT OF $8.889 AND THE OTHER BIDS IS NOT SO GREAT AS TO JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER WAS - OR SHOULD HAVE BEEN - ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION. ALTHOUGH, AFTER AWARD, THE CORPORATION FURNISHED A COPY OF THE PURCHASE INQUIRY WHICH IT HAD SENT TO ITS SUPPLIER, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE CORPORATION IN COMPUTING ITS BID PRICE. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, THERE WOULD APPEAR TO BE NO BASIS UPON WHICH IT COULD BE HELD THAT THE ACCEPTANCE OF THE BID DID NOT CONSUMATE A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, IN VIEW OF THE FACTS OF RECORD AND THE LAW APPLICABLE THERETO, I FIND NO LEGAL BASIS FOR AUTHORIZING AN INCREASE IN THE PRICE OF THE CALIPERS, AS REQUESTED BY THE CORPORATION.