B-110944, SEP 29, 1952

B-110944, SEP 29, 1952

PRECIS-UNAVAILABLE

THE BABCOCK & WILCOX COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1952, REQUESTING RECONSIDERATION OF YOUR CLAIM, NOW STATED IN THE SUM OF $475.58, DISALLOWED BY OFFICE SETTLEMENT DATED MAY 29, 1952, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE FOR A QUANTITY OF PIPE FURNISHED THE DEPARTMENT OF THE ARMY, PINE BLUFF ARSENAL, UNDER PURCHASE ORDER NO. 1- 3644.

THE RECORD DISCLOSES THAT IN RESPONSE TO A REQUEST FROM THE PINE BLUFF ARSENAL YOU QUOTED THE UNIT PRICES LISTED IN YOUR LETTER OF JUNE 5, 1951, ON CERTAIN SPECIFIED MATERIEL, PURSUANT TO WHICH A PURCHASE ORDER NO. 1- 3644 WAS ISSUED UNDER DATE OF JUNE 27, 1951. THEREAFTER, YOU DELIVERED THE APPROXIMATE QUANTITIES OF THE VARIOUS SIZES OF PIPE ORDERED BUT ALLEGED THAT THE PRICES LISTED IN YOUR OFFER OF JUNE 5, 1951, WERE IN ERROR IN THAT YOU INADVERTENTLY QUOTED ON PIPE OF LIGHTER WALLS, IDENTIFIED IN YOUR PUBLISHED PRICE LISTS AS "SCHEDULE 10", WHEREAS THE PIPE FURNISHED WAS A HEAVIER TYPE ("SCHEDULE 40"). YOU NOW CONTEND THAT ON THE BASIS OF THE RELATED FACTS YOU SHOULD BE PAID THE ADDITIONAL AMOUNT CLAIMED, PARTICULARLY IN VIEW OF THE REGULATION ISSUED BY THE SECRETARY OF DEFENSE UNDER DATE OF FEBRUARY 21, 1951, PURSUANT TO TITLE II OF THE FIRST WAR POWERS ACT OF 1941, 50 U.S.C. APP. 611, AS AMENDED, AND EXECUTIVE ORDER NO. 10210, DATED FEBRUARY 2, 1951.

THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE ERROR THEREIN, AND SINCE NO OTHER BIDS WERE RECEIVED THE CONTRACTING OFFICER WAS NOT AFFORDED THE OPPORTUNITY TO MAKE A COMPARISON OF PRICES WHICH OTHERWISE MIGHT HAVE INDICATED THE POSSIBILITY OF ERROR IN YOUR OFFER. NOT BEING AWARE OF YOUR ALLEGED MISTAKE, THE CONTRACTING OFFICER ACCEPTED YOUR BID IN GOOD FAITH, RESULTING IN A 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 & REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE ERROR STATED BY YOU TO HAVE BEEN MADE WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED BY THE GOVERNMENT. IN THAT CONNECTION THE COURTS HAVE HELD REPEATEDLY THAT A UNILATERAL MISTAKE SUCH AS HERE INVOLVED AFFORDS NO BASIS FOR RELIEF. OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249; SALIGMAN ET AL V. UNITED STATES, 56 F. SUPP. 505. MOREOVER, THE QUESTION IS NOT WHETHER YOU MADE AN ERROR IN YOUR QUOTATION BUT WHETHER A LEGAL AND VALID CONTRACT WAS FORMED BY THE ACCEPTANCE OF YOUR BID. YOUR OFFER WAS ACCEPTED IN GOOD FAITH AND NO ERROR WAS ALLEGED UNTIL THEREAFTER. SUCH ACCEPTANCE CONSUMMATED A VALID OBLIGATION IN WHICH CERTAIN RIGHTS VESTED IN THE GOVERNMENT WHICH NO OFFICER OR AGENT OF THE UNITED STATES MAY WAIVE OR GIVE AWAY. BAUSCH & LAMB OPTICAL CO. V. UNITED STATES, 78 C. CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645.

IN REGARD TO YOUR REFERENCE TO THE CITED REGULATION OF THE SECRETARY OF DEFENSE, ISSUED PURSUANT TO THE FIRST WAR POWERS ACT, SUPRA, YOU ARE ADVISED THAT THE SAID ACT CONFERRED NO AUTHORITY UPON THE GENERAL ACCOUNTING OFFICE TO ALLOW CLAIMS UNDER CONTRACTS WITHOUT REGARD TO THE TERMS AND CONDITIONS OF THE RESPECTIVE AGREEMENTS OR THE LAW APPLICABLE THERETO, OR TO MODIFY THE PRICE THEREOF AGREED TO BY THE PARTIES. THE PROVISIONS OF THE ACT AND THE ORDERS AND REGULATIONS ISSUED THEREUNDER VEST AUTHORITY IN THE VARIOUS ADMINISTRATIVE AGENCIES DESIGNATED, AND RELATE ONLY TO THE PROCUREMENT OF MATERIALS AND SUPPLIES, THE PURCHASE OF WHICH IS "BASED ON A FINDING THAT THE NATIONAL DEFENSE WILL BE FACILITATED THEREBY." THERE APPEARS TO HAVE BEEN NO SUCH FINDING IN THIS CASE OR A DETERMINATION BY THE CONTRACTING OFFICER, PRIOR TO THE CONTRACT, THAT THE CONTRACT WAS EXECUTED IN FURTHERANCE OF "THE NATIONAL DEFENSE", AS CONTEMPLATED BY THE AMENDATORY ACT OF JANUARY 12, 1951, 64 STAT. 1257. MOREOVER, SINCE THE CONTRACT HAS BEEN COMPLETED, IT WOULD APPEAR THAT THE ADMINISTRATIVE OFFICE IS PRECLUDED FROM TAKING ANY ACTION TO AMEND THE AGREEMENT PURSUANT TO THE ACT, AS IT HAS BEEN HELD CONSISTENTLY THAT THE PROVISONS OF THE BASIC STATUTE HAVE NO APPLICATION TO COMPLETED CONTRACTS.

IN VIEW OF THE FOREGOING, THE ACTION TAKEN IN OFFICE SETTLEMENT OF MAY 29, 1952, IS SUSTAINED.