B-111632, DEC 23, 1952

B-111632: Dec 23, 1952

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 18. REQUESTING A REPORT RELATIVE TO AN ERROR ALLEGED BY HUNZICKER BROTHERS TO HAVE BEEN MADE IN ITS VERBAL BID OF MARCH 25. THE VERBAL BID OF THE COMPANY WAS ACCEPTED AND PURCHASE ORDER NO. (34-601) 52-17728 DATED MARCH 25. WAS ISSUED REQUESTING THE COMPANY TO DELIVER THE CIRCUIT BREAKER UNITS. IT WAS STATED. IS A PART OF THE CIRCUIT BREAKER UNIT. IT WAS STATED. IS USED IN CONJUNCTION WITH THE NO. 1222099 CIRCUIT BREAKER. HUNZICKER BROTHERS FURNISHED (1) A COPY OF THE LETTER RECEIVED FROM ITS SUPPLIER IN WHICH THE ALLEGATION OF ERROR WAS MADE. WAS QUOTED FOR THE NO. THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF.

B-111632, DEC 23, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 18, 1952, WITH ENCLOSURES, FROM THE OFFICE OF THE DIRECTOR OF FINANCE, SUBMITTED IN RESPONSE TO LETTER DATED SEPTEMBER 9, 1952, REQUESTING A REPORT RELATIVE TO AN ERROR ALLEGED BY HUNZICKER BROTHERS TO HAVE BEEN MADE IN ITS VERBAL BID OF MARCH 25, 1952.

THE PURCHASING AND CONTRACTING OFFICE, TINKER AIR FORCE BASE, OKLAHOMA CITY, OKLAHOMA, BY TELEPHONE, REQUESTED HUNZICKER BROTHERS TO QUOTE A PRICE ON SIX OF THE PYLE-NATIONAL COMPANY'S MODEL NO. VKJ 339630-W-30 CIRCUIT BREAKERS, AND IN REPLY, HUNZICKER BROTHERS VERBALLY QUOTED A UNIT PRICE OF $62.82 EACH. THE VERBAL BID OF THE COMPANY WAS ACCEPTED AND PURCHASE ORDER NO. (34-601) 52-17728 DATED MARCH 25, 1952, WAS ISSUED REQUESTING THE COMPANY TO DELIVER THE CIRCUIT BREAKER UNITS.

BY LETTER DATED AUGUST 19, 1952, ADDRESSED TO THIS OFFICE, HUNZICKER BROTHERS REQUESTED THAT THE PURCHASE ORDER BE CANCELLED FOR THE REASON THAT ITS SUPPLIER, THE PYLE-NATIONAL COMPANY, HAD QUOTED TO IT THE INCORRECT LIST PRICE OF THE RECEPTACLE WHICH, IT WAS STATED, IS A PART OF THE CIRCUIT BREAKER UNIT. IN SAID LETTER HUNZICKER BROTHERS STATED THAT ITS SUPPLIER HAD ADVISED IT BY LETTER DATED APRIL 11, 1952, THAT THROUGH ERROR IT HAD QUOTED TO IT A LIST PRICE OF $44.70 EACH INSTEAD OF THE CORRECT LIST PRICE OF $104.70 EACH FOR THE RECEPTACLE WHICH, IT WAS STATED, IS USED IN CONJUNCTION WITH THE NO. 1222099 CIRCUIT BREAKER. SUPPORT OF ITS ALLEGATION OF ERROR, HUNZICKER BROTHERS FURNISHED (1) A COPY OF THE LETTER RECEIVED FROM ITS SUPPLIER IN WHICH THE ALLEGATION OF ERROR WAS MADE; (2) COPIES OF THE PRINTED PRICE LISTS AND DISCOUNT SHEET OF ITS SUPPLIER; AND (3) A COPY OF ITS SUPPLIER'S LETTER QUOTATION DATED FEBRUARY 6, 1952, IN WHICH A PRICE OF $44.70 EACH, LESS 40 PERCENT AND 20 PERCENT, WAS QUOTED FOR THE NO. VKJ-339630 W-30 RECEPTACLES. THE PRINTED PRICE LIST OF THE COMPANY'S SUPPLIER SPECIFIES FOR A NO. VKJ-339630 CIRCUIT BREAKER PYLET WITH A QUELARC RECEPTACLE BUT WITHOUT A CIRCUIT BREAKER, A LIST PRICE OF $104.70 EACH.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. IN FIRST INDORSEMENT DATED OCTOBER 3, 1952, THE DIRECTOR OF PROCUREMENT, TINKER AIR FORCE BASE, REPORTS THAT THE VERBAL BID OF HUNZICKER BROTHERS WAS THE ONLY BID RECEIVED FOR FURNISHING THE REQUIRED CIRCUIT BREAKER UNITS; HENCE, THERE WAS NO BASIS FOR COMPARISON OF PRICES AND, THEREFORE, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF ERROR IN THE BID OF THE COMPANY. SEE 26 COMP. GEN. 415. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED COPIES OF ITS SUPPLIER'S PRINTED PRICE LISTS, DISCOUNT SHEET AND QUOTATION, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID PRICE ON THE ITEM IN QUESTION. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH - NO ERROR HAVING BEEN ALLEGED BY THE COMPANY 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 RESPONSIBILITY FOR THE PREPARATION OF THE BID IN QUESTION WAS UPON THE COMPANY. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. ANY ERROR IN THE BID WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259.

MOREOVER, IT APPEARS THAT THE BID OF HUNZICKER BROTHERS ON THE CIRCUIT BREAKER UNITS WAS AS INTENDED AT THE TIME IT WAS SUBMITTED. SUCH ERROR AS MAY HAVE BEEN MADE IN THE MATTER APPEARS TO HAVE BEEN IN THE QUOTATION MADE TO THE COMPANY BY ITS SUPPLIER. IF THE COMPANY ELECTED TO SUBMIT A BID TO THE GOVERNMENT ON THE BASIS OF A QUOTATION RECEIVED FROM THE SUPPLIER WITHOUT DEFINITE KNOWLEDGE AS TO THE CORRECTNESS THEREOF, THAT IS A MATTER WITH WHICH THE GOVERNMENT IS NOT CONCERNED AND THE COMPANY MUST ASSUME THE CONSEQUENCE OF SUCH ERROR OR LOOK FOR ADJUSTMENT TO THE SUPPLIER WHICH SUBMITTED A QUOTATION FORMING THE BASIS OF THE COMPANY'S BID TO THE GOVERNMENT. SEE 6 COMP. GEN. 504; 18 ID. 28; AND 27 ID. 724.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR RELIEVING HUNZICKER BROTHERS FROM LIABILITY FOR FURNISHING THE CIRCUIT BREAKER UNITS AT ITS BID PRICE OR, IN THE EVENT OF ITS FAILURE TO DELIVER THE UNITS, TO RELIEVE IT FROM LIABILITY FOR ANY EXCESS COST INCURRED BY THE GOVERNMENT.

Sep 27, 2016

Sep 22, 2016

Sep 21, 2016

Sep 20, 2016

Looking for more? Browse all our products here