B-114994, MAY 11, 1953

B-114994, MAY 11, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER OF APRIL 27, 1953, REFERENCE PRS-4 IFB 04- 606-S-53-24, WITH ENCLOSURES, FROM LAURENCE D. BEIK, CONTRACTING OFFICER, SACRAMENTO AIR MATERIEL AREA, MCCLELLAN AIR FORCE BASE, MCCLELLAN, CALIFORNIA, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR ALLEGED BY E. J. ANDERSON D/B/A, B & A DISTRIBUTING COMPANY, TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. AF 04(606S-92 WAS AWARDED. THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION IN THIS CASE; HOWEVER, SINCE A DECISION APPEARS NECESSARY, IT IS BEING ADDRESSED TO YOU.

BY INVITATION NO. 04-606-S-53-24, DATED MARCH 30, 1953, THE SACRAMENTO AIR MATERIEL AREA REQUESTED BIDS - TO BE OPENED APRIL 14, 1953 - FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS MATERIALS AS DESCRIBED UNDER LOTS 1 TO 101. THE INVITATION REQUIRED A BID DEPOSIT EQUAL TO 20 PERCENT OF THE AMOUNT OF THE BID. LOT 79 COVERS AN ESTIMATED QUANTITY OF 3910 POUNDS OF "ASSORTED PNEUMATIC LIFE RAFT RESIDUE, 1 AND 5 MAN SIZE MIXED, RUBBERIZED CANVAS CONSTRUCTION, SOME CARRYING BAGS INCLUDED, APPROXIMATELY 233 EA. SALVAGE." BIDS WERE REQUESTED ON THE BASIS OF A POUND AS THE UNIT. IN RESPONSE TO THE INVITATION, B & A DISTRIBUTING COMPANY SUBMITTED A BID WHEREIN IT OFFERED TO PURCHASE LOT 79 AT $1.65 PER POUND AND EXTENDED THE TOTAL FOR THE ESTIMATED QUANAS $6451.50. THE BID WAS ACCOMPANIED BY A BID DEPOSIT OF $1291. AN ABSTRACT OF THE BIDS ON LOT 79 SHOWS THAT THE 12 OTHER BIDS RANGED FROM $0.0511 TO $0.71 PER POUND.

THE CONTRACTING OFFICER HAS REPORTED THAT HE CONSIDERED THE BID TO BE "OUT OF LINE" AND, ON APRIL 17, 1953, TELEPHONED B & A DISTRIBUTING COMPANY FOR VERIFICATION OF ITS BID; THAT MR. ANDERSON CONFIRMED THE BID OF $1.65 PER POUND AS CORRECT; AND THAT, ON THE BASIS OF SUCH VERIFICATION, AWARD OF LOT 79 WAS MADE TO B & A DISTRIBUTING COMPANY AS THE HIGHEST BIDDER. A COPY OF THE NOTICE OF AWARD HAS NOT BEEN FURNISHED TO THIS OFFICE AND IT IS ASSUMED THAT VERBAL NOTICE WAS GIVEN DURING THE TELEPHONE CONVERSATION REFERRED TO ABOVE. THE B & A DISTRIBUTING COMPANY ALLEGED ERROR IN ITS BID BY TELEGRAM DATED APRIL 17, 1953. THE COMPANY STATED THAT IT HAD MADE AN ERROR IN THE EXTENSION OF THE TOTAL FOR LOT 79 SINCE THE "PRICE BID PER POUND WAS 65 CENTS." IN RESPONSE TO REQUEST OF THE CONTRACTING OFFICER FOR EVIDENCE OF THE ALLEGED MISTAKE, BY LETTER OF APRIL 22, 1953, E. J. ANDERSON ASSERTED THAT HE DIRECTED THE BOOKKEEPER FOR THE COMPANY TO PREPARE THE BID ON THE BASIS OF $0.65 PER POUND; THAT THE BOOKKEEPER MISUNDERSTOOD THE PRICE TO BE $1.65 PER POUND AND PREPARED THE BID AND THE CHECK COVERING THE BID DEPOSIT ON SUCH BASIS; AND THAT HE SIGNED THE BID AND THE BID DEPOSIT CHECK WITHOUT VERIFICATION THEREOF. EXPLANATION WAS FURNISHED RELATIVE TO THE VERIFICATION OF THE BID.

THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AS TO THE MATERIAL THE GOVERNMENT WAS OFFERING FOR SALE. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS IN THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. CONSEQUENTLY, IF THE COMPANY MADE AN ERROR IN ITS BID, AS ALLEGED, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE NEGLIGENCE OR OVERSIGHT OF THE COMPANY AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259 AND SALIGMAN ET. AL., V. UNITED STATES, 56 F. SUPP. 505, 507.

MOREOVER, THE COMPANY WAS REQUESTED TO VERIFY ITS BID AND E. J. ANDERSON, OWNER, CONFIRMED THE BID PRICE. AFTER SUCH VERIFICATION, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. SEE CARNEGIE STEEL COMPANY V. CONNELLY 89 N.J.L. 1, 97 A. 774; AND SHRIMPTON MFG. COMPANY V. BRIN, 59 TEX. CIV. APP. 352, 125 S. W. 942. THE FACT THAT THE ACCEPTANCE OF THE BID WAS NOT MADE UNTIL AFTER THE COMPANY HAD BEEN GIVEN AN OPPORTUNITY TO VERIFY ITS BID PRICE PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF THE COMPANY. SEE 10 COMP. GEN. 388; 14 ID. 453; AND 18 ID. 942. ALTHOUGH, AFTER AWARD, THE COMPANY ALLEGED ERROR AND EXPLAINED THE BASIS THEREFOR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER WAS ON NOTICE OF THE ALLEGED ERROR. THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES SHOWN 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, AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, ON THE BASIS OF THE FACTS NOW OF RECORD AND THE LAW APPLICABLE THERETO, I FIND NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN THE COMPANY'S ACCEPTED BID.

THE PAPERS RECEIVED WITH THE LETTER FROM THE CONTRACTING OFFICER ARE FORWARDED HEREWITH.