B-118486, MAY 12, 1954

B-118486: May 12, 1954

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED APRIL 7. RELATIVE TO AN ERROR ALLEGED BY THE SPEC-KEM COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. WAS BASED. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS UPON THE BIDDER. IT IS CLEAR FROM THE EVIDENCE OF RECORD THAT THE ERROR HERE MADE IN COMPUTING THE COMPANY'S BID PRICE WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE COMPANY AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR WAS UNILATERAL. THE REQUEST FOR VERIFICATION OF THE BID WAS SUFFICIENT NOTICE TO THE COMPANY THAT ERROR THEREIN WAS SUSPECTED BY THE CONTRACTING OFFICER. WHICH IS DISCLOSED BY THE RECORD.

B-118486, MAY 12, 1954

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED APRIL 7, 1954, WITH ENCLOSURES, FROM THE CHIEF, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FURNISHING THE REPORT REQUESTED IN OFFICE LETTER OF FEBRUARY 2, 1954, RELATIVE TO AN ERROR ALLEGED BY THE SPEC-KEM COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. AF 08(602)-200 DATED JUNE 6, 1953, WAS BASED.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C. CLS. 120, 163. IT IS CLEAR FROM THE EVIDENCE OF RECORD THAT THE ERROR HERE MADE IN COMPUTING THE COMPANY'S BID PRICE WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE COMPANY AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR WAS UNILATERAL, NOT MUTUAL, AND, THEREFORE, DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE 20 COMP. GEN. 652, 658; 26 ID. 415; 27 ID. 718, AND AUTHORITIES THEREIN CITED.

THE REQUEST FOR VERIFICATION OF THE BID WAS SUFFICIENT NOTICE TO THE COMPANY THAT ERROR THEREIN WAS SUSPECTED BY THE CONTRACTING OFFICER. AFTER RECEIVING THE UNEQUIVOCAL VERIFICATION THEREOF, WHICH IS DISCLOSED BY THE RECORD, THE CONTRACTING OFFICER WAS JUSTIFIED IN ACCEPTING THE COMPANY'S BID - THE BID BEING LOWEST RECEIVED. SEE ALABAMA SHIRT & TROUSER CO. V. UNITED STATES, 121 C. CLS. 313. THE FACT THAT THE BID WAS NOT ACCEPTED UNTIL AFTER THE COMPANY WAS AFFORDED AN OPPORTUNITY TO, AND DID, VERIFY ITS BID PRICE PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF AN ERROR ON THE COMPANY'S PART. SEE 27 COMP. GEN. 17, 19 AND THE AUTHORITIES CITED THEREIN. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE COMPANY'S 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. 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, I FIND NO LEGAL BASIS FOR AUTHORIZING PAYMENT TO THE SPEC- KEM COMPANY OF ANY AMOUNT IN EXCESS OF THE PRICE FIXED IN THE ABOVE-CITED CONTRACT.