B-121278, OCT 6, 1954

B-121278: Oct 6, 1954

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PRECIS-UNAVAILABLE FOAMADE INDUSTRIES: REFERENCE IS MADE TO YOUR LETTER OF JULY 1. YOU CONTEND THAT WHILE YOU WERE REQUESTED TO. 5 AND 18 YOU WERE NEVER REQUESTED TO CONFIRM YOUR BID ON ITEM 10. IT IS CONTENDED. THAT YOUR LOW PRICE ON ITEM 10 WAS SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE THAT SUCH PRICE WAS IN ERROR. FOR WHICH A PRICE OF $0.35 PER UNIT WAS PAID. WILL PROVE THAT YOUR PRICE OF $0.09 UNDER THE PRESENT CONTRACT WAS IN ERROR. IT APPEARS THAT CONTRACT DA-15564 WAS ENTERED INTO AFTER THE PRESENT CONTRACT. THERE APPARENTLY WAS NOTHING IN YOUR BID OF $0.09 PER UNIT ON ITEM 10 TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID SINCE THE NEXT LOWEST BID WAS $0.12 PER UNIT.

B-121278, OCT 6, 1954

PRECIS-UNAVAILABLE

FOAMADE INDUSTRIES:

REFERENCE IS MADE TO YOUR LETTER OF JULY 1, 1954, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 28, 1954, WHICH DISALLOWED YOUR CLAIM FOR $560, NOW STATED TO BE $695, ALLEGED TO BE DUE BY REASON OF AN ERROR IN BID ON ITEM 10 OF CONTRACT DA-36-038-ORD-15154, DATED MAY 13, 1953.

YOU CONTEND THAT WHILE YOU WERE REQUESTED TO, AND DID, VERIFY YOUR PRICES ON ITEMS 3, 4, 5 AND 18 YOU WERE NEVER REQUESTED TO CONFIRM YOUR BID ON ITEM 10. ALSO, IT IS CONTENDED, IN EFFECT, THAT YOUR LOW PRICE ON ITEM 10 WAS SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE THAT SUCH PRICE WAS IN ERROR, AND THAT A REVIEW OF CONTRACT DA-15564, COVERING AN IDENTICAL ITEM, FOR WHICH A PRICE OF $0.35 PER UNIT WAS PAID, WILL PROVE THAT YOUR PRICE OF $0.09 UNDER THE PRESENT CONTRACT WAS IN ERROR.

IT APPEARS THAT CONTRACT DA-15564 WAS ENTERED INTO AFTER THE PRESENT CONTRACT. IN ANY EVENT, THE CONTRACTING OFFICER, IN EVALUATING BIDS, WOULD NOT NECESSARILY BE REQUIRED TO CONSIDER OTHER THAN THE BIDS BEFORE HIM IN MAKING THE AWARD. THERE APPARENTLY WAS NOTHING IN YOUR BID OF $0.09 PER UNIT ON ITEM 10 TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID SINCE THE NEXT LOWEST BID WAS $0.12 PER UNIT. THE DIFFERENCE IN THE BIDS IS NOT SUFFICIENT TO JUSTIFY THE CONCLUSION THAT HE SHOULD HAVE BEEN ON NOTICE OF ANY ERROR. HOWEVER, THE CONTRACTING OFFICER HAS REPORTED THAT, DURING A PRE-AWARD SURVEY, YOU WERE REQUESTED TO CONFIRM PRICES ON ALL ITEMS AND THAT "CONTRACTOR CONFIRMED SAME WITH NO EXCEPTION."

THUS, THE RECORD SHOWS THAT THE BID ON ITEM 10 WAS ACCEPTED BY THE CONTRACTING OFFICER IN ENTIRE GOOD FAITH NO NOTICE OF ANY ERROR HAVING BEEN GIVEN HIM AS TO ANY ERROR IN THE BID UNTIL LONG AFTER THE ACCEPTANCE. THE ACCEPTANCE, UNDER SUCH CIRCUMSTANCES, CONSUMMATED A BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SINCE YOU HAVE BEEN PAID THE CONTRACT PRICE FOR ITEM 10 THERE IS NO LEGAL BASIS FOR PAYING ANY ADDITIONAL AMOUNT.

ACCORDINGLY, THE DISALLOWANCE OF JUNE 28, 1954, IS SUSTAINED.