B-121295, OCT 1, 1954

B-121295: Oct 1, 1954

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SECRETARY: I HAVE YOUR LETTER OF SEPTEMBER 3. TO HAVE BEEN MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT. IS BASED. REFERENCE IS MADE IN YOUR LETTER TO AN ERROR ON THE GOVERNMENT'S PART DUE TO ITS FAILURE. THERE WAS NOTHING ON THE FACE OF THE CONTRACTOR'S BID TO INDICATE THAT IT WAS NOT AS INTENDED. THE CORPORATION EXPRESSLY STATED IN ITS BID THAT THE OSCILLOSCOPE IT PROPOSED TO FURNISH WAS IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS. THE CONTRACTING OFFICER WAS ENTITLED TO ASSUME THAT THE OSCILLOSCOPE SO OFFERED BY THE CORPORATION WOULD BE EQUIPPED WITH THE TYPE OF MOBILE LAB. ITS FAILURE TO FURNISH WITH THE BID SEPARATE LITERATURE PERTAINING TO THE MOBILE STAND IS OF NO SIGNIFICANCE.

B-121295, OCT 1, 1954

PRECIS-UNAVAILABLE

MR. SECRETARY:

I HAVE YOUR LETTER OF SEPTEMBER 3, 1954, WITH ENCLOSURES, RELATIVE TO AN ERROR ALLEGED BY TEKTRONIX, INC., TO HAVE BEEN MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT, PURCHASE ORDER NO. 67313, DATED JUNE 16, 1954, IS BASED. ALSO, REFERENCE IS MADE IN YOUR LETTER TO AN ERROR ON THE GOVERNMENT'S PART DUE TO ITS FAILURE, THROUGH INADVERTENCE, TO STATE THE FULL CONTRACT PRICE IN THE PURCHASE ORDER.

THERE WAS NOTHING ON THE FACE OF THE CONTRACTOR'S BID TO INDICATE THAT IT WAS NOT AS INTENDED. ACCORDING TO THE CONTRACTING OFFICER'S FINDINGS OF FACT DATED AUGUST 6, 1954, HE HAD NO NOTICE OF, OR REASON TO SUSPECT, ERROR IN THE CORPORATION'S BID PRIOR TO ITS ACCEPTANCE. THE GOVERNMENT'S SPECIFICATIONS PROVIDE THAT THE OSCILLOSCOPE CALLED FOR THEREIN SHALL BE COMPLETE WITH MOBILE LAB. STAND, "TEKTRONIK" TYPE 500, OR EQUAL, AND A COPY OF THE SPECIFICATIONS ACCOMPANIED THE BID AS A PART THEREOF. THE CORPORATION EXPRESSLY STATED IN ITS BID THAT THE OSCILLOSCOPE IT PROPOSED TO FURNISH WAS IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS. IN VIEW THEREOF, THE CONTRACTING OFFICER WAS ENTITLED TO ASSUME THAT THE OSCILLOSCOPE SO OFFERED BY THE CORPORATION WOULD BE EQUIPPED WITH THE TYPE OF MOBILE LAB. STAND DESIGNATED AND STATED IN THE SPECIFICATIONS TO BE REQUIRED. ITS FAILURE TO FURNISH WITH THE BID SEPARATE LITERATURE PERTAINING TO THE MOBILE STAND IS OF NO SIGNIFICANCE, SINCE THE REQUEST FOR DESCRIPTIVE LITERATURE WAS INSERTED IN THE INVITATION SOLELY FOR THE BENEFIT AND CONVENIENCE OF THE GOVERNMENT. MOREOVER, IN THE ABSENCE OF AN OFFER OF A STAND OTHER THAN THE TYPE AND WITH TRADE NAME DESIGNATED IN THE SPECIFICATIONS, LITTLE PURPOSE COULD BE SERVED BY SUCH LITERATURE.

WHERE ONLY ONE RESPONSIVE BID IS RECEIVED - AS IN THE PRESENT CASE - THERE IS, OF COURSE, NO BASIS FOR COMPARISON OF BIDS AND SINCE ERROR IS NOT APPARENT ON THE FACE OF THE CONTRACTOR'S BID, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR THEREIN. SEE 26 COMP. GEN. 415. ALTHOUGH, AFTER AWARD, THE CONTRACTOR ALLEGED THAT AN ERROR WAS MADE IN THE BID AND, BY ITS LETTER, AND ACCOMPANYING LITERATURE, EXPLAINED HOW THE ERROR WAS MADE, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF ANY ERROR IN THE BID. THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH. ERROR WAS NOT 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 CO. V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR RELEASING TEKTRONIX, INC., FROM ITS OBLIGATION TO FURNISH, F.O.B. DESTINATION, THE OSCILLOSCOPE EQUIPPED WITH A MOBILE LAB. STAND, AT THE ACCEPTED BID PRICE. HOWEVER, SINCE THE ACCEPTANCE INADVERTENTLY OMITTED TRANSPORTATION CHARGES OF $15.14, INCLUDED IN THE BID, THE CONTRACT PRICE SHOULD BE ADJUSTED IN THAT AMOUNT.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S FINDINGS OF FACT DATED AUGUST 6, 1954, AND ONE OF THE DUPLICATE SETS OF THE OTHER PERTINENT DOCUMENTS AND CORRESPONDENCE, ARE RETURNED HEREWITH.