B-121347, OCT 21, 1954

B-121347, OCT 21, 1954

PRECIS-UNAVAILABLE

KOKEN COMPANIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1954, REQUESTING REVIEW OF SETTLEMENT DATED JULY 29, 1954, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR AN ADDITIONAL AMOUNT ALLEGED TO BE DUE FOR FREIGHT CHARGES ON SUPPLIES FURNISHED THE VETERANS ADMINISTRATION UNDER CONTRACT NO. V1001P-13774, DATED MARCH 26, 1952.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION ISSUED BY THE VETERANS ADMINISTRATION, WASHINGTON, D.C., YOU SUBMITTED AN UNDATED BID, OFFERING TO FURNISH 12 BARBER'S CHAIRS, FOR $222 EACH, PLACE OF DELIVERY TO BE F.O.B. POINT INSERTED IN THE BLANK SPACE FOLLOWING THE DESIGNATION "F.O.B." AS SHOWN IN THE INVITATION. IN YOUR LETTER YOU ADMIT THAT YOU FAILED TO WRITE OR TYPE IN THE WORDS "ST. LOUIS" IN THE BLANK SPACE PROVIDED THEREFOR AND YOU CONTEND THAT THIS WAS DUE TO AN OVERSIGHT AND THAT THE OMISSION WAS INCORRECTLY INTERPRETED TO MEAN F.O.B. DESTINATION PURSUANT TO THE VETERANS ADMINISTRATION SUPPLEMENTARY GENERAL PROVISIONS.

PARAGRAPH 4 OF THE VETERANS ADMINISTRATION SUPPLEMENTARY PROVISIONS FOR INDEFINITE QUANTITY CONTRACTS, WHICH IS MADE A PART OF THIS CONTRACT, EXPRESSLY PROVIDES THAT "IN THE EVENT THAT THE BIDDER FAILS TO INDICATE F.O.B. POINT, IT IS UNDERSTOOD AND AGREED THAT DELIVERY WILL BE MADE AT THE BIDDER'S EXPENSE F.O.B. TO ANY VETERANS ADMINISTRATION INSTALLATION NOW IN OPERATION, OR THAT WILL BE ESTABLISHED WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES."

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOUR COMPANY. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. CONSEQUENTLY, IF YOU SUBMITTED A BID AND FAILED TO FILL IN THE BLANK SPACE FOR THE F.O.B. POINT, SUCH ERROR WAS DUE SOLELY TO LACK OF PROPER CARE ON YOUR PART IN THE PREPARATION OF YOUR BID. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55. SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE SALISMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507, WHEREIN THE COURT SAID:

"*** ORDINARILY NO RELIEF WILL BE GRANTED TO A PARTY TO AN EXECUTORY CONTRACT IN THE CASE OF A UNILATERAL MISTAKE. IN SUCH CASE WHEN A BID HAS BEEN ACCEPTED THE BIDDER WHO HAS MADE A MISTAKE WILL BE BOUND AND MUST BEAR THE CONSEQUENCES THEREOF."

SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH - NO ERROR HAVING BEEN ALLEGED BY YOU 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 & REFINING CO., V. UNITED STATES, 259 U.S. 75. IT FOLLOWS FROM THE FACTS OF RECORD AND THE PLAIN PROVISIONS OF THE CONTRACT, THAT THERE IS NO LEGAL BASIS FOR RELIEVING YOUR COMPANY FROM LIABILITY FOR THE EXPENSE OF THE TRANSPORTATION CHARGES HERE INVOLVED.

ACCORDINGLY, THE SETTLEMENT OF JULY 29, 1954, IS SUSTAINED.