B-122131, AUG 23, 1955

B-122131: Aug 23, 1955

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TO EVEREADY SUPPLY COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED MAY 26. SHOWS CLEARLY THAT AGAIN YOU ARE MERELY REITERATING PREVIOUS ARGUMENTS IN SUPPORT OF THE CONTENTION THAT AN ERROR WAS MADE IN YOUR BID. WHICH WAS. THERE WERE THOROUGHLY AND CAREFULLY CONSIDERED ALL PERTINENT FACTS RELATIVE TO THE ESTABLISHMENT OF THE ALLEGED ERROR AND TO THE CONDITIONS ATTENDING THE ACCEPTANCE OF THE BID. UPON THE BASIS OF SUCH FACTS IT WAS DETERMINED IN THE FIRST INSTANCE THAT THE RECORD DID NOT SHOW CONCLUSIVELY THAT AN ERROR WAS. THAT UNDER THE CIRCUMSTANCES THE BID WAS ACCEPTED IN GOOD FAITH. SINCE NO NEW OR MATERIAL EVIDENCE HAS BEEN FURNISHED BY YOU THERE IS NO BASIS TO JUSTIFY A CONCLUSION DIFFERENT FROM THAT PREVIOUSLY REACHED IN THE MATTER.

B-122131, AUG 23, 1955

TO EVEREADY SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 26, 1955, IN FURTHER REGARD TO YOUR CLAIM FOR A REFUND OF $1,500 IN CONNECTION WITH YOUR PURCHASE FROM THE DEPARTMENT OF THE ARMY, BIRMINGHAM ORDNANCE DISTRICT, BIRMINGHAM, ALABAMA, OF A GRINDING MACHINE UNDER A CONTRACT DATED JULY 23, 1954.

YOUR REFERENCE TO PARAGRAPHS 4 AND 5 OF OUR DECISION TO YOU DATED MAY 16, 1955, SHOWS CLEARLY THAT AGAIN YOU ARE MERELY REITERATING PREVIOUS ARGUMENTS IN SUPPORT OF THE CONTENTION THAT AN ERROR WAS MADE IN YOUR BID. IN THE ORIGINAL DECISION OF THIS OFFICE DATED MARCH 23, 1955, TO THE SECRETARY OF THE ARMY AND IN THE ABOVE REFERRED-TO DECISION OF MAY 16, 1955, WHICH WAS, IN EFFECT, A REVIEW OF THE DECISION TO THE SECRETARY OF THE ARMY, THERE WERE THOROUGHLY AND CAREFULLY CONSIDERED ALL PERTINENT FACTS RELATIVE TO THE ESTABLISHMENT OF THE ALLEGED ERROR AND TO THE CONDITIONS ATTENDING THE ACCEPTANCE OF THE BID. UPON THE BASIS OF SUCH FACTS IT WAS DETERMINED IN THE FIRST INSTANCE THAT THE RECORD DID NOT SHOW CONCLUSIVELY THAT AN ERROR WAS, IN FACT, MADE IN YOUR BID AND SECOND, THAT UNDER THE CIRCUMSTANCES THE BID WAS ACCEPTED IN GOOD FAITH. THEREFORE, SINCE NO NEW OR MATERIAL EVIDENCE HAS BEEN FURNISHED BY YOU THERE IS NO BASIS TO JUSTIFY A CONCLUSION DIFFERENT FROM THAT PREVIOUSLY REACHED IN THE MATTER.

IT MIGHT AGAIN BE STATED HERE HOWEVER, SOLELY FOR THE PURPOSE OF STRESSING THE CONTROLLING FACTORS WHICH PREVAIL IN A CASE SUCH AS THIS, WHERE THE ERROR IS ALLEGED AFTER AWARD, THAT EVEN IF THE RECORD SHOWED, WITHOUT DOUBT, THAT AN ERROR HAD BEEN MADE IN YOUR BID AS ALLEGED SUCH FACT WOULD IN NO WAY AFTER THE CONCLUSION HERETOFORE REACHED IN THE MATTER IN THE ABSENCE OF A SHOWING THAT THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON NOTICE OF THE ERROR AT THE TIME OF THE ACCEPTANCE OF THE BID. WHEN A CONTRACTING OFFICER CANNOT BE CHARGED WITH SUCH NOTICE IN THE ACCEPTANCE OF A BID, AND THE FACTS IN THIS CASE DO NOT SHOW THAT THE CONTRACTING OFFICER CAN BE CHARGED WITH SUCH NOTICE, IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND THIS OFFICE THAT THE BID WAS ACCEPTED IN GOOD FAITH THEREBY CONSTITUTING A VALID AND BINDING CONTRACT WHICH FIXES THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

ACCORDINGLY, THE CONCLUSION PREVIOUSLY REACHED IN THE MATTER IS AFFIRMED.