B-124456, JUL. 8, 1955

B-124456: Jul 8, 1955

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PUBLIC PRINTER: REFERENCE IS MADE TO YOUR LETTER OF JUNE 27. IS BASED. NO ERROR IS APPARENT ON THE FACE OF THE BID. THE CONTRACTOR'S BID OF $954 FOR THE JOB WAS NOT OUT OF LINE WITH THE FOUR OTHER BIDS OF $1. TO SUSPECT THERE WAS ANY ERROR IN THE CONTRACTOR'S BID WHEN THE BID WAS ACCEPTED AND THE PURCHASE ORDER WAS ISSUED. PURPORTING TO ESTABLISH THAT AN ERROR WAS MADE AS ALLEGED. IT DOES NOT APPEAR THAT PRIOR TO AWARD THE CONTRACTING OFFICER WAS AWARE OF AN ERROR IN THE BID. THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH AND A VALID AND BINDING CONTRACT WAS CONSUMMATED WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THERE IS NO SHOWING THAT THE CONTRACTING OFFICER HAD ANY KNOWLEDGE OF THE COST FACTORS ON WHICH THE BID WAS BASED.

B-124456, JUL. 8, 1955

TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1955, WITH ENCLOSURES, RELATIVE TO AN ERROR WHICH ZABEL BROTHERS CO. ALLEGES IT MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT, PURCHASE ORDER NO. 17375 DATED JUNE 15, 1955, IS BASED. THE PURCHASE ORDER CALLS FOR 689 COPIES OF UNPUBLISHED MUSIC, PLUS 371 FILM NEGATIVES. YOU REQUEST A DECISION AS TO WHETHER THE AWARD MAY BE CANCELED, AS REQUESTED BY THE CONTRACTOR.

NO ERROR IS APPARENT ON THE FACE OF THE BID. THE CONTRACTOR'S BID OF $954 FOR THE JOB WAS NOT OUT OF LINE WITH THE FOUR OTHER BIDS OF $1,015.50, $1,125, $1,218 AND $1,233. HENCE, THE CONTRACTING OFFICER HAD NO REASON, SO FAR AS THE PRESENT RECORD SHOWS, TO SUSPECT THERE WAS ANY ERROR IN THE CONTRACTOR'S BID WHEN THE BID WAS ACCEPTED AND THE PURCHASE ORDER WAS ISSUED. ALTHOUGH, AFTER AWARD, THE CONTRACTOR ALLEGED ERROR AND FURNISHED CERTAIN EVIDENCE, INCLUDING AN UNVERIFIED ESTIMATE SHEET, PURPORTING TO ESTABLISH THAT AN ERROR WAS MADE AS ALLEGED, IT DOES NOT APPEAR THAT PRIOR TO AWARD THE CONTRACTING OFFICER WAS AWARE OF AN ERROR IN THE BID. THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH AND A VALID AND BINDING CONTRACT WAS CONSUMMATED 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.

THERE IS NO SHOWING THAT THE CONTRACTING OFFICER HAD ANY KNOWLEDGE OF THE COST FACTORS ON WHICH THE BID WAS BASED. THE RESPONSIBILITY FOR THE PREPARATION OF A BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF THE CONTRACTOR MADE A MISTAKE IN FIGURING THE FORMS, AS STATED IN ITS LETTER OF JUNE 20, 1955, SUCH ERROR WAS DUE SOLELY TO THE LACK OF PROPER CARE ON ITS PART AND WAS NOT INDUCED OR CONTRIBUTED TO, IN ANY MANNER, BY THE GOVERNMENT. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61. THE ERROR, AS ALLEGED, MUST BE REGARDED AS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR RELEASING THE CONTRACTOR FROM ITS OBLIGATION UNDER THE TERMS OF THE CONTRACT.