B-124570, SEP. 16, 1955

B-124570: Sep 16, 1955

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED AUGUST 25. RELATIVE TO AN ERROR ALLEGED BY THE BITTENBENDER COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT. WAS BASED. HE WAS NOT ON NOTICE OF THE PROBABILITY OF ANY ERROR IN THE COMPANY'S BID PRIOR TO AWARD. - BETWEEN THE CONTRACTOR'S AGGREGATE BID PRICE AND ITS ALLEGED COST OF THE PIECES OF MATERIAL INVOLVED IS NOT SUFFICIENT. EITHER TO JUSTIFY CHARGING THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR OR TO WARRANT A FINDING THAT THE CONTRACT RESULTING FROM THE ACCEPTANCE OF THE BID IS UNCONSCIONABLE. THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH. ANY ERROR THAT WAS MADE IN THE CONTRACTOR'S BID MUST BE ATTRIBUTED SOLELY TO THE CONTRACTOR.

B-124570, SEP. 16, 1955

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 25, 1955, WITH ENCLOSURES, FROM THE CHIEF OF FINANCE, FILE FINEY 167/18 JUL 55 BITTENBENDER COMPANY, FURNISHING THE REPORT REQUESTED IN OUR LETTER OF JULY 18, 1955, RELATIVE TO AN ERROR ALLEGED BY THE BITTENBENDER COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT, PURCHASE ORDER NO. 3728-55-MP DATED APRIL 29, 1955, WAS BASED.

THE FACTS OF RECORD, INCLUDING THE STATEMENTS OF THE CONTRACTING OFFICER IN HIS FINDINGS OF FACT WARRANT THE CONCLUSION THAT, AS HE CONTENDS, HE WAS NOT ON NOTICE OF THE PROBABILITY OF ANY ERROR IN THE COMPANY'S BID PRIOR TO AWARD. ALTHOUGH, AFTER AWARD, THE COMPANY ALLEGED ERROR AND FURNISHED EVIDENCE IN SUBSTANTIATION OF ITS ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD ANY REASON TO SUSPECT ERROR IN THE BID. THE DIFFERENCE--- LESS THAN $85--- BETWEEN THE CONTRACTOR'S AGGREGATE BID PRICE AND ITS ALLEGED COST OF THE PIECES OF MATERIAL INVOLVED IS NOT SUFFICIENT, IN ITSELF, EITHER TO JUSTIFY CHARGING THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR OR TO WARRANT A FINDING THAT THE CONTRACT RESULTING FROM THE ACCEPTANCE OF THE BID IS UNCONSCIONABLE.

THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH. CONSEQUENTLY, THE CONCLUSION MUST BE THAT THE ACCEPTANCE OF THE BID, IN THE CIRCUMSTANCES HERE 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 COMPANY V. UNITED STATES, 259 U.S. 75. ANY ERROR THAT WAS MADE IN THE CONTRACTOR'S BID MUST BE ATTRIBUTED SOLELY TO THE CONTRACTOR. IT WAS NOT INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. SINCE SUCH ERROR MUST BE REGARDED AS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT ENTITLED 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, THERE IS NO LEGAL BASIS FOR RELEASING THE CONTRACTOR FROM ITS OBLIGATION TO FURNISH THE ITEMS INVOLVED AT THE PRICE FIXED IN THE CONTRACT.