B-124649, SEP. 16, 1955

B-124649: Sep 16, 1955

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED AUGUST 24. RELATIVE TO AN ERROR ALLEGED BY THE KEMMERER PAPER COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT. WAS BASED. THE ABSTRACT OF BIDS SHOWS THAT THE FIVE OTHER BIDS RECEIVED ON ITEM NO. 5 WERE $0.65. THE CONTRACTING OFFICER STATES THAT SINCE THE NEXT LOWEST BID WAS $0.65 PER ROLL HE HAD NO REASON TO SUSPECT THE PROBABILITY OF ANY ERROR IN THE COMPANY'S UNIT BID PRICE OF $0.63 1/2 FOR THE 1. ITEM NO. 5 WAS AWARDED TO THE COMPANY ON JUNE 28. TO THE CONTRACTOR IT WAS SUGGESTED THAT IT FURNISH EVIDENCE IN SUBSTANTIATION OF ITS ALLEGED ERROR AND CLAIM FOR RELIEF. NO ERROR WAS APPARENT ON THE FACE OF THE BID AND IT WAS NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED ON THE ITEM.

B-124649, SEP. 16, 1955

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 24, 1955, WITH ENCLOSURES, FROM THE CHIEF OF FINANCE, FILE FINEY 167/20 JUL 55 KEMMERER PAPER CO., FURNISHING THE REPORT REQUESTED IN OUR LETTER OF JULY 20, 1955, RELATIVE TO AN ERROR ALLEGED BY THE KEMMERER PAPER COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH UNNUMBERED CONTRACT, PURCHASE ORDER NO. 4759-55-MP, DATED JUNE 28, 1955, WAS BASED.

THE ABSTRACT OF BIDS SHOWS THAT THE FIVE OTHER BIDS RECEIVED ON ITEM NO. 5 WERE $0.65, $0.66, $0.69, $0.695 AND $1 PER ROLL. IN HIS FINDINGS OF FACT, THE CONTRACTING OFFICER STATES THAT SINCE THE NEXT LOWEST BID WAS $0.65 PER ROLL HE HAD NO REASON TO SUSPECT THE PROBABILITY OF ANY ERROR IN THE COMPANY'S UNIT BID PRICE OF $0.63 1/2 FOR THE 1,200 ROLLS OF GUMMED PAPER TAPE INVOLVED AND, THEREFORE, ITEM NO. 5 WAS AWARDED TO THE COMPANY ON JUNE 28, 1955.

ALTHOUGH, BY OUR LETTER OF JULY 20, 1955, TO THE CONTRACTOR IT WAS SUGGESTED THAT IT FURNISH EVIDENCE IN SUBSTANTIATION OF ITS ALLEGED ERROR AND CLAIM FOR RELIEF, NONE HAS BEEN RECEIVED. NO ERROR WAS APPARENT ON THE FACE OF THE BID AND IT WAS NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED ON THE ITEM. SINCE THE CONTRACTING OFFICER WAS NOT ON NOTICE, ACTUAL OR CONSTRUCTIVE, OF ANY ERROR IN THE BID-ERROR NOT HAVING BEEN ALLEGED UNTIL AFTER AWARD--- THE ACCEPTANCE OF THE BID APPEARS TO HAVE BEEN IN GOOD FAITH. CONSEQUENTLY, BY THE ACCEPTANCE OF THE BID IN THE CIRCUMSTANCES INVOLVED, THERE WAS 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. ALSO, SEE 20 COMP. GEN. 652.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR AUTHORIZING PAYMENT TO THE CONTRACTOR OF ANY AMOUNT FOR THE TAPE IN EXCESS OF THE PRICE FIXED IN THE ABOVE-CITED CONTRACT.