B-124684, NOV. 30, 1955

B-124684: Nov 30, 1955

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 7. TO HAVE BEEN MADE IN ITS BID DATED MAY 23. WAS BASED. AFTER AWARD THE CONTRACTOR ALLEGED THAT ITS BID ACTUALLY WAS BASED ON DELIVERY F.O.B. THE ANALYSIS OF BIDS CONTAINED IN THE REPORT DEMONSTRATES THAT THE CONTRACTOR'S BID WAS NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED. THERE IS NO EVIDENCE IN THE RECORD OF THIS CASE TO INDICATE THAT THE CONTRACTING OFFICER WAS ACTUALLY AWARE PRIOR TO AWARD OF ANY MISUNDERSTANDING ON THE BIDDER'S PART OF THE CLEAR AND UNAMBIGUOUS PROVISION IN THE TERMS OF THE INVITATION THAT DELIVERY F.O.B. DESTINATION WAS REQUIRED. THE CONCLUSION IS WARRANTED THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH WITHOUT NOTICE.

B-124684, NOV. 30, 1955

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 7, 1955, WITH ENCLOSURES, FROM THE CHIEF OF FINANCE, FURNISHING THE REPORT REQUESTED IN OUR LETTER OF JULY 25, 1955, RELATIVE TO AN ERROR ALLEGED BY H. T. HERBERT CO. TO HAVE BEEN MADE IN ITS BID DATED MAY 23, 1955, ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER NO. 01-7663-G-55) DATED JUNE 18, 1955, WAS BASED.

AFTER AWARD THE CONTRACTOR ALLEGED THAT ITS BID ACTUALLY WAS BASED ON DELIVERY F.O.B. NEW YORK, INSTEAD OF F.O.B. SAN FRANCISCO, AS REQUIRED UNDER THE TERMS OF THE CONTRACT; BUT NO COMPETENT EVIDENCE HAS BEEN FURNISHED BY THE CONTRACTOR IN SUBSTANTIATION OF ITS ALLEGATION OFERROR.

THE CONTRACTING OFFICER STATES IN HIS REPORT OF SEPTEMBER 15, 1955, THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID OF H. T. HERBERT CO. PRIOR TO ACCEPTANCE OF THE BID; AND THE ANALYSIS OF BIDS CONTAINED IN THE REPORT DEMONSTRATES THAT THE CONTRACTOR'S BID WAS NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED. MOREOVER, THERE IS NO EVIDENCE IN THE RECORD OF THIS CASE TO INDICATE THAT THE CONTRACTING OFFICER WAS ACTUALLY AWARE PRIOR TO AWARD OF ANY MISUNDERSTANDING ON THE BIDDER'S PART OF THE CLEAR AND UNAMBIGUOUS PROVISION IN THE TERMS OF THE INVITATION THAT DELIVERY F.O.B. DESTINATION WAS REQUIRED.

FROM THE FOREGOING, THE CONCLUSION IS WARRANTED THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH WITHOUT NOTICE, ACTUAL OR CONSTRUCTIVE, OF ANY ERROR IN THE BID. IN THE CIRCUMSTANCES, SUCH ACTION CONSUMMATED A LEGAL 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. SINCE THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS UPON THE BIDDER AND IT IS EVIDENT THAT ANY ERROR SUCH AS HERE ALLEGED AFTER AWARD WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR WOULD NOT BE ENTITLED TO RELIEF EVEN IF THE ERROR WERE ESTABLISHED. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR AUTHORIZING PAYMENT TO THE CONTRACTOR OF ANY AMOUNT IN ADDITION TO THE PRICE STIPULATED IN THE CONTRACT FOR EFFECTING DELIVERY OF THE ART SUPPLIES F.O.B. DESTINATION STRICTLY IN ACCORDANCE WITH THE CONTRACT TERMS.

THE CONTRACTOR IS BEING ADVISED OF THIS DECISION DENYING ITS REQUEST FOR RELIEF.