B-124853, AUG. 10, 1955

B-124853: Aug 10, 1955

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TO SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF JULY 25. ALLEGES WAS MADE ON ITEM NO. 12 OF ITS UNDATED BID ON WHICH UNNUMBERED CONTRACT. IS BASED. BIDS WERE REQUESTED FOR VARIOUS ITEMS OF SUPPLIES. IT WAS SPECIFIED THAT THE ENGRAVER SHOULD BE A NEW HERMES. ONLY ONE OTHER BID OF $588 WAS RECEIVED ON ITEM NO. 12 AND IT WAS REJECTED AS NOT RESPONSIVE. SEVERAL ITEMS INCLUDING ITEM NO. 12 WERE AWARDED TO EQUIPMENT SALES ON APRIL 25. THE COMPANY ADVISED THAT IT HAD MADE AN ERROR IN ITS BID FOR FURNISHING ITEM NO. 12 IN THAT IT WAS BASED ON AN ERRONEOUS QUOTATION FROM ITS SUPPLIER. THE SUPPLIER'S QUOTATION SUBSEQUENTLY CORRECTED WAS $800. ON WHICH BASIS THE COMPANY NOW CLAIMS THAT ITS BID PRICE SHOULD HAVE BEEN $835 INSTEAD OF $460.

B-124853, AUG. 10, 1955

TO SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1955, WITH ENCLOSURES, RELATIVE TO AN ERROR WHICH EQUIPMENT SALES AND MANUFACTURING CO. ALLEGES WAS MADE ON ITEM NO. 12 OF ITS UNDATED BID ON WHICH UNNUMBERED CONTRACT, PURCHASE ORDER NO. SB-1840 DATED APRIL 25, 1955, IS BASED.

BY INVITATION NO. S29-044-55-113 ISSUED APRIL 11, 1955, BIDS WERE REQUESTED FOR VARIOUS ITEMS OF SUPPLIES, INCLUDING ITEM NO. 12 COVERING ONE ELECTRICALLY OPERATED PORTABLE ENGRAVER WITH STANDARD EQUIPMENT AND WITH TWO FONTS EACH DESCRIBED IN DETAIL. IT WAS SPECIFIED THAT THE ENGRAVER SHOULD BE A NEW HERMES, MODEL NO. 1-SX, OR EQUAL. THE COMPANY SUBMITTED A BID ON SEVERAL ITEMS INCLUDING A BID PRICE OF $460 ON ITEM NO. 12. ONLY ONE OTHER BID OF $588 WAS RECEIVED ON ITEM NO. 12 AND IT WAS REJECTED AS NOT RESPONSIVE. SEVERAL ITEMS INCLUDING ITEM NO. 12 WERE AWARDED TO EQUIPMENT SALES ON APRIL 25, 1955.

BY LETTER OF MAY 9, 1955, THE COMPANY ADVISED THAT IT HAD MADE AN ERROR IN ITS BID FOR FURNISHING ITEM NO. 12 IN THAT IT WAS BASED ON AN ERRONEOUS QUOTATION FROM ITS SUPPLIER. THE SUPPLIER'S QUOTATION SUBSEQUENTLY CORRECTED WAS $800, LESS 15 PERCENT DISCOUNT, ON WHICH BASIS THE COMPANY NOW CLAIMS THAT ITS BID PRICE SHOULD HAVE BEEN $835 INSTEAD OF $460, AND REQUESTS THAT THE CONTRACT PRICE BE INCREASED TO $835. THE DESCRIPTION OF THE ITEM IN THE INVITATION APPEARS TO BE CLEAR AND UNAMBIGUOUS. FROM THE COMPANY'S EXPLANATION IT APPEARS THAT THE MISTAKE WAS DUE TO ITS FAILURE, IN REQUESTING THE QUOTATION FROM SUPPLIER, TO FURNISH FULL INFORMATION IN ITS POSSESSION AT THE TIME AS TO THE EXTRA EQUIPMENT REQUIRED. THE ERROR WAS DISCOVERED AFTER THE CONTRACTOR SENT TO ITS SUPPLIER A PURCHASE ORDER WITH A FULL DESCRIPTION INCLUDING THE REQUIRED EXTRA MISCELLANEOUS EQUIPMENT.

NO ERROR WAS APPARENT ON THE FACE OF THE BID, AND THERE IS NOTHING TO INDICATE THAT THE CONTRACTING OFFICER HAD ANY NOTICE, ACTUAL OR CONSTRUCTIVE, OF ANY ERROR IN THE COMPANY'S BID. HE, OF COURSE, HAD NO KNOWLEDGE AT THE TIME THE BID WAS ACCEPTED OF WHAT, IF ANYTHING, HAD TRANSPIRED BETWEEN THE COMPANY AND ITS SUPPLIER PERTAINING TO THE ITEM. THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE CONTRACTOR'S BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES 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. THE FACTS OF RECORD WARRANT THE CONCLUSION THAT THE ERROR, AS ALLEGED BY THE CONTRACTOR, WAS DUE SOLELY TO ITS OWN LACK OF DUE CARE. HENCE, THE ERROR WAS 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 THERE APPEARS NO LEGAL BASIS FOR RELEASING THE COMPANY FROM ITS OBLIGATION UNDER THE CONTRACT TO FURNISH THE EQUIPMENT CALLED FOR UNDER ITEM NO. 12 OR FOR AUTHORIZING AN INCREASE IN THE CONTRACT PRICE.

THE PAPERS, WITH THE EXCEPTION OF COPIES OF THE BID, THE AWARD, THE ABSTRACT OF BIDS, THE STATEMENT OF THE CONTRACTING OFFICER DATED MAY 13, 1955, AND THE COPIES OF THE LETTER DATED MAY 9, 1955, FROM THE CONTRACTOR, WITH THE COPIES OF THE QUOTATIONS FROM ITS SUPPLIER, ARE RETURNED.