B-125435, SEP. 29, 1955

B-125435: Sep 29, 1955

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6. WAS AWARDED. THE BID OF THE COMPANY WAS ACCEPTED ON MAY 10. THE COMPANY ALLEGED ERROR IN ITS BID IN THAT THE PRICE QUOTED WAS FOR DELIVERY F.O.B. ON ALL ITEMS AND THAT IN NO CASE WAS A DESTINATION PRICE QUOTED. THE CONTRACTOR WAS INSTRUCTED BY LETTER DATED MAY 17. IF RELIEF WAS DESIRED. THE CONTRACTING OFFICER REPORTS THAT DELIVERY UNDER THE CONTRACT WAS COMPLETED JULY 11. THE ABSTRACT OF BIDS SHOWS THAT FIVE OTHER BIDS WERE RECEIVED WHICH RANGED IN PRICE FROM $2. 018.88 AND THE OTHER BIDS RECEIVED DOES NOT APPEAR TO HAVE BEEN SUFFICIENT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY.

B-125435, SEP. 29, 1955

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 6, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR YELLOW PINE LUMBER COMPANY, SELMA, ALABAMA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT DA-35-026-ENG-24576, DATED MAY 10, 1955, WAS AWARDED.

BY INVITATION NO. ENG-35-026-55-164, SCHEDULE C, DATED APRIL 21, 1955, THE DISTRICT ENGINEER, CORPS OF ENGINEERS, PORTLAND, OREGON, REQUESTED BIDS FOR FURNISHING 10,133 FBM AND 14,200 FBM OF LUMBER FOR DELIVERY F.O.B. CARE AND/OR TRUCKS, DESTINATION, REEDVILLE, TEXAS. IN RESPONSE, THE YELLOW PINE LUMBER COMPANY SUBMITTED A BID DATED APRIL 26, 1955, OFFERING TO FURNISH THE REQUIRED LUMBER AT A TOTAL COST OF $2,018.88. THE BID OF THE COMPANY WAS ACCEPTED ON MAY 10, 1955.

BY TELEGRAM DATED MAY 12, 1955, THE COMPANY ALLEGED ERROR IN ITS BID IN THAT THE PRICE QUOTED WAS FOR DELIVERY F.O.B. CARS, MILL, SELMA, ALABAMA, INSTEAD OF F.O.B. DESTINATION, REEDVILLE, TEXAS, AS REQUIRED. IN A LETTER DATED MAY 14, 1955, THE COMPANY REITERATED ITS ALLEGATION OF ERROR AND STATED THAT IT DID NOT FEEL OBLIGATED TO ACCEPT THE CONTRACT ON A F.O.B. DESTINATION BASIS SINCE THEY HAD STATED F.O.B. CARS OR TRUCKS MILL, SELMA, ALABAMA, ON ALL ITEMS AND THAT IN NO CASE WAS A DESTINATION PRICE QUOTED. THE CONTRACTOR WAS INSTRUCTED BY LETTER DATED MAY 17, 1955, TO PROCEED WITH DELIVERY UNDER THE ORIGINAL CONDITIONS OF THE CONTRACT AND, IF RELIEF WAS DESIRED, TO SUBMIT THIS CLAIM OF ALLEGED MISTAKE IN BID IN WRITING, NOTARIZED AND SUPPORTED BY DOCUMENTARY EVIDENCE. THE CONTRACTING OFFICER REPORTS THAT DELIVERY UNDER THE CONTRACT WAS COMPLETED JULY 11, 1955, BUT FINAL PAYMENT HAS NOT BEEN MADE. BY LETTER DATED JULY 22, 1955, THE CONTRACTOR FORWARDED NOTARIZED AFFIDAVIT ACCOMPANIED BY COPY OF THE PAID FREIGHT BILL AND REQUESTED REIMBURSEMENT FOR FREIGHT CHARGES IN THE AMOUNT OF $353.56.

THE ABSTRACT OF BIDS SHOWS THAT FIVE OTHER BIDS WERE RECEIVED WHICH RANGED IN PRICE FROM $2,305.47 TO $3,343.03. THE DIFFERENCE BETWEEN THE BID OF YELLOW PINE LUMBER COMPANY OF $2,018.88 AND THE OTHER BIDS RECEIVED DOES NOT APPEAR TO HAVE BEEN SUFFICIENT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED CERTAIN DATA IN SUPPORT OF ITS ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID PRICES. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE COMPANY UNTIL AFTER AWARD--- AND, THEREFORE, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT BIDS WERE DESIRED ON THE BASIS OF A PRICE F.O.B. DESTINATION AND THAT BIDS ON ANY OTHER BASIS OF DELIVERY WOULD NOT BE ACCEPTED. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER- DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN THE BID OF THE COMPANY WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505. ALSO, SEE 26 COMP. GEN. 426.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR REIMBURSING THE YELLOW PINE LUMBER COMPANY FOR FREIGHT CHARGES IN THE AMOUNT OF $353.56.