B-125495, SEP. 27, 1955

B-125495: Sep 27, 1955

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ACTING PUBLIC PRINTER: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15. IS BASED. WAS. WE SUBMIT QUOTATIONS * * * TABLE UNIT NET QUANTITY UNIT DESCRIPTION PRICE AMOUNT IF THE BIDDER IS QUOTING IN EXACT ACCORDANCE WITH SPECIFICATIONS. IT IS NOT NECESSARY TO DESCRIBE THE ITEM IN DETAIL IN THIS COLUMN. 3 032 VANDERCOOK IMPOSING SURFACE PROOF PRESSES WITH AUTOMATIC INKING SYSTEMS. UNLESS EXCEPTIONS ARE SPECIFICALLY NOTED ABOVE.'. NOWHERE ON THE CLIPPING OR ELSEWHERE IS THERE SHOWN ANY LIST PRICE FOR EITHER OF THE PRESSES ILLUSTRATED. THE QUESTION FOR DETERMINATION IS NOT WHETHER THE CONTRACTOR MADE AN ERROR IN THE PREPARATION OF ITS BID. WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE BID WAS IN NO MANNER QUALIFIED TO INDICATE THAT FURNISHING THE EXTRA ROLLERS WAS NOT INTENDED.

B-125495, SEP. 27, 1955

TO HONORABLE JOHN M. WILSON, ACTING PUBLIC PRINTER:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1955, WITH ENCLOSURES, RELATIVE TO AN ERROR WHICH VANDERCOOK AND SONS, INC.,ALLEGES IT MADE IN ITS BID FOR FURNISHING FOUR PRESSES, IN EXACT ACCORDANCE WITH SPECIFICATIONS, ON WHICH UNNUMBERED CONTRACT PURCHASE ORDER NO. 3907, DATED AUGUST 24, 1955, IN THE AMOUNT OF $16,454, IS BASED.

THE INVITATION TO BID, NO. G.P. 18699-A, INCLUDED A COPY OF THE COMPLETE SPECIFICATIONS DATED AUGUST 5, 1955, ATTACHED IN THE SPACE DESIGNATED FOR DESCRIPTION OF THE EQUIPMENT REQUIRED. ITEM NO. 1, PARAGRAPH NO. 1, OF THE SPECIFICATIONS CALLED FOR THREE (3) IMPOSING SURFACE PROOF PRESSES, VANDERCOOK OR EQUAL, AS FURTHER DESCRIBED, AND ITEM NO. 2 OF THE SAME PARAGRAPH FOR ONE (1) PROOF PRESS (VANDERCOOK NO. 23 OR EQUAL) AS FURTHER DESCRIBED. PARAGRAPH NO. 2, THE FIRST OF THE SEVERAL SUCCEEDING PARAGRAPHS SPECIFYING WITH GREAT PARTICULARITY THE REQUIREMENTS TO BE MET BY THE BIDDER, EXPRESSLY STATED THAT ALL REGULAR EQUIPMENT AND TWO (2) EXTRA SETS OF RUBBER INKING ROLLERS SHALL BE FURNISHED WITH EACH PRESS.

THE CONTRACTOR'S BID, SUBMITTED IN RESPONSE THERETO, WAS, IN PERTINENT PART, SUBSTANTIALLY AS FOLLOWS:

AS PER YOUR INQUIRY OF AUGUST 5, 1955, WE SUBMIT QUOTATIONS * * *

TABLE

UNIT NET QUANTITY UNIT DESCRIPTION PRICE AMOUNT

IF THE BIDDER IS QUOTING

IN EXACT ACCORDANCE WITH

SPECIFICATIONS, IT IS NOT

NECESSARY TO DESCRIBE THE

ITEM IN DETAIL IN THIS

COLUMN.

3 032 VANDERCOOK IMPOSING SURFACE

PROOF PRESSES WITH AUTOMATIC

INKING SYSTEMS, AS DESCRIBED

ON THE BACK OF THIS SHEET

AT $4,236 $12.708

1 23 VANDERCOOK POWER GALLEY

PROOF PRESS EQUIPPED FOR

208 VOLTS, 3 PHASE, 60

CYCLES $3,746 $ 3,746

NET AMOUNT OF BID $16,454

THE BIDDER EXPRESSLY FURTHER AGREED ON THE FACE OF ITS BID TO FURNISH THE ABOVE ITEMS, AT THE PRICES QUOTED,"IN EXACT ACCORDANCE WITH SPECIFICATIONS, UNLESS EXCEPTIONS ARE SPECIFICALLY NOTED ABOVE.'

THE DESCRIPTION OF ITS NO. 032 PRESSES ON THE BACK OF ITS BID, INCORPORATED THEREIN BY THE ABOVE REFERENCE, CONSISTS OF WHAT APPEARS TO BE A CLIPPING FROM THE BIDDER'S CATALOG SHOWING AN ILLUSTRATION OF THE NO. 032 PRESS WITH THE AUTOMATIC INKING SYSTEM, AS REQUIRED TO BE FURNISHED, PORTRAYING THE INKING ROLLERS AS AN OBVIOUS INTEGRAL PART THEREOF; AND SHOWING ALSO, AN ILLUSTRATION OF THE SAME MODEL PRESS WITHOUT AUTOMATIC INKING SYSTEM. NOWHERE ON THE CLIPPING OR ELSEWHERE IS THERE SHOWN ANY LIST PRICE FOR EITHER OF THE PRESSES ILLUSTRATED. HOWEVER, THE CLIPPING INCLUDES PRINTED DESCRIPTIVE MATTER UNDER THE FOLLOWING CAPTIONS: "STANDARD EQUIPMENT," ,SPECIFICATIONS," "GENERAL DESCRIPTION" AND "RECOMMENDED USES.'

THE QUESTION FOR DETERMINATION IS NOT WHETHER THE CONTRACTOR MADE AN ERROR IN THE PREPARATION OF ITS BID, BUT WHETHER A VALID AND BINDING CONTRACT FOR THE PRESSES WITH THE EXTRA SETS OF ROLLERS, AS SPECIFIED, WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE BID WAS IN NO MANNER QUALIFIED TO INDICATE THAT FURNISHING THE EXTRA ROLLERS WAS NOT INTENDED, AND THE FACT THAT THEY WERE NOT MENTIONED IN THE DESCRIPTIVE LITERATURE IS NOT CONTROLLING, SINCE THE INVITATION CLEARLY CALLED FOR THEM IN ADDITION TO ALL REGULAR EQUIPMENT. NO ERROR WAS APPARENT ON THE FACE OF THE BID. YOU STATE THAT WHEN AWARD WAS MADE THE CONTRACTING OFFICER DID NOT REALIZE THAT THE PRICE QUOTED IN THE CONTRACTOR'S BID DID NOT INCLUDE THE COST OF TWO EXTRA SETS OF RUBBER INKING ROLLERS AS REQUIRED UNDER THE SECOND PARAGRAPH OF THE SPECIFICATIONS. THE EVIDENCE FURNISHED OF RECORD IS INSUFFICIENT TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER HAD ANY REASON TO SUSPECT ERROR IN THE BID. ALTHOUGH, AFTER AWARD, THE CONTRACTOR, BY ITS LETTER OF AUGUST 30, 1955, FORWARDING ACKNOWLEDGMENTS OF THE PURCHASE ORDER, ADVISED THAT THE COST OF THE EXTRA SETS OF INKING ROLLERS INCLUDED IN THE SPECIFICATIONS WAS NOT INCLUDED IN ITS BID PRICE, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER WAS AWARE OF COST FACTORS USED BY THE CORPORATION IN COMPUTING ITS BID PRICE. WHEN ONLY ONE RESPONSIVE BID IS RECEIVED, COMPARISON WITH OTHER BIDS, OF COURSE, IS IMPOSSIBLE. THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH AND WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR OR OMISSION. 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 SPECIFICATION PROVISION WITH RESPECT TO THE FURNISHING OF THE TWO EXTRA SETS OF RUBBER INKING ROLLERS WITH EACH OF THE FOUR PRESSES WAS CLEAR, UNAMBIGUOUS, AND MANDATORY. IF THE CORPORATION MADE AN ERROR BY FAILING, AS ALLEGED, TO INCLUDE THE COSTS THEREOF IN COMPUTING ITS BID PRICE--- WHICH ALLEGATION HAS NOT BEEN SUBSTANTIATED BY ANY EVIDENCE OF RECORD--- THE ERROR MUST BE ATTRIBUTED SOLELY TO THE LACK OF DUE CARE ON ITS PART AND NOT TO ANY FAULT OR FAILURE OF THE GOVERNMENT IN SPECIFYING ITS NEEDS FOR WHICH BIDS WERE REQUESTED. SUCH ERROR WOULD BE UNILATERAL-- - NOT MUTUAL--- AND THEREFORE WOULD 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 VANDERCOOK AND SONS, INC., FROM ITS OBLIGATION TO FURNISH THE FOUR PRESSES AS DESCRIBED, INCLUDING ALL REGULAR EQUIPMENT AND TWO (2) EXTRA SETS OF RUBBER INKING ROLLERS WITH EACH PRESS, AT THE ACCEPTED BID PRICE AS FIXED IN THE CONTRACT.