B-125554, JAN. 3, 1956

B-125554, JAN. 3, 1956

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO LETTER DATED OCTOBER 27 AND DECEMBER 14, 1955, WITH ENCLOSURES, FROM THE DIRECTOR, POLICY AND PLANNING SERVICE, FURNISHING THE REPORT AND INFORMATION REQUESTED IN OUR LETTERS OF SEPTEMBER 30, 1955, AND NOVEMBER 10, 1955, RESPECTIVELY, RELATIVE TO AN ERROR ALLEGED BY COLONY FOODS, INC., TO HAVE BEEN MADE IN ITS BID DATED AUGUST 12, 1955, ON WHICH CONTRACT NO. V1005P-3192 DATED AUGUST 23, 1955, WAS AWARDED.

ITEM NO. 10 OF INVITATION NO. S-19 COVERED 3,000 GALLON (NO. 12) CANS OF MIXED (CUT) SWEET PICKLES OR, IN THE ALTERNATIVE, 3,792 NO. 10 CANS OF THE SAME PRODUCT, WITH DELIVERY IN EITHER CASE TO SOMERVILLE, NEW JERSEY. UPON RECEIPT OF THE NOTICE OF AWARD AS TO ITEM NO. 10, COVERING THE 3,000 GALLON CANS OFFERED FOR DELIVERY IN DECEMBER, THE CORPORATION RETURNED THE PURCHASE ORDER WITH THE REQUEST THAT THE CONTRACT PRICE OF $1.025 PER GALLON BE CHANGED TO CONFORM TO ITS ALLEGED BID PRICE OF $1.20 PER GALLON CAN. BY LETTER OF SEPTEMBER 6, 1955, THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT THE ORIGINAL AND ALL COPIES OF ITS BID IN HIS POSSESSION AT THE TIME OF THE AWARD PROVIDED FOR A PRICE OF $1.025 PER CAN FOR THE PICKLES IN THE GALLON CANS AND $0.86 PER CAN IN THE NO. 10 CANS. SINCE THE ORIGINAL TYPED PRICES OF $1.20 PER CAN FOR THE GALLON CANS AND $1.025 PER CAN FOR THE NO. 10 CANS HAD BEEN COMPLETELY DELETED, THE SUBSTITUTED PRICES HAD BEEN INSERTED IN INK, AND THE CHANGE INITIALED BY THE PRESIDENT OF THE CORPORATION, WHO EXECUTED THE BID, THE CONTRACTING OFFICER STATED THAT THERE WAS NO REASON TO BELIEVE THE BID WAS NOT INTENDED AS SUBMITTED.

IN A LETTER OF SEPTEMBER 19, 1955, TO OUR OFFICE, THE CONTRACTOR ALLEGED THAT AFTER THE BID WAS TYPED IT WAS DECIDED TO REDUCE THE PRICE ON ITEM NO. 13--- SWEET PICKLE RELISH--- AND THAT THE INTENDED CHANGE WAS MADE ON THE ORIGINAL BID BY USE OF PEN AND INK, BUT THAT ON THE THREE (3) COPIES THE CHANGE WAS INADVERTENTLY MADE ON ITEM NO. 10 INSTEAD OF AN ITEM NO. 13. IN SUBSTANTIATION OF ITS CONTENTION AN ABSTRACT OF BIDS BY THE WOODSIDE-MURPHY CO. WAS SUBMITTED AND MODIFICATION OF THE CONTRACT PRICE WAS REQUESTED.

THE INVITATION CALLED FOR BIDS IN QUADRUPLICATE. IN A REQUESTED REPORT PERTAINING TO THE MATTER THIS OFFICE WAS ADVISED ADMINISTRATIVELY THAT UPON RECEIPT OF THE CONTRACTOR'S BID ONE COPY WAS IMMEDIATELY TRANSFERRED TO AND RETAINED IN THE BID INFORMATION FILE PURSUANT TO THE USUAL PRACTICE, AND THAT ONLY THE ORIGINAL (MEANING THE RIBBON COPY) AND THE REMAINING TWO COPIES WERE USED FOR ABSTRACTING THE BIDS RECEIVED. ALL THREE OF THESE SHOWED THE CHANGE IN ITEM 10, AND THE FACT THAT THE PRICE UNDER THAT ITEM HAD NOT BEEN CHANGED ON THE COPY OF THE BID WHICH HAD BEEN RETAINED IN THE BID INFORMATION FILE WAS UNNOTICED AND CONSEQUENTLY UNKNOWN TO THE CONTRACTING OFFICER UNTIL AFTER RECEIPT OF THE CONTRACTOR'S PROTEST.

ALL FOUR COUNTERPARTS OF THE BID WERE FORWARDED HERE, AND EXAMINATION THEREOF ESTABLISHES THAT AS ORIGINALLY TYPED THE IDENTICAL FIGURES WERE SHOWN FOR ITEMS NOS. 10 AND 13--- NAMELY, $1.20 EACH FOR GALLON CANS AND $1.025 EACH FOR NO. 10 CANS. THE RIBBON COPY AND TWO CARBONS BORE THE CHANGES ON ITEM 10, AS DESCRIBED BY THE CONTRACTING OFFICER; THE REMAINING COPY BORE THE SAME CHANGES ON ITEM 13. THE ABSTRACT OF BIDS SHOWS THAT THE BID OF $1.025 PER GALLON WAS THE ONLY BID RECEIVED FOR FURNISHING ITEM 10 IN GALLON CANS, AND THAT ALTHOUGH THE BID OF $0.86, AS ALTERED, FOR NO. 10 CANS WAS THE LOWEST, IT WAS NOT OUT OF LINE WITH THE FOUR OTHER BIDS OF $0.9233, $0.95, $1,052 AND $1.14 RECEIVED THEREFORE. WHERE ONLY ONE BID IS RECEIVED FOR AN ITEM, AS IN THE PRESENT CASE FOR THE GALLON SIZE CANS, IT IS IMPOSSIBLE TO MAKE A COMPARISON OF BIDS.

WHERE MORE THAN ONE COPY OF A BID IS CALLED FOR, IT IS OBVIOUSLY THE RESPONSIBILITY OF THE BIDDER TO SEE THAT THE SEVERAL COUNTERPARTS WHICH HE SUBMITS ARE IN CONFORMITY AND WE DO NOT BELIEVE THAT IT IS INCUMBENT UPON THE REPRESENTATIVES OF THE GOVERNMENT TO CHECK THE PURPORTED IDENTICAL COPIES AGAINST EACH OTHER. IN THE CIRCUMSTANCES HERE SHOWN WE CANNOT FIND THAT PRIOR TO AWARD THE CONTRACTING OFFICER WAS AWARE OF ANY ERROR IN THE BID, OR WAS PROPERLY CHARGEABLE WITH NOTICE OF ANY FACTS INDICATING A PROBABILITY OF ERROR. THE ACCEPTANCE OF THE BID WAS IN COMPLETE GOOD FAITH AND THEREFORE 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 INVITATION WAS CLEAR AND UNAMBIGUOUS, AND THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID WAS UPON THE BIDDER. IF THE CHANGES THAT WERE MADE ON ITEM NO. 10 OF THE TYPED BID WERE NOT INTENDED, AS SUBSEQUENTLY CLAIMED, THE MISTAKE WAS THAT OF THE BIDDER ALONE, AND CANNOT FURNISH ANY GROUND FOR RELIEF FROM THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 59 F.SUPP. 505, 507.

THE PAPERS, WITH THE EXCEPTION OF CONTRACTING OFFICER'S UNDATED STATEMENT IN THE REFERENCE SLIP VA FORM NO. 3230 AND THE PHOTOSTATIC COPIES OF PERTINENT DOCUMENTS FURNISHED, ARE RETURNED.