B-125842, DEC. 20, 1955

B-125842: Dec 20, 1955

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TO CREAM-WIPT FOOD PRODUCTS CO.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1. WAS ACCEPTED AND YOU WERE ADVISED THEREOF BY TELEGRAM DATED FEBRUARY 3. YOU ALLEGED THAT "THE 10 PERCENT GROSS MARK-UP WAS ERRONEOUSLY OMITTED" IN THE COMPUTATION OF YOUR BID PRICE AND IN EFFECT REQUESTED THAT THE AWARD ON YOUR BID BE CANCELLED. YOU WERE ADVISED THAT YOU WOULD BE REQUIRED TO PERFORM AND THEREAFTER. THE CLAIM WAS DISALLOWED BY THE SETTLEMENT OF JUNE 10. YOU ARE ENTITLED TO PAYMENT AT THE PRICE SPECIFIED IN THE CORRECT LOW BID. THE QUESTION FOR CONSIDERATION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT AROSE BY REASON OF THE ACCEPTANCE OF YOUR BID. THERE WAS NOTHING ON THE FACE OF YOUR BID TO PUT THE CONTRACTING OFFICER ON NOTICE OF AN ERROR IN YOUR BID.

B-125842, DEC. 20, 1955

TO CREAM-WIPT FOOD PRODUCTS CO.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1955, ACKNOWLEDGED OCTOBER 19, 1955, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 10, 1955, DISALLOWING YOUR CLAIM FOR $391.66 ALLEGED TO BE DUE ON ACCOUNT OF AN ERROR IN YOUR BID WHICH CONSTITUTED THE BASIS FOR CONTRACT NO. DA-11 027-QM-62952, DATED FEBRUARY 3, 1954.

BY NOTICE OF INTENT TO PURCHASE NO. 444-54, DATED JANUARY 7, 1954, THE QUARTERMASTER MARKET CENTER SYSTEM, CHICAGO, ILLINOIS, INVITED BIDS FOR FURNISHING 14,100 GALLON JARS OF MAYONNAISE F.O.B. CAMP LEJEUNE, NORTH CAROLINA. IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID OF $1.562 PER GALLON LESS A DISCOUNT OF 1 PERCENT FOR PAYMENT WITHIN 20 DAYS. YOUR BID, BEING THE LOWEST RECEIVED, WAS ACCEPTED AND YOU WERE ADVISED THEREOF BY TELEGRAM DATED FEBRUARY 3, 1954. BY LETTER OF FEBRUARY 8, 1954, CONFIRMING A TELEPHONE MESSAGE OF FEBRUARY 5, 1954, YOU ALLEGED THAT "THE 10 PERCENT GROSS MARK-UP WAS ERRONEOUSLY OMITTED" IN THE COMPUTATION OF YOUR BID PRICE AND IN EFFECT REQUESTED THAT THE AWARD ON YOUR BID BE CANCELLED. YOU WERE ADVISED THAT YOU WOULD BE REQUIRED TO PERFORM AND THEREAFTER, IF YOU DESIRED TO DO SO, YOU MIGHT REQUEST RELIEF.

AFTER YOU FURNISHED THE MAYONNAISE AND RECEIVED PAYMENT IN ACCORDANCE WITH YOUR ACCEPTED BID PRICE, YOU ASSERTED A CLAIM FOR $391.66 AS THE DIFFERENCE BETWEEN YOUR BID PRICE AND THE PRICE QUOTED IN THE BID SUBMITTED BY J. H. FILBERT, INC. THE CLAIM WAS DISALLOWED BY THE SETTLEMENT OF JUNE 10, 1955. YOUR REQUEST FOR REVIEW APPEARS TO BE BASED ON THE CONCLUSION THAT THE ALLEGED ERROR IN YOUR BID HAS BEEN ESTABLISHED AND THAT, THEREFORE, YOU ARE ENTITLED TO PAYMENT AT THE PRICE SPECIFIED IN THE CORRECT LOW BID.

THE QUESTION FOR CONSIDERATION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT AROSE BY REASON OF THE ACCEPTANCE OF YOUR BID. THERE WAS NOTHING ON THE FACE OF YOUR BID TO PUT THE CONTRACTING OFFICER ON NOTICE OF AN ERROR IN YOUR BID. THE ABSTRACT OF BIDS SHOWS THAT EIGHT OF THE OTHER BIDS WERE $1.573, $1.574, $1.615, $1.633, $1.64, $1.6487, $1.8275 AND $1.987 PER GALLON, RESPECTIVELY. THE CONTRACTING OFFICER HAS REPORTED THAT THE PRICES PAID FOR MAYONNAISE DURING THE 12 MONTHS NEXT PRECEDING THE AWARD HERE INVOLVED RANGED FROM $1.61472 TO $1.78738. CALLING ATTENTION TO THE FACT THAT THE PRICES QUOTED IN YOUR BID AND THE NEXT TWO LOW BIDS WERE ALL LOWER THAN THE LOWEST PRICE PAID DURING THE PRECEDING 12 MONTHS, THE CONTRACTING OFFICER INDICATED THAT SUCH FACT DID NOT GIVE RISE TO ANY SUSPICION OF ERROR SINCE IT IS COMMON KNOWLEDGE THAT CONSIDERABLE FLUCTUATIONS OCCUR IN THE MARKET PRICE OF OIL AND EGGS, THE PRINCIPAL INGREDIENTS USED IN THE MANUFACTURE OF MAYONNAISE. HENCE, IT MAY NOT BE PRESUMED THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID--- THIS FACT IS ADMITTED IN YOUR RECENT LETTER--- AND THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 U.S. 645.

MOREOVER, THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF YOUR BID SUBMITTED IN RESPONSE THERETO WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS YOU ALLEGE, AN ERROR WAS MADE IN THE COMPUTATION OF YOUR BID PRICE, SUCH ERROR WAS DUE SOLELY TO YOUR OWN OVERSIGHT AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :