B-125971, FEB. 2, 1956

B-125971, FEB. 2, 1956

TO PAXTON AND GALLAGHER COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1955, AS SUPPLEMENTED BY YOUR LETTER DATED JANUARY 5, 1956, WHEREIN YOU ALLEGE THAT AN ERROR WAS MADE ON ITEM 1 OF YOUR BID DATED OCTOBER 29, 1955, ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER NO. 32-NPS-68) DATED SEPTEMBER 9, 1955, IS BASED.

BY INVITATION NO. 32-8, THE REGION TWO OFFICE OF THE NATIONAL PARK SERVICE, OMAHA, NEBRASKA, REQUESTED BIDS--- TO BE OPENED SEPTEMBER 6, 1955 --- FOR FURNISHING 260 SPOOLS OF 4 POINT BARBED WIRE AND 11 ROLLS OF GALVANIZED FENCE WIRE, ITEMS 1 AND 2, RESPECTIVELY. IN RESPONSE, YOU SUBMITTED A BID DATED AUGUST 29, 1955, OFFERING TO FURNISH ITEMS 1 AND 2 AT PRICES OF $8.50 PER SPOOL AND $9.385 PER ROLL, RESPECTIVELY. THE BID WAS ACCEPTED ON SEPTEMBER 7, 1955, AND ON SEPTEMBER 9, PURCHASE ORDER NO. 32-NPS-68 WAS ISSUED REQUESTING DELIVERY OF THE FENCING MATERIAL.

BY LETTER DATED SEPTEMBER 14, 1955, YOU ADVISED THE PROCUREMENT OFFICER THAT THE BID PRICE OF $8.50 PER SPOOL FOR ITEM 1 WAS ERRONEOUS IN THAT IT WAS BASED ON FURNISHING 2 POINT BARBED WIRE AND NOT 4 POINT BARBED WIRE; AND THAT IF 4 POINT BARBED WIRE WAS REQUIRED BY THE SPECIFICATIONS, WAUKEGON 4 POINT WIRE WOULD COST $8.78 PER SPOOL AND LYMAN 4 POINT WIRE WOULD COST $9.21 PER SPOOL.

IN YOUR LETTER DATED NOVEMBER 1, 1955, TO THIS OFFICE, YOU REQUESTED THAT THE UNIT PRICE OF ITEM 1 BE INCREASED FROM $8.50TO $8.78 PER SPOOL, AND BY LETTER DATED JANUARY 5, 1956, YOU REDUCED THE REQUESTED UNIT PRICE BY ONE CENT. IN SUPPORT OF THE ALLEGATION OF ERROR, THERE WAS FURNISHED A COPY OF YOUR SUPPLIER'S PRINTED PRICE LIST AND A COPY OF A LETTER RECEIVED FROM THE SUPPLIER.

THE TWO OTHER BIDDERS ON ITEM 1 QUOTED PRICES OF $8.99 PER SPOOL AND $9.45 PER SPOOL, RESPECTIVELY. THE DIFFERENCE BETWEEN YOUR BID OF $8.50 PER SPOOL FOR ITEM 1 AND THE OTHER BIDS ON THAT ITEM DOES NOT APPEAR TO HAVE BEEN SUFFICIENT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. WHILE IT NOW APPEARS THAT YOUR BID WAS ERRONEOUS, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED IN COMPUTING YOUR BID PRICE, OR OF ANY FACTS INDICATING THAT YOUR BID WAS NOT BASED UPON FURNISHING 4 POINT BARBED WIRE AS SPECIFIED. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH-- NO ERROR HAVING BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER 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 CO., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS, ITEM 1 OF THE SCHEDULE SPECIFICALLY CALLING FOR "4 POINT BARBS SPACED APPROXIMATELY 5 INCHES.' THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. YOUR ERROR IN INSERTING A PRICE COMPUTED FOR 2 POINT BARBED WIRE WAS DUE SOLELY TO LACK OF PROPER CARE ON YOUR PART AND NOT TO ANY FAILURE OF THE GOVERNMENT TO FURNISH SUFFICIENT INFORMATION AS TO THE FENCING MATERIAL REQUIRED. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 52; AND 26 ID. 415.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE PRICE SPECIFIED IN PURCHASE ORDER NO. 32- NPS-68 FOR ITEM 1, AS REQUESTED. WE HAVE NO LEGAL AUTHORITY TO RELIEVE CONTRACTORS FROM THE CONSEQUENCES OF AN ERRONEOUS BID, AFTER ACCEPTANCE, UNLESS THE ACCEPTANCE OF THE BID WAS UNDER SUCH CIRCUMSTANCES AS WOULD JUSTIFY THE IMPUTATION OF BAD FAITH TO THE OFFICER ACCEPTING IT. ..END :