B-126472, JAN. 13, 1956

B-126472, JAN. 13, 1956

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF DECEMBER 28, 1955, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), RELATIVE TO AN ERROR ALLEGED BY THE IVORY PINE COMPANY OF CALIFORNIA TO HAVE BEEN MADE IN ITS BID DATED OCTOBER 8, 1955, ON WHICH CONTRACT DA 35-026-ENG-26122, DATED OCTOBER 14, 1955, WAS BASED.

AFTER AWARD THE CONTRACTOR ADVISED, BY LETTER DATED NOVEMBER 18, 1955, CONFIRMING TELEPHONE CONVERSATION OF OCTOBER 17, 1955, THAT THE PRICES QUOTED ON ITEMS NOS. 3 AND 4-A INADVERTENTLY WERE BASED ON FURNISHING "NO 5 COMMON" IN LIEU OF "NO. 3 DIMENSION" AS SPECIFIED. THEREFORE, REIMBURSEMENT IN THE AMOUNT OF $517.44, BASED ON THE DIFFERENCE BETWEEN ITS BID AND THE NEXT LOWEST BID ON ITEM NO. 3, WAS REQUESTED IN ADDITION TO THE CONTRACT PRICE. SINCE THE DIFFERENCE BETWEEN THE COMPANY'S BID ON ITEM NO. 4-A AND THE NEXT LOWEST BID THEREON WAS ONLY $1.98 PER MFBM, A MATTER OF LESS THAN $66, NO CLAIM FOR REIMBURSEMENT THEREFOR WAS REQUESTED.

THERE IS NO INDICATION IN THE PRESENT RECORD THAT THE CONTRACTING OFFICER WAS AWARE PRIOR TO AWARD OF ANY ERROR IN THE BID. NO ERROR WAS APPARENT ON THE FACE OF THE BID. THE DIFFERENCE BETWEEN THE CONTRACTOR'S BID ON THE TWO ITEMS INVOLVED AND THE NEXT LOWEST BIDS RECEIVED THEREON--- ALTHOUGH CONSIDERABLE IN CASE OF ITEM NO. 3--- WAS NOT GREAT ENOUGH, CONSIDERING THE WIDE VARIANCE IN THE BIDS RECEIVED ON BOTH ITEMS NOS. 3 AND 4-A TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR IN THE BID ON EITHER ITEM. CONSEQUENTLY, THE CONCLUSION IS WARRANTED THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED PRIOR TO AWARD. 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 INVITATION WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID IN RESPONSE THERETO WAS UPON THE BIDDER. IF, AS THE COMPANY STATES, ITS BID ON ITEMS NOS. 3 AND 4-A WAS BASED ON "NO 5 COMMON" INSTEAD OF ON "NO 3 DIMENSION" AS REQUIRED, THE ERROR WAS DUE SOLELY TO ITS OWN FAILURE TO EXERCISE PROPER CARE IN READING THE SPECIFICATIONS AND WAS NOT INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. SUCH ERROR WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 59 F.SUPP. 505, 507.

ACCORDINGLY, ON THE FACTS OF RECORD, THERE IS NO LEGAL BASIS FOR AUTHORIZING PAYMENT TO THE CONTRACTOR OF ANY AMOUNT IN ADDITION TO THE PRICE SPECIFIED IN ITS BID, WHICH HAS BEEN PAID, FOR THE LUMBER FURNISHED UNDER EITHER ITEM NO. 3 OR ITEM NO. 4-A OF THE CONTRACT.

THE PAPERS, WITH THE EXCEPTION OF THE LETTER DATED DECEMBER 5, 1955, FROM THE OFFICE OF DISTRICT ENGINEER TO THE DIVISION ENGINEER, 1ST AND 2ND INDORSEMENTS DATED DECEMBER 6 AND 13, 1955, RESPECTIVELY, AND ONE OF THE THREE COPIES OF THE OTHER CORRESPONDENCE AND DOCUMENTS FURNISHED, ARE RETURNED.