B-126578, JAN. 25, 1956

B-126578: Jan 25, 1956

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TO REPUBLIC GAGE COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 8. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $517.14 UNDER CONTRACT NO. YOUR BID WAS ACCEPTED ON THESE ITEMS ON AUGUST 2. YOUR REQUEST FOR REVIEW IS BASED ON THE CONTENTION THAT THE ERROR IN YOUR BID MUST HAVE BEEN APPARENT TO THE CONTRACTING OFFICER FROM A MERE PRICE COMPARISON BASIS. THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO VERIFY YOUR BID PRIOR TO AWARD NOTWITHSTANDING THE APPARENT ERROR. IT IS REPORTED THAT TEN BIDS WERE RECEIVED ON ITEM B OF THE INVITATION RANGING IN PRICE FROM $13 TO $55 EACH. IT REASONABLY MAY NOT BE CONCLUDED THAT YOUR BID OF $13 EACH WAS OUT OF LINE WITH THE NINE OTHER BIDS RECEIVED.

B-126578, JAN. 25, 1956

TO REPUBLIC GAGE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 8, 1955, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 21, 1955, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $517.14 UNDER CONTRACT NO. DA-28-017-ORD 2644, DATED AUGUST 2, 1954.

IN RESPONSE TO INVITATION NO. ORD 28-017-54-328 YOU SUBMITTED A BID OFFERING TO FURNISH TO THE DEPARTMENT OF THE ARMY, PICATINNY ARSENAL, DOVER, NEW JERSEY, AMONG OTHERS, ITEMS B, C, D, E AND K, COVERING VARIOUS TYPES AND QUANTITIES OF GAGES FOR A TOTAL PRICE OF $660.08. YOUR BID WAS ACCEPTED ON THESE ITEMS ON AUGUST 2, 1954, THEREBY CONSUMMATING CONTRACT NO. DA-28-017-ORD-2644. BY LETTER DATED AUGUST 11, 1954, YOU ADVISED PICATINNY ARSENAL THAT AN ERROR HAD BEEN MADE IN YOUR PRICE OF $13 EACH FOR THE GAGES SPECIFIED IN ITEM B OF THE INVITATION, IN THAT THE COST OF MANUFACTURING THESE GAGES WOULD BE APPROXIMATELY $50 EACH. THE ARSENAL LATER ADVISED YOU THAT IT HAD NO AUTHORITY TO GRANT RELIEF IN THE MATTER AND THEREUPON YOU FURNISHED THE GAGES AND FILED A CLAIM FOR $517.14 BASED ON THE DIFFERENCE BETWEEN YOUR BID OF $13 EACH FOR THE GAGES AND $26.26, THE MANUFACTURED COST WITHOUT ANY SALES COST OR PROFIT.

YOUR REQUEST FOR REVIEW IS BASED ON THE CONTENTION THAT THE ERROR IN YOUR BID MUST HAVE BEEN APPARENT TO THE CONTRACTING OFFICER FROM A MERE PRICE COMPARISON BASIS; ALSO, THAT YOU WERE NOT AFFORDED AN OPPORTUNITY TO VERIFY YOUR BID PRIOR TO AWARD NOTWITHSTANDING THE APPARENT ERROR.

IT IS REPORTED THAT TEN BIDS WERE RECEIVED ON ITEM B OF THE INVITATION RANGING IN PRICE FROM $13 TO $55 EACH. HENCE, IT REASONABLY MAY NOT BE CONCLUDED THAT YOUR BID OF $13 EACH WAS OUT OF LINE WITH THE NINE OTHER BIDS RECEIVED, PARTICULARLY SINCE IT WAS ONLY $3 AND $5.50 LOWER THAN THE SECOND AND THIRD LOW BIDS, RESPECTIVELY. IN VIEW OF THIS, AND SINCE NO OTHER INDICATION OF ERROR APPEARED ON THE FACE OF THE BID OR IN THE ATTENDANT CIRCUMSTANCES THERETO, THERE APPEARS NO BASIS TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON NOTICE OF THE PROBABILITY OF AN ERROR IN ITEM B OF YOUR BID.

THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE CONTRACT HAD BEEN ENTERED INTO. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT CAN GIVE AWAY THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH A CONTRACT.