B-126636, FEB. 2, 1956

B-126636: Feb 2, 1956

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DISTRICT OF COLUMBIA: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11. WAS AWARDED. THE BID OF THE INDUSTRIAL GARMENT COMPANY WAS NOT FORWARDED HERE BUT IT APPEARS FROM THE ABSTRACT OF BIDS THAT THE COMPANY OFFERED TO FURNISH THE DENIM UNDER ITEM 4 AT A PRICE OF $0.3389 PER YARD. THE BID OF THE COMPANY AS TO ITEM 4 WAS ACCEPTED ON DECEMBER 9. PURCHASE ORDER NO. 36553 AND THE TRIPLICATE COPY OF THE COMPANY'S BID WERE MAILED TO THE COMPANY. THE INDUSTRIAL GARMENT COMPANY ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT THE PRICE OF THE DENIM COVERED BY ITEM 4 SHOULD HAVE BEEN $0.3889 PER YARD AND THAT THE ERROR OCCURRED WHEN IT WAS TRANSFERRING ITS BID PRICE FROM ITS OFFICE COPY TO THE BID SUBMITTED.

B-126636, FEB. 2, 1956

TO HONORABLE SAMUEL SPENCER, PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR THE INDUSTRIAL GARMENT COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. S-1882 DATED DECEMBER 9, 1955, WAS AWARDED.

BY INVITATION NO. 18491-H, THE PROCUREMENT OFFICE REQUESTED BIDS IN TRIPLICATE--- TO BE OPENED NOVEMBER 22, 1955--- FOR FURNISHING, AMONG OTHER ITEMS, 15,000 LINEAL YARDS OF 8 OUNCE BLUE DENIM, ITEM 4. THE BID OF THE INDUSTRIAL GARMENT COMPANY WAS NOT FORWARDED HERE BUT IT APPEARS FROM THE ABSTRACT OF BIDS THAT THE COMPANY OFFERED TO FURNISH THE DENIM UNDER ITEM 4 AT A PRICE OF $0.3389 PER YARD. THE BID OF THE COMPANY AS TO ITEM 4 WAS ACCEPTED ON DECEMBER 9, 1955, AND ON THAT DATE, PURCHASE ORDER NO. 36553 AND THE TRIPLICATE COPY OF THE COMPANY'S BID WERE MAILED TO THE COMPANY.

BY LETTER DATED DECEMBER 12, 1955, THE INDUSTRIAL GARMENT COMPANY ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT THE PRICE OF THE DENIM COVERED BY ITEM 4 SHOULD HAVE BEEN $0.3889 PER YARD AND THAT THE ERROR OCCURRED WHEN IT WAS TRANSFERRING ITS BID PRICE FROM ITS OFFICE COPY TO THE BID SUBMITTED. THE COMPANY STATED THAT THE PRICE OF THE DENIM AT THE MILL IS $0.379 PER YARD AND THAT ON SEPTEMBER 8, 1955, IN RESPONSE TO INVITATION NO. 18357-H, IT QUOTED A PRICE OF $0.38399 PER YARD FOR DENIM IDENTICAL TO THAT REQUIRED UNDER ITEM 4 OF THE SUBJECT INVITATION. SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY BY LETTER DATED DECEMBER 21, 1955, IN WHICH THE COMPANY'S SUPPLIER CONFIRMED ITS QUOTATION OF $0.375 PER YARD FOR 15,000 YARDS OF 8 OUNCE SANFORIZED BLUE DENIM, WHICH WAS MADE ON NOVEMBER 22, 1955. ALSO, THE COMPANY FURNISHED THE PRINTED PRICE LIST OF ANOTHER SUPPLIER AND SUCH PRICE LIST SPECIFIES A PRICE OF $0.375 PER YARD FOR 8 OUNCE SANFORIZED BLUE DENIM.

IN YOUR LETTER OF JANUARY 11 YOU STATE---

"THE DISTRICT OF COLUMBIA REQUIRES THAT BIDS BE SUBMITTED IN TRIPLICATE. WHEN A BID IS ACCEPTED THE ORIGINAL BID (WHICH IS STAMPED "ORIGINAL" ON THE FACE OF THE INVITATION BEFORE IT IS ISSUED) AS WELL AS THE TWO COPIES THEREOF ARE EXECUTED BY THE DISTRICT CONTRACTING OFFICER, AFTER WHICH, THE ORIGINAL IS RETAINED IN THE D.C. PROCUREMENT OFFICE FILES, ONE COPY IS FORWARDED TO THE D.C. ACCOUNTING OFFICE FOR THEIR RECORDS, AND ONE COPY IS FORWARDED TO THE CONTRACTOR, ACCOMPANIED BY THE COVERING PURCHASE ORDER.

"SUBSEQUENT TO RECEIPT OF THE CONTRACTOR'S LETTER OF DECEMBER 22, 1955, REFERRED TO ABOVE, A CHECK MADE OF THE PRICES INSERTED BY THE BIDDER ON THE ORIGINAL BID AND THE D.C. ACCOUNTING OFFICE'S COPY OF THE BID DISCLOSED THAT THE PRICE OF $0.3389 APPEARS ON THE ORIGINAL BID, AND $0.3889 APPEARS ON THE ACCOUNTING OFFICE'S COPY. THIS DIFFERENCE IN PRICES WAS NOT PREVIOUSLY NOTICED.

"THERE IS ALSO FOR CONSIDERATION THE FACT THAT THE RANGE OF BID PRICES ON THE ITEM IN QUESTION, WHICH ARE LISTED BELOW, IS NOT SUCH AS TO PLACE THE CONTRACTING OFFICER ON NOTICE THAT AN ERROR HAD BEEN MADE.

$0.3389 $0.3756

.3568 .3789

.3645 .379

.3657 .3844

.389"

PARAGRAPH 3 OF INSTRUCTIONS TO BIDDERS PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"3. PREPARATION OF BIDS:--- BIDS MUST BE EXECUTED AND SUBMITTED IN TRIPLICATE. YOUR BID, IF ACCEPTED, WILL BECOME THE CONTRACT, AND ONE COPY OF THE CONTRACT WILL BE FORWARDED TO THE SUCCESSFUL BIDDER WITH THE NOTICE OF AWARD AND/OR PURCHASE ORDER. THE COPY MARKED "ORIGINAL" WILL BE GOVERNING SHOULD THERE BE A VARIANCE BETWEEN THE COPY OF THE BID AND OTHER COPIES SUBMITTED BY THE BIDDER. * * *"

IN VIEW OF THE PROVISIONS OF THIS PARAGRAPH, IT MUST BE CONCLUDED THAT THE PRICE SHOWN IN THE ORIGINAL COPY OF THE COMPANY'S BID FOR ITEM 4 IS CONTROLLING UNLESS IT COULD BE SAID THAT A VALID AND BINDING CONTRACT WAS NOT CONSUMMATED BY ACCEPTANCE OF THE BID.

THE EIGHT OTHER BIDDERS ON ITEM 4 QUOTED PRICES RANGING FROM $0.3568 PER YARD TO $0.389 PER YARD. THE DIFFERENCE BETWEEN THE BID OF THE INDUSTRIAL GARMENT COMPANY OF $0.3389 PER YARD FOR ITEM 4 AND THE OTHER BIDS ON THAT ITEM DOES NOT APPEAR TO HAVE BEEN SUFFICIENT TO HAVE PLACED A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. WHILE IT NOW APPEARS THAT THE COMPANY'S BID ON ITEM 4 WAS ERRONEOUS, THE CONTRACTING OFFICER APPARENTLY HAD NO KNOWLEDGE PRIOR TO AWARD OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID PRICE. 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 RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF THE COMPANY TRANSPOSED A FIGURE OF ITS BID PRICE IN TRANSFERRING SUCH PRICE FROM ITS OFFICE COPY TO THE ORIGINAL COPY OF ITS BID, AS ALLEGED, SUCH ERROR WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE COMPANY AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. 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 PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. S-1882, AS REQUESTED BY THE INDUSTRIAL GARMENT COMPANY.