B-127325, APR. 25, 1956

B-127325, APR. 25, 1956

TO OLD VIRGINIA PACKING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 5, 1956, WITH ENCLOSURE, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 29, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $991.98, UNDER CONTRACT NO. DA -44-051-QM-9064, DATED AUGUST 22, 1955.

IN RESPONSE TO NOTICE OF INTENT TO PURCHASE NO. 177-56, ISSUED ON AUGUST 5, 1955, BY THE CHICAGO QUARTERMASTER MARKET CENTER, YOU SUBMITTED A BID DATED AUGUST 12, 1955, OFFERING TO FURNISH ITEM NO. 1 COVERING 1,000 DOZEN --- 2-POUND JARS--- OF A CERTAIN SPECIFIED TYPE OF BLACKBERRY JAM AT $4 PER DOZEN, OR FOR A TOTAL PRICE OF $4,000. YOUR BID WAS ACCEPTED BY THE RICHMOND QUARTERMASTER MARKET CENTER--- THE DESIGNATED CONTRACTING OFFICE- -- AS TO THIS ITEM, IN ADDITION TO ITEM NO. 12, ON AUGUST 22, 1955, IN THE TOTAL AMOUNT OF $10,000, THEREBY CONSUMMATING CONTRACT NO. DA-44-051-QM- 9064. IT IS REPORTED THAT ON OR ABOUT AUGUST 30, 1955, APPROXIMATELY SIX DAYS AFTER THE FORMAL CONTRACT WAS FORWARDED TO YOU FOR SIGNATURE, YOUR MR. S. B. DOWNING, ., VICE PRESIDENT, CALLED THE CONTRACTING OFFICE AND ADVISED THAT AN ERROR HAD BEEN MADE IN YOUR BID IN THAT THE PRICE FOR ITEM NO. 1 SHOULD HAVE BEEN $5 PER DOZEN INSTEAD OF $4 PER DOZEN QUOTED. UPON BEING ADVISED THAT NEITHER THE CHICAGO NOR RICHMOND QUARTERMASTER MARKET CENTER HAD AUTHORITY TO GRANT ANY RELIEF IN THE MATTER BUT THAT A FORMAL CLAIM LATER COULD BE FILED, YOU EXECUTED THE CONTRACT, MADE DELIVERY AND WERE PAID THE ORIGINAL CONTRACT PRICE. YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $991.98 WHICH REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT OF YOUR INTENDED BID PRICE ON 1002 DOZEN JARS DELIVERED AND THE AMOUNT PAID, CASH DISCOUNT CONSIDERED, WAS DISALLOWED BY THE SETTLEMENT OF FEBRUARY 29, 1956.

YOUR REQUEST FOR REVIEW APPEARS TO BE BASED ON THE PREMISE THAT THE ERROR WAS CALLED TO THE ATTENTION OF THE RICHMOND QUARTERMASTER CENTER PRIOR TO THE SIGNING OF THE CONTRACT WHICH LATER WAS EFFECTED WITH ASSURANCE OF THE MARKET CENTER'S SUPPORT OF ANY CLAIM FILED BY YOU.

THE BASIC QUESTION FOR CONSIDERATION IN CASES WHERE, AS HERE, THE ALLEGATION OF ERROR IS MADE SUBSEQUENT TO THE ACCEPTANCE OF THE BID IS NOT THE LEGAL SIGNIFICANCE TO BE GIVEN THE MERE FORMALITY OF AFFIXING YOUR SIGNATURE TO THE CONTRACT FORM ITSELF, OR WHETHER AN ERROR WAS, IN FACT, MADE IN THE BID, BUT RATHER WHETHER THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT. IN THIS CONNECTION, THE DEPARTMENT OF THE ARMY REPORTS THAT EIGHT OTHER BIDS WERE RECEIVED ON ITEM NO. 1 WHICH RANGED FROM $4.12 TO $5.66 A DOZEN. MOREOVER, IT IS FURTHER REPORTED THAT THE SECOND LOW BID OF $4.12 A DOZEN INVOLVED EVEN GREATER TRANSPORTATION COSTS THAN THE BID SUBMITTED BY YOU. HENCE, YOUR BID OF $4 A DOZEN FOR THIS ITEM WAS NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED. IN VIEW OF THIS, AND SINCE APPARENTLY THERE WAS NO INDICATION OF ERROR ON THE FACE OF THE BID ITSELF OR IN ANY OF THE OTHER ATTENDANT CIRCUMSTANCES THERETO, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR AND, THEREFORE, IT MUST BE CONCLUDED THAT THE BID WAS ACCEPTED IN GOOD FAITH. SUCH ACCEPTANCE, WITHOUT MORE, CONSUMMATED A VALID AND BINDING OBLIGATION WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO GIVE AWAY THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH A TRANSACTION.