B-127600, JUN. 5, 1956

B-127600, JUN. 5, 1956

TO S. DIX SUPPLY CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1956, RELATIVE TO AN ALLEGED ERROR IN THE PRICE QUOTED ON ITEM NO. 4 OF YOUR BID DATED MARCH 19, 1956, ON WHICH PURCHASE ORDER NO. 6692-PH-56-62 DATED MARCH 26, 1956, WAS ISSUED BY THE ARMY SIGNAL SUPPLY AGENCY, FORT MONMOUTH, NEW JERSEY. YOU REQUESTED THEREIN AN INCREASE IN THE CONTRACT UNIT PRICE FROM $0.115 TO $0.397.

THE RECORD SHOWS THAT IN RESPONSE TO PROPOSAL REQUEST NO. 56-ELM/P 24764, YOU SUBMITTED A WRITTEN QUOTATION DATED MARCH 19, 1956, ON FURNISHING THE SEVEN ITEMS OF SUPPLIES STATED TO BE REQUIRED BY THE GOVERNMENT, INCLUDING ITEM NO. 4, 175 COPPER ELBOWS AS SPECIFIED, AT $0.115 EACH. ONLY ONE OTHER BID OF $0.33 EACH WAS RECEIVED ON ITEM NO. 4. ALL SEVEN ITEMS WERE AWARDED TO YOUR CORPORATION AND PURCHASE ORDER NO. 6692-PH-56-92 THEREFOR WAS ISSUED ON MARCH 26, 1956.

BY LETTER DATED MARCH 29, 1956, YOU ADVISED THAT YOU HAD DISCOVERED AN ERROR IN YOUR BID ON ITEM NO. 4 IN THAT THE BID THEREON SHOULD HAVE BEEN $0.397 INSTEAD OF $0.115 PER ELBOW. THEREFORE, YOU REQUESTED THAT A CHANGE ORDER BE ISSUED CORRECTING THE CONTRACT PRICE ACCORDINGLY.

PURPORTEDLY IN SUPPORT OF THE ALLEGATION OF ERROR AND THE ALLEGED INTENDED BID PRICE YOU FORWARDED, BY LETTER DATED APRIL 24, 1956, TO THIS OFFICE, THE INDIANA BRASS COMPANY'S PRICE SCHEDULE NO. 3, ISSUED MARCH 26, 1956, WHICH PROVIDES ON ITS FACE FOR THE CANCELLATION OF PRICE SCHEDULE NO. 2 OF JANUARY 30, 1956, AND SHOWS THE LIST PRICE OF THE ELBOW HERE INVOLVED TO BE $0.397 EACH. HOWEVER, IT IS NOTED THAT THE PRICE SCHEDULE FURNISHED POST DATES THE DATE OF THE BID AND, CONSEQUENTLY, EVEN IF THE INDIANA BRASS COMPANY IS YOUR SUPPLIER, WHICH IS NOT SHOWN, THE PRICE SCHEDULE FORWARDED DOES NOT IN ITSELF ESTABLISH THE APPLICABLE LIST PRICE EFFECTIVE ON MARCH 19, 1956, THE DATE OF THE BID, NOR THAT YOUR INTENDED BID PRICE WAS $0.397 PER ELBOW AS ALLEGED.

THE INSUFFICIENCY OF THE PRICE SCHEDULE FURNISHED IS, HOWEVER, OF LITTLE, IF ANY, IMPORTANCE, SINCE THE BASIC QUESTION FOR DETERMINATION IS NOT WHETHER YOU MADE A MISTAKE BY QUOTING THE WRONG PRICE ON ITEM NO. 4, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF YOUR BID. IN HIS FACTUAL REPORT DATED MAY 7, 1956, THE CONTRACTING OFFICER STATES THAT HE DID NOT NOTICE OR HAVE ANY REASON TO SUSPECT, PRIOR TO AWARD, THAT THERE WAS AN ERROR IN YOUR FIRM WRITTEN BID. WHILE THERE IS A CONSIDERABLE DIFFERENCE BETWEEN YOUR BID OF $0.115 EACH AND THE ONLY OTHER BID OF $0.33 EACH, THE DIFFERENCE IS NOT GREAT ENOUGH TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER, NOTWITHSTANDING HIS STATEMENT TO THE CONTRARY, SHOULD HAVE NOTICED THE PROBABILITY OF ERROR IN THE LOWER OF THE TWO BIDS RECEIVED. NO ERROR WAS APPARENT ON THE FACE OF YOUR BID AND, ORDINARILY, NO FAIR COMPARISON WITH OTHER BIDS CAN BE MADE WHERE ONLY TWO WIDELY VARIANT BIDS ARE RECEIVED, THERE BEING NO MORE REASON FOR CONSIDERING THE LOW BID TOO LOW THAN FOR CONSIDERING THAT THE MISTAKE WAS MADE BY THE HIGH BIDDER IN QUOTING A PRICE TOO HIGH. SEE 20 COMP. GEN. 286.

THE RESPONSIBILITY FOR PREPARATION AND SUBMISSION OF A BID IS UPON THE BIDDER. IF IN THIS CASE, YOU QUOTED A PRICE FOR ITEM NO. 4 OTHER THAN YOUR APPLICABLE SELLING PRICE, THE ERROR WAS DUE SOLELY TO THE LACK OF PROPER CARE ON YOUR PART AND WAS NOT INDUCED OR CONTRIBUTED TO, IN ANY MANNER, BY THE GOVERNMENT. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61. SUCH ERROR AS WAS MADE WAS UNILATERAL, NOT MUTUAL, AND THEREFORE DOES NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER 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.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR RELEASING YOU FROM YOUR OBLIGATION TO FURNISH THE COPPER ELBOWS CALLED FOR UNDER ITEM NO. 4 AT THE PRICE SPECIFIED THEREFOR IN THE PURCHASE ORDER.