B-127644, APR. 30, 1956

B-127644: Apr 30, 1956

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TO THE HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED APRIL 18. WAS BASED. IS REPORTED THAT SOILTEST. THE BID WAS ACCEPTED ON DECEMBER 28. IS $118. THE BASIC QUESTION FOR DETERMINATION IS NOT WHETHER THE CONTRACTOR MADE AN ERROR IN ITS PROPOSAL. WAS RECEIVED ON THE ITEM IN QUESTION. THERE WAS NOTHING APPEARING IN THE FACE OF THE CORPORATION'SPROPOSAL TO INDICATE THAT IT WAS NOT AS INTENDED. THE CONTRACTING OFFICER WAS NOT APPRISED OF ANY FAILURE ON THE CONTRACTOR'S PART TO FULLY READ AND UNDERSTAND THE SPECIFICATIONS. WHICH WERE CLEAR AND UNAMBIGUOUS AS TO THE ATTACHMENTS REQUIRED. THE DIFFERENCE BETWEEN THE PRICES QUOTED WAS NOT GREAT ENOUGH TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR OR TO WARRANT THE CONCLUSION THAT HE SHOULD HAVE REQUESTED VERIFICATION OF THE BID BEFORE AWARD.

B-127644, APR. 30, 1956

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED APRIL 18, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS) RELATIVE TO AN ALLEGED ERROR ON ITEM NO. 1, REQUISITION NO. L-243, OF A PROPOSAL DATED DECEMBER 15, 1955, SUBMITTED BY SOILTEST, INC., ON WHICH UNNUMBERED CONTRACT, PURCHASE ORDER NO. 106-4025, DATED DECEMBER 28, 1955, WAS BASED.

THE EASTERN OCEAN DISTRICT, CORPS OF ENGINEERS, UNDER DATE OF DECEMBER 7, 1955, REQUESTED PROPOSALS ON EIGHT ITEMS TO BE PROCURED UNDER REQUISITION NO. L-243 AND TWELVE ITEMS TO BE PROCURED PURSUANT TO REQUISITION NO. L- 243 AND TWELVE ITEMS TO BE PROCURED PURSUANT TO REQUISITION NO. L-244. IS REPORTED THAT SOILTEST, INC., SUBMITTED PROPOSALS ON SEVERAL ITEMS UNDER EACH REQUISITION, INCLUDING ONE OF $470 FOR FURNISHING ONE GILSON TESTING MACHINE WITH ATTACHMENTS AS SPECIFIED UNDER ITEM NO. 1, REQUISITION NO. L-243. THE BID WAS ACCEPTED ON DECEMBER 28, 1955, AS TO NINE ITEMS OF REQUISITION NO. L 244 AND THREE ITEMS, INCLUDING ITEM NO. 1, OF REQUISITION NO. L-243.

BY LETTER DATED JANUARY 10, 1956, THE CORPORATION ADVISED THAT IT HAD MADE AN ERROR AMOUNTING TO $118 IN ITS OFFER ON ITEM NO. 1, DUE TO ITS FAILURE TO TAKE INTO CONSIDERATION THE COMPLETE SPECIFICATIONS AS TO THE ATTACHMENTS REQUIRED. STATING THAT THE ACTUAL COST OF THE ATTACHMENTS NOT ALLOWED FOR IN THE PRICE QUOTED, WITHOUT PROFIT, IS $118, IT REQUESTED THAT AN INCREASE OF $118, OR FROM $470 TO $588, BE AUTHORIZED IN THE CONTRACT PRICE.

THE BASIC QUESTION FOR DETERMINATION IS NOT WHETHER THE CONTRACTOR MADE AN ERROR IN ITS PROPOSAL, BUT WHETHER A VALID AND BINDING CONTRACT RESULTED FROM THE ACCEPTANCE THEREOF. THE ABSTRACT OF PROPOSALS SHOWS THAT ONLY ONE OTHER QUOTATION OF $541, WAS RECEIVED ON THE ITEM IN QUESTION. THERE WAS NOTHING APPEARING IN THE FACE OF THE CORPORATION'SPROPOSAL TO INDICATE THAT IT WAS NOT AS INTENDED. PRIOR TO THE RECEIPT OF THE CORPORATION'S LETTER OF JANUARY 10, 1956, THE CONTRACTING OFFICER WAS NOT APPRISED OF ANY FAILURE ON THE CONTRACTOR'S PART TO FULLY READ AND UNDERSTAND THE SPECIFICATIONS, WHICH WERE CLEAR AND UNAMBIGUOUS AS TO THE ATTACHMENTS REQUIRED. THE DIFFERENCE BETWEEN THE PRICES QUOTED WAS NOT GREAT ENOUGH TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR OR TO WARRANT THE CONCLUSION THAT HE SHOULD HAVE REQUESTED VERIFICATION OF THE BID BEFORE AWARD.

THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF A BID IS, OF COURSE, THAT OF THE BIDDER, AND A MISTAKE IN BID, TO BE AVAILABLE IN RELIEVING HIM UNDER A BID ACCEPTED WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR, MUST NOT HAVE ARISEN FROM NEGLIGENCE OR A FAILURE TO EXERCISE AT LEAST THAT DEGREE OF DILIGENCE WHICH FAIRLY MAY BE EXPECTED FROM A REASONABLE PERSON. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61; 20 COMP. GEN. 652.

THE ALLEGATION OF ERROR IN THIS CASE WAS NOT RECEIVED UNTIL MORE THAN TWO WEEKS AFTER THE PROPOSAL HAD BEEN ACCEPTED IN GOOD FAITH. THE ACCEPTANCE OF THE OFFER AS MADE, UNDER THE CIRCUMSTANCES HERE 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; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, NO LEGAL BASIS APPEARS FOR RELEASING SOILTEST, INC. FROM ITS OBLIGATION TO FURNISH THE MACHINE, WITH THE ATTACHMENTS PLAINLY CALLED FOR UNDER ITEM NO. 1, REQUISITION NO. L-243, AT THE PRICE SPECIFIED THEREFOR IN THE CONTRACT.

THE PAPERS, WITH THE EXCEPTION OF THE REPORT OF THE DISTRICT ENGINEER TO THE CHIEF OF ENGINEERS DATED FEBRUARY 6, 1956, A COPY OF THE SHORT STATEMENT OF THE CONTRACTING OFFICER DATED MARCH 22, 1956, A PHOTOSTATIC COPY OF THE CONTRACTOR'S LETTER OF JANUARY 10, 1956, AND COPIES OF THE REQUEST FOR PROPOSALS, THE ACCEPTANCE OF THE SOILTEST, INC., PROPOSAL, AND THE ABSTRACT OF PROPOSALS, ARE RETURNED HEREWITH.