B-127668, MAY 3, 1956

B-127668: May 3, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED APRIL 18. TO HAVE BEEN MADE IN CONNECTION WITH A PRICE QUOTATION INVOLVING PURCHASE ORDER NO. IT IS REPORTED THAT UNDER DATE OF SEPTEMBER 9. WRITTEN QUOTATIONS WERE SOLICITED FROM THREE SUPPLIERS ON TEN BOOK ITEMS AND THAT QUOTATIONS WERE RECEIVED FROM TWO SUPPLIERS. CP -6-3150-D WAS AWARDED TO I. THE ORDER WAS ACCEPTED AND PERFORMANCE UNDERTAKEN. IT BEING STATED THAT THE QUOTATION OF $12.50 FOR THE THREE VOLUMES COVERED BY ITEM 6 SHOULD HAVE BEEN $10.50 FOR EACH VOLUME OR $31.50 FOR THE THREE VOLUMES. THE BOOKS TO BE SUPPLIED UNDER ITEM 6 WERE CLEARLY DESCRIBED IN THE REQUEST FOR QUOTATION. BIDDERS WERE REQUESTED TO SUBMIT QUOTATIONS FOR THE FURNISHING OF VOLUMES 1 TO 3 OF THE PROCEEDINGS OF THE FIRST INTERNATIONAL CONGRESS OF NEUROPATHOLOGY.

B-127668, MAY 3, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED APRIL 18, 1956, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO A MISTAKE IN BID ALLEGED BY I. R. MAXWELL AND COMPANY, INC., 122 EAST 55TH STREET, NEW YORK, NEW YORK, TO HAVE BEEN MADE IN CONNECTION WITH A PRICE QUOTATION INVOLVING PURCHASE ORDER NO. CP-6-3150-D, DATED OCTOBER 13, 1955, ISSUED BY THE ARMY PROCUREMENT AGENCY, ARMY MEDICAL CENTER, MARYLAND.

IT IS REPORTED THAT UNDER DATE OF SEPTEMBER 9, 1955, WRITTEN QUOTATIONS WERE SOLICITED FROM THREE SUPPLIERS ON TEN BOOK ITEMS AND THAT QUOTATIONS WERE RECEIVED FROM TWO SUPPLIERS, ONLY ONE BID HOWEVER BEING RECEIVED AS TO ITEM 6, HERE INVOLVED. UNDER DATE OF OCTOBER 13, 1955, CONTRACT NO. CP -6-3150-D WAS AWARDED TO I. R. MAXWELL AND COMPANY, INC., ON THE BASIS OF ITS WRITTEN QUOTATIONS. THE ORDER WAS ACCEPTED AND PERFORMANCE UNDERTAKEN.

BY LETTERS OF DECEMBER 18, 1955, AND JANUARY 24, 1956, THE CONTRACTOR ALLEGED AN ERROR IN THE PRICING OF ITEM 6 OF THE ORDER AND REQUESTED THAT THE ORDER BE CORRECTED, IT BEING STATED THAT THE QUOTATION OF $12.50 FOR THE THREE VOLUMES COVERED BY ITEM 6 SHOULD HAVE BEEN $10.50 FOR EACH VOLUME OR $31.50 FOR THE THREE VOLUMES.

THE BOOKS TO BE SUPPLIED UNDER ITEM 6 WERE CLEARLY DESCRIBED IN THE REQUEST FOR QUOTATION; BIDDERS WERE REQUESTED TO SUBMIT QUOTATIONS FOR THE FURNISHING OF VOLUMES 1 TO 3 OF THE PROCEEDINGS OF THE FIRST INTERNATIONAL CONGRESS OF NEUROPATHOLOGY, ROME, 1952, BY ROSENBERG AND SELLIER. RESPONSE TO THE REQUEST, I. R. MAXWELL AND COMPANY, INC., OFFERED TO FURNISH THE THREE VOLUMES AT THE FLAT PRICE OF $12.50.

THE ACCEPTANCE OF THE BID IN THIS CASE APPEARS TO HAVE BEEN IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. ACCORDINGLY, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS 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.

THERE IS NO SHOWING THAT THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF ANY MISTAKE PRIOR TO THE TIME WHEN THE CONTRACT IN THIS CASE WAS AWARDED. SINCE ONLY ONE BID WAS RECEIVED AS TO ITEM 6 THERE WAS NO BASIS FOR COMPARISON. THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ALLEGED ERROR WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT ENTITLED TO RELIEF. OGDEN AND DOUGHTERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE PAPERS TRANSMITTED WITH THE LETTER OF APRIL 18, 1956, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT AND RECOMMENDATION DATED MARCH 12, 1956, ARE RETURNED HEREWITH.