B-128483, JUL. 16, 1956

B-128483: Jul 16, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 29. TO HAVE BEEN MADE IN ITS BID OPENED ON APRIL 26. THE ABSTRACT OF BIDS SHOWS THAT ON ITEM 3 NINE OTHER BIDS WERE RECEIVED. WAS ACCEPTED ON MAY 4. IT WAS ALLEGED THAT THE PRICE QUOTED WAS BASED ON AN OUTDATED PRICE LIST OF THE PARR INSTRUMENT COMPANY ISSUED IN 1950. THAT THE CORRECT PRICE SHOULD HAVE BEEN $1. THEREAFTER THE CORPORATION SUBMITTED COPIES OF THE OLD AND NEW PRICE LISTS WHICH INDICATE THAT AN ERROR WAS MADE AS ALLEGED. THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID. WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER.

B-128483, JUL. 16, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 29, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY SCIENTIFIC CLASS APPARATUS COMPANY, INC., TO HAVE BEEN MADE IN ITS BID OPENED ON APRIL 26, 1956, AND ACCEPTED ON MAY 4, 1956, BY PURCHASE ORDER NO. FD6-404-5947.

BY BIOLOGICAL WARFARE LABORATORIES, FORT DETRICK, FREDERICK, MARYLAND, BY INVITATION NO. 18-064-56-115, REQUESTED BIDS ON SEVERAL ITEMS OF SCIENTIFIC EQUIPMENT. ITEM NO. 3 COVERED ONE APPARATUS, CATALYTIC HYDROGENATION; STIRRER TYPE; MEDIUM PRESSURE; FOR OPERATION ON 115 VOLT, 60 CYCLE A.C., PARR INSTRUMENT NO. 4501 OR EQUIVALENT. IN RESPONSE TO THE INVITATION, SCIENTIFIC CLASS APPARATUS COMPANY, INC., SUBMITTED A BID DATED APRIL 24, 1956, OFFERING TO FURNISH ITEM 3 FOR $1,052. THE ABSTRACT OF BIDS SHOWS THAT ON ITEM 3 NINE OTHER BIDS WERE RECEIVED; THAT EIGHT OF THE BIDS, APPARENTLY ALL FROM DEALERS, QUOTED THE SAME PRICE, $1,124; AND THAT THE OTHER BIDDER, THE PARR INSTRUMENT COMPANY, PRESUMABLY THE MANUFACTURER OF THE INSTRUMENT SPECIFIED AS THE STANDARD, QUOTED A PRICE OF $1,133.72. THE BID OF THE SCIENTIFIC GLASS APPARATUS COMPANY, BEING THE LOWEST RECEIVED, WAS ACCEPTED ON MAY 4, 1956, BY PURCHASE ORDER NO. FD6-404-5947.

BY LETTER DATED MAY 22, 1956, THE SCIENTIFIC GLASS APPARATUS COMPANY, INC., ADVISED THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE IN ITS BID ON ITEM 3. IT WAS ALLEGED THAT THE PRICE QUOTED WAS BASED ON AN OUTDATED PRICE LIST OF THE PARR INSTRUMENT COMPANY ISSUED IN 1950, AND THAT THE CORRECT PRICE SHOULD HAVE BEEN $1,124, AS SHOWN BY PRICE LIST ISSUED JULY 1, 1955. THEREAFTER THE CORPORATION SUBMITTED COPIES OF THE OLD AND NEW PRICE LISTS WHICH INDICATE THAT AN ERROR WAS MADE AS ALLEGED. THE CORPORATION REQUESTED THAT IT BE PERMITTED TO DELIVER THE ITEMS AT $1,124, OR THAT THE CONTRACT BE CANCELLED.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THE CONTRACTING OFFICER REPORTS THAT HE WAS NOT ON NOTICE OF THE POSSIBILITY OF ERROR PRIOR TO AWARD AND IN VIEW OF THE RELATIVELY SMALL DIFFERENCE BETWEEN THE BIDS, THERE IS NO BASIS TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE ERROR. WHILE IT MAY BE THAT AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS MAY HAVE BEEN MADE WAS UNILATERAL--- NOT MUTUAL --- AND THEREFORE AFFORDS NO BASIS FOR GRANTING RELIEF TO THE CORPORATION. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR RELIEVING SCIENTIFIC GLASS APPARATUS COMPANY, INC., FROM FURNISHING THE EQUIPMENT COVERED BY ITEM 3 FOR THE AMOUNT SPECIFIED IN ITS ACCEPTED BID.