B-128909, OCT. 30, 1956

B-128909: Oct 30, 1956

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 26. WHEREIN YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR BID ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER NO. 56-13675) DATED JUNE 25. WAS AWARDED. YOUR BID WAS ACCEPTED ON JUNE 25. PURCHASE ORDER NO. 56-13675 WAS ISSUED REQUESTING DELIVERY OF THE PHASEMETER. THE CONTRACTING OFFICER ADVISED YOU THAT HE WAS WITHOUT AUTHORITY TO ALLOW AN INCREASE IN THE CONTRACT PRICE OF THE PHASEMETER. A COPY OF A WORKSHEET SHOWING HOW THE PRICE FOR THE TYPE 205A PRECISION PHASE DETECTOR WAS COMPUTED AND COPIES OF DESCRIPTIVE BULLETINS ON THE REQUIRED EQUIPMENT. THE RESPONSIBILITY FOR PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU.

B-128909, OCT. 30, 1956

TO ADVANCE ELECTRONICS LAB., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1956, WHEREIN YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR BID ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER NO. 56-13675) DATED JUNE 25, 1956, WAS AWARDED.

IN RESPONSE TO REQUEST NO. 332, ISSUED BY THE PROCUREMENT OFFICE, ABERDEEN PROVING GROUND, MARYLAND, YOU SUBMITTED A BID DATED JUNE 13, 1956, OFFERING TO FURNISH THE TYPE 205A PHASEMETER DESCRIBED IN THE REQUEST AT A PRICE OF $495. YOUR BID WAS ACCEPTED ON JUNE 25, 1956, AND PURCHASE ORDER NO. 56-13675 WAS ISSUED REQUESTING DELIVERY OF THE PHASEMETER.

BY LETTER DATED JUNE 27, 1956, YOU ADVISED THE PROCUREMENT OFFICE THAT YOU HAD MADE AN ERROR IN YOUR QUOTATION ON THE PHASEMETER AND REQUESTED AN INCREASE IN THE CONTRACT PRICE OF THAT ITEM. BY LETTER DATED JULY 23, 1956, THE CONTRACTING OFFICER ADVISED YOU THAT HE WAS WITHOUT AUTHORITY TO ALLOW AN INCREASE IN THE CONTRACT PRICE OF THE PHASEMETER, BUT THAT AFTER DELIVERY OF THAT ITEM YOU COULD FILE A CLAIM FOR ADDITIONAL COMPENSATION WITH THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE.

IN A LETTER DATED JULY 26, 1956, ADDRESSED TO THIS OFFICE, YOU REQUESTED THAT THE CONTRACT PRICE OF THE PHASEMETER BE INCREASED FROM $495 TO $595 AND STATED THAT $10 OF THE REQUESTED AMOUNT REPRESENTS SHIPPING EXPENSES. IN SUPPORT OF YOUR ALLEGATION OF ERROR, YOU FURNISHED BY LETTER DATED AUGUST 29, 1956, A COPY OF A WORKSHEET SHOWING HOW THE PRICE FOR THE TYPE 205A PRECISION PHASE DETECTOR WAS COMPUTED AND COPIES OF DESCRIPTIVE BULLETINS ON THE REQUIRED EQUIPMENT.

THE RESPONSIBILITY FOR PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED, YOU MADE A CLERICAL ERROR, SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID 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. ALSO, SEE 20 COMP. GEN. 652, AND 26 ID. 415.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID, BUT WHETHER THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT. SINCE YOUR BID WAS THE ONLY ONE RECEIVED, NO BASIS FOR COMPARISON OF PRICES WAS AVAILABLE TO THE CONTRACTING OFFICER FOR APPRAISAL PURPOSES. IN VIEW OF THESE CIRCUMSTANCES, IT MAY NOT REASONABLY BE CONCLUDED THAT THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID AND, THEREFORE, SHOULD HAVE REQUESTED A VERIFICATION PRIOR TO ACCEPTANCE. WHILE IT NOW APPEARS THAT YOUR BID WAS ERRONEOUS, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY YOU IN COMPUTING YOUR BID PRICE FOR THE EQUIPMENT. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY YOU UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID IN THE CIRCUMSTANCES INVOLVED CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE CO., 245 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE IS NO LEGAL BASIS FOR INCREASING THE PRICE SPECIFIED IN PURCHASE ORDER NO. 56 13675. HAVE NO LEGAL AUTHORITY TO RELIEVE CONTRACTORS FROM THE CONSEQUENCES OF AN ERRONEOUS BID AFTER IT HAS BEEN ACCEPTED, UNLESS THE ACCEPTANCE OF THE BID WAS UNDER SUCH CIRCUMSTANCES AS WOULD JUSTIFY THE IMPUTATION OF BAD FAITH TO THE OFFICER ACCEPTING IT. ..END :