B-129547, NOV. 16, 1956

B-129547: Nov 16, 1956

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TO THE SIMMONS COMPANY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27. THE BEDSTEADS WERE DELIVERED AND PAYMENT THEREFOR WAS MADE AT THE CONTRACT PRICE. YOU WERE ADVISED THAT THE SPRINGS WOULD BE FURNISHED BY ANOTHER COMPANY TO BE OF THE SIZE SHOWN ON THE PURCHASE ORDER. TAPPA REQUESTED CLARIFICATION AS TO HOW THE BED SPRINGS WOULD BE ATTACHED TO THE BEDSTEADS AND HE WAS ADVISED THAT THE BED SPRINGS WERE DESIGNED TO FIT THE ANGLE SIDE RAILS ON THE BED. TAPPA WAS NOTIFIED THAT THE BEDSTEADS MUST BE FURNISHED WITH SIDE RAILS AND THAT IF AN ERROR WAS MADE IN YOUR BID IN OMITTING THE SIDE RAILS YOU COULD FILE A CLAIM FOR THE DIFFERENCE. YOUR LETTER AND INVOICE WERE NOT ACCOMPANIED BY ANY WORKSHEETS.

B-129547, NOV. 16, 1956

TO THE SIMMONS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 27, 1956, AND TO PRIOR CORRESPONDENCE REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 12, 1956, WHICH DISALLOWED YOUR CLAIM FOR $201.40, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE YOU IN CONNECTION WITH CONTRACT NO. GS -O8S-6410, DATED FEBRUARY 28, 1955.

UNDER DATE OF FEBRUARY 16, 1955, THE FEDERAL SUPPLY SERVICE, PURCHASE DIVISION, GENERAL SERVICES ADMINISTRATION INVITED BIDS FOR FURNISHING UNDER ITEM 1A OF THE INVITATION 212 BEDSTEADS, RIGID FRAME, SINGLE SIZE, DESIGNED FOR DOUBLE DECKING IN ACCORDANCE WITH MILITARY SPECIFICATIONS MIL -F-15077A TYPE 1C AND DESIGNED TO ACCOMMODATE 60 COIL SEMI-DOUBLE DECK SPRINGS, SIZE 37 BY 73 INCHES. IN RESPONSE THERETO YOU OFFERED TO FURNISH AND DELIVER THE BEDS FOR THE TOTAL AMOUNT OF $3,476.80. THE BEDSTEADS WERE DELIVERED AND PAYMENT THEREFOR WAS MADE AT THE CONTRACT PRICE.

IT APPEARS THAT BY LETTER OF MARCH 24, 1955, YOU REQUESTED INFORMATION AS TO WHO WOULD FURNISH THE BED SPRINGS AND BY WIRE DATED MARCH 29, 1955, YOU WERE ADVISED THAT THE SPRINGS WOULD BE FURNISHED BY ANOTHER COMPANY TO BE OF THE SIZE SHOWN ON THE PURCHASE ORDER, STANDARD SPRING, CONTINUOUS ANGLE STEEL BOTTOM DESIGNED TO FIT ANGLE BED RAILS. IT APPEARS FURTHER THAT ON MARCH 31, 1955, YOUR MR. B. E. TAPPA REQUESTED CLARIFICATION AS TO HOW THE BED SPRINGS WOULD BE ATTACHED TO THE BEDSTEADS AND HE WAS ADVISED THAT THE BED SPRINGS WERE DESIGNED TO FIT THE ANGLE SIDE RAILS ON THE BED. AT THIS TIME MR. TAPPA STATED THAT YOUR BID DID NOT INCLUDE FURNISHING SIDE RAILS.

IT FURTHER APPEARS THAT BY LETTER OF APRIL 5, 1955, MR. TAPPA WAS NOTIFIED THAT THE BEDSTEADS MUST BE FURNISHED WITH SIDE RAILS AND THAT IF AN ERROR WAS MADE IN YOUR BID IN OMITTING THE SIDE RAILS YOU COULD FILE A CLAIM FOR THE DIFFERENCE.

THE RECORD SHOWS THAT BY LETTER OF NOVEMBER 11, 1955, YOU SUBMITTED YOUR INVOICE FOR $201.40 ALLEGED TO COVER THE AMOUNT OF THE ERROR CLAIMED ON THE BID. HOWEVER, YOUR LETTER AND INVOICE WERE NOT ACCOMPANIED BY ANY WORKSHEETS, OR OTHER SUCH ADDITIONAL INFORMATION TO SUBSTANTIATE YOUR CLAIM FOR AN ERROR IN BID. IT IS NOTED THAT THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOW BID WAS VERY SMALL AND THAT THERE WAS NOTHING TO HAVE PUT THE CONTRACTING OFFICER ON NOTICE THAT YOUR BID CONTAINED AN OBVIOUS ERROR WHICH SHOULD HAVE BEEN VERIFIED PRIOR TO AWARD.

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT BIDS WERE DESIRED FOR 212 BEDSTEADS DESIGNED TO ACCOMMODATE A CERTAIN TYPE OF SPRINGS. IT HAS BEEN ADMINISTRATIVELY REPORTED THAT IN ORDER TO ACCOMMODATE THE SPRINGS MENTIONED IN THE SPECIFICATIONS THE SIDE RAILS WERE NECESSARY. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THAT INVITATION WAS UPON YOU. SEE THE CASE OF FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163, WHEREIN THE COURT SAID---

"* * * THE PARTIES ARE DEALING AT ARMS LENGTH AND BIDDERS ARE PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN PERFORM THE WORK SPECIFIED AT A REASONABLE PROFIT. IF THEY FAIL TO DO SO, AS PLAINTIFF DID IN THIS CASE, THE GOVERNMENT CANNOT FOR THAT REASON BE HELD FOR THE RESULTING LOSS.'

BASED ON THE ADMINISTRATIVE REPORT THAT THE BEDSTEADS WERE REQUIRED TO BE EQUIPPED WITH SIDE RAILS IN ORDER TO ACCOMMODATE THE DESCRIBED SPRINGS, IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN YOUR BID 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, WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID---

"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE, WHEN THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE. THE PARTY COMPLAINING MUST HAVE EXERCISED AT LEAST THE DEGREE OF DILIGENCE "WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON.'"

SUCH ERROR AS WAS MADE IN YOUR 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 DOUGHTERTY V. UNITED STATES, 102 C.CLS. 249.

THE GOVERNMENT HAS RECEIVED IN THE PRESENT CASE ONLY THAT WHICH THE CONTRACT PROVIDED IT SHOULD RECEIVE AND HAVING PAID THE AGREED PRICE THEREFORE, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF AN AMOUNT IN ADDITION THERETO.