B-130244, JAN. 22, 1957

B-130244: Jan 22, 1957

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TO DALZIEL PLUMBING SUPPLIES: REFERENCE IS MADE TO YOUR LETTER TO THIS OFFICE DATED NOVEMBER 30. IN RESPONSE THERETO FOUR BIDS WERE RECEIVED ON ITEM NO. 7 AS FOLLOWS: TABLE BIDDER NO. 2. WAS REJECTED AS NOT BEING RESPONSIVE TO THE ADVERTISED SPECIFICATIONS. IN THAT THE MATERIAL OFFERED WAS REGULAR ENAMELED LAVATORIES IN LIEU OF RESISTING ENAMEL. HEYMANS OF YOUR CORPORATION WAS CONTACTED BY TELEPHONE BY MR. HEYMANS WAS REQUESTED TO VERIFY THE BID PRICE ON ITEM NO. 7 AS TO WHETHER THE MATERIAL WAS ACCORDING TO SPECIFICATIONS. ALSO TO VERIFY WHETHER OR NOT THE LAVATORY OFFERED WAS OF A REGULAR FINISH OR ACID RESISTING FINISH. THAT THE BID PRICE AS QUOTED WAS CORRECT. SINCE THE CONTRACTING OFFICER HAD RECEIVED CONFIRMATION FROM THE BIDDER THAT THE PRICE WAS CORRECT AND THAT THE EQUIPMENT WAS IN ACCORDANCE WITH THE SPECIFICATIONS.

B-130244, JAN. 22, 1957

TO DALZIEL PLUMBING SUPPLIES:

REFERENCE IS MADE TO YOUR LETTER TO THIS OFFICE DATED NOVEMBER 30, 1956, REQUESTING RECONSIDERATION OF SETTLEMENT DATED OCTOBER 23, 1956, WHICH DISALLOWED YOUR CLAIM FOR $410.80 BASED ON AN ALLEGED MISTAKE IN ABID SUBMITTED IN RESPONSE TO INVITATION TO BID NO. ENG. 04-203-55-647, TO FURNISH PLUMBING SUPPLIES TO THE CORPS OF ENGINEERS, UNITED STATES ARMY.

IN YOUR LETTER OF OCTOBER 14, 1955, TO THIS OFFICE, YOU STATE THAT YOU INCORRECTLY INTERPRETED THE SPECIFICATIONS.

ITEM NO. 7 OF THE INVITATION CALLED FOR FURNISHING F.O.B. DESTINATION, RICHMOND, CALIFORNIA, 52 CAST IRON ENAMELED LAVATORIES IN ACCORDANCE WITH FEDERAL SPECIFICATIONS W.W.-P-5416, DATED SEPTEMBER 1954. IN RESPONSE THERETO FOUR BIDS WERE RECEIVED ON ITEM NO. 7 AS FOLLOWS:

TABLE

BIDDER NO.

2. CRANE CO. 40.98

3. OAKLAND PLUMBING SUPPLY CO. 36.31

4. DALZIEL PLUMBING SUPPLIES 29.85

6. TAY-HOLBROOK, INC. 29.22

THE APPARENT LOW BID OF TAY-HOLBROOK, INC., WAS REJECTED AS NOT BEING RESPONSIVE TO THE ADVERTISED SPECIFICATIONS, IN THAT THE MATERIAL OFFERED WAS REGULAR ENAMELED LAVATORIES IN LIEU OF RESISTING ENAMEL. EXAMINATION OF ALL BIDS INDICATED, BY REASON OF THE LOW PRICE COMPARED TO OTHER BIDDERS, THAT THE POSSIBILITY OF A MISTAKE EXISTED IN THE BID OF YOUR CORPORATION, THE APPARENT LOW RESPONSIVE BID. ACCORDINGLY, ON JUNE 3, 1955, PRIOR TO THE AWARD, MR. HEYMANS OF YOUR CORPORATION WAS CONTACTED BY TELEPHONE BY MR. A. D. CAMPOS OF THE OFFICE OF THE CONTRACTING OFFICER. MR. HEYMANS WAS REQUESTED TO VERIFY THE BID PRICE ON ITEM NO. 7 AS TO WHETHER THE MATERIAL WAS ACCORDING TO SPECIFICATIONS, AND ALSO TO VERIFY WHETHER OR NOT THE LAVATORY OFFERED WAS OF A REGULAR FINISH OR ACID RESISTING FINISH. ACCORDING TO MR. CAMPOS, MR. HEYMANS STATED THAT AN ACID RESISTING LAVATORY WOULD BE FURNISHED, THAT THE BID PRICE AS QUOTED WAS CORRECT, AND THE MATERIAL WOULD BE IN ACCORDANCE WITH THE SPECIFICATIONS. ACCORDINGLY, SINCE THE CONTRACTING OFFICER HAD RECEIVED CONFIRMATION FROM THE BIDDER THAT THE PRICE WAS CORRECT AND THAT THE EQUIPMENT WAS IN ACCORDANCE WITH THE SPECIFICATIONS, AWARD OF THE CONTRACT WAS MADE TO YOUR CORPORATION BY NOTICE OF AWARD, DATED JUNE 6, 1955, THE DATE OF THE CONTRACT.

ITEM 7 OF SAID CONTRACT REFERRING TO THE LAVATORY CONTAINS THIS LANGUAGE: "SHALL BE OUTFIT NO. EL20B, FIG NO. 1102 AND AS DESCRIBED IN PARAGRAPHS 11.6 THROUGH 11.6.6 OF ABOVE CITED SPECIFICATION.' PARAGRAPH 11.6.2 OF SAID SPECIFICATIONS CLEARLY STATES "THE FIXTURES SHALL BE ENAMELED ON THE INSIDE AND OVER APRON, RIM AND BACK WITH ACID RESISTING ENAMEL.' THE RECORD SHOWS DELIVERY OF THE EQUIPMENT F.O.B. DESTINATION AND PAYMENT ON D.O. VOUCHER NO. 7308, IN THE AMOUNT OF THE BID PRICE, LESS DISCOUNT.

THE RECORD INDICATES THAT IN RESPONSE TO AN INVITATION FOR BIDS, YOU, IN AN UNQUALIFIED BID, OFFERED TO FURNISH THE LAVATORIES IN ACCORDANCE WITH THE AFORESAID SPECIFICATIONS AND THAT THE GOVERNMENT PRIOR TO THE AWARD, ON THE SUSPICION OF A POSSIBILITY OF A MISTAKE, AS REFLECTED IN THE AMOUNT OF THE BID, REQUESTED BY TELEPHONE THAT YOU VERIFY THE PRICE OF YOUR BID AND WHETHER THE LAVATORIES WERE OF A REGULAR FINISH OR ACID RESISTING FINISH. ALL THIS WAS DULY VERIFIED BY YOU IN SAID TELEPHONE CONVERSATION.

THE INVITATION TO BID WAS CLEAR AND UNAMBIGUOUS AS TO THE TYPE AND QUALITY OF EQUIPMENT REQUIRED AND TO BE FURNISHED. THE ERROR WAS APPARENTLY AN ERROR ON YOUR PARTY AND WAS UNILATERAL. THIS OFFICE HAS REPEATEDLY HELD, IN A LONG LINE OF DECISIONS, THAT IF A CONTRACTOR FAILS TO FAMILIARIZE ITSELF WITH THE SPECIFICATIONS, PRIOR TO THE SUBMISSION OF ITS PROPOSAL, SUCH FAILURE IS CLEARLY THE RESULT OF ITS OWN NEGLIGENCE AND IT MUST BEAR THE CONSEQUENCES THEREOF. 17 COMP. GEN. 823 ID. 373, ID. 452 ID. 456 ID. 546, ID. 560 ID. 598, 599; 30 COMP. GEN. 509, 510.

MOREOVER, YOUR CORPORATION WAS REQUESTED TO VERIFY ITS BID, AND IN REPLY CONFIRMED THE FACT THAT LAVATORY FIXTURES WOULD BE FURNISHED, ENAMELED WITH ACID RESISTING ENAMEL, IN ACCORDANCE WITH SPECIFICATIONS AND AT THE PRICE QUOTED. AFTER SUCH VERIFICATION, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. 27 COMP. GEN. 17.

THE COURTS HAVE HELD THAT WHERE AN INVITATION IS CLEAR AND UNAMBIGUOUS, AS TO THE NEEDS OF THE GOVERNMENT, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION, IS THAT OF THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163, WHEREIN THE COURT OF CLAIMS STATED:

"* * * 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.'

THE GOOD FAITH ISSUANCE OF THE PURCHASE ORDER HERE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75; UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88. THE VENDOR IS NOT ENTITLED TO ANY REDRESS FOR THE CONSEQUENCES OF ITS UNILATERAL MISTAKE. OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ON THE BASIS OF THE FACTS OF RECORD AND THE LAW APPLICABLE THERETO, THERE IS NO LEGAL BASIS TO GRANT AN INCREASE IN THE CONTRACT PRICE.