B-130440, FEB. 12, 1957

B-130440: Feb 12, 1957

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CO.: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 18. SINCE YOU WERE THE SOLE BIDDER. YOU WERE ISSUED PURCHASE ORDER NO. 560- 6577-2. WAS YOUR PRICE FOR RUBBER CEMENT IN FOUR OUNCE JARS AND THAT THE CORRECT PRICE FOR ONE PINT CANS WAS $0.30. THIS IS NOT MATERIAL. SINCE NOTHING IS FOUND IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER WAS AWARE PRIOR TO THE AWARD THAT THE PRICE QUOTED BY YOUR CORPORATION ON ITEM NO. 2 WAS NOT AS INTENDED. PARTICULARLY SINCE YOU WERE THE SOLE BIDDER. THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH. THE COURTS HAVE HELD THAT WHERE AN INVITATION IS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT. IS THAT OF THE BIDDER. 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.

B-130440, FEB. 12, 1957

TO ROSS CHEMICAL AND MFG. CO.:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 18, 1956, REQUESTING RECONSIDERATION OF SETTLEMENT DATED DECEMBER 11, 1956, WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL $90 DUE TO AN ALLEGED ERROR IN BID ON REQUEST FOR QUOTATIONS NO. 56-D6577-A, DATED DECEMBER 20, 1955.

THE RECORD SHOWS THAT YOU BID A UNIT PRICE OF $0.15 ON ITEM NO. 2, WITH AN EXTENDED TOTAL OF $90, FOR 600 ONE PINT CANS OF LIQUID RUBBER CEMENT. SINCE YOU WERE THE SOLE BIDDER, YOU WERE ISSUED PURCHASE ORDER NO. 560- 6577-2, DATED JANUARY 9, 1956, IN EXACT CONFORMITY WITH THE BID.

BY LETTER DATED JANUARY 24, 1956, YOU NOTIFIED THE ADMINISTRATIVE OFFICE THAT THE PRICE QUOTED ON ITEM 2, $0.15, WAS YOUR PRICE FOR RUBBER CEMENT IN FOUR OUNCE JARS AND THAT THE CORRECT PRICE FOR ONE PINT CANS WAS $0.30. THE RECORD CONTAINS NO EVIDENCE OF HOW OR WHY THE ALLEGED MISTAKE ON YOUR PART OCCURRED, BUT THIS IS NOT MATERIAL, SINCE NOTHING IS FOUND IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER WAS AWARE PRIOR TO THE AWARD THAT THE PRICE QUOTED BY YOUR CORPORATION ON ITEM NO. 2 WAS NOT AS INTENDED, PARTICULARLY SINCE YOU WERE THE SOLE BIDDER. THUS, AS FAR AS THE RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING AGREEMENT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

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 VENDOR IS NOT ENTITLED TO ANY REDRESS FOR THE CONSEQUENCES OF A UNILATERAL MISTAKE. OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN EXCESS OF THE PRICE SPECIFIED UNDER ITEM 2 OF THE CONTRACT.