B-130552, MAR. 22, 1957

B-130552, MAR. 22, 1957

TO TEXAS INSTRUMENTS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1957, REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 27, 1956, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL AMOUNT OF $440 DUE TO AN ALLEGED ERROR IN THE PRICE QUOTED IN YOUR BID OF FEBRUARY 9, 1956, PURSUANT TO DEPARTMENT OF THE ARMY REQUEST FOR PROPOSAL NO. CS5198-56, ISSUED FEBRUARY 3, 1956, FOR FURNISHING 200 TRANSITORS DESCRIBED AS "TYPE 905 TEXAS INSTRUMENT COMPANY," TO REDSTONE ARSENAL, HUNTSVILLE, ALABAMA.

BY LETTER DATED APRIL 9, 1956, FROM R. L. PERRENOT, ORDER EDITOR, TO THE COMMANDING GENERAL, REDSTONE ARSENAL, HUNTSVILLE, ALABAMA, ATTENTION WAS INVITED TO AN ALLEGED ERROR IN YOUR BID QUOTATION OF "1 99 $25.80" AND "100-999 $23.60" EACH, IN A TOTAL AMOUNT OF "$4,720.' MR. PERRENOT CONTENDED THAT HE GAVE THE CORRECT PRICE OF "$5160" TO MR. L. GARRISON, REDSTONE ARSENAL PURCHASING OFFICER, OVER THE TELEPHONE ON FEBRUARY 17, 1956, AT WHICH TIME CERTAIN TERMS AND CONDITIONS AS TO DELIVERY IN THE REQUEST FOR PROPOSAL AND IN YOUR BID WERE WAIVED BY MR. PERRENOT, AFTER WHICH MR. GARRISON PLACED A VERBAL ORDER AND GAVE SHIPPING INSTRUCTIONS FOR THE FURNISHING OF THE 200 TRANSITORS. IN THAT LETTER YOU ADMITTED FULL RESPONSIBILITY FOR THE ERROR IN YOUR BID, AND APPARENTLY BASED YOUR REQUEST FOR RELIEF IN THE MATTER MORE ON A FAIR OR POSSIBLY EQUITABLE APPROACH WITHOUT REGARD TO LEGAL PRINCIPLES GENERALLY APPLICABLE IN SUCH CIRCUMSTANCES.

IN VIEW OF THE TENOR OF THAT LETTER, IT BECOMES NECESSARY, IN THE FIRST INSTANCE, TO ADVISE THAT EVEN IF THE MATTER WERE SUCH AS TO WARRANT EQUITABLE CONSIDERATION, THE GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO SETTLE CLAIMS OF THIS KIND SOLELY ON MORAL OR EQUITABLE GROUNDS. THEREFORE, WHILE THERE MAY BE APPRECIATED YOUR POSITION WITH REGARD TO AN ERROR OF THIS KIND, OUR OFFICE MUST IN ARRIVING AT A CONCLUSION IN SUCH A CASE BE GOVERNED BY APPLICABLE LEGAL PRINCIPLES.

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 OF YOUR BID.

WITH REGARD TO THE TELEPHONE CONVERSATION BETWEEN MR. PERRENOT AND MR. GARRISON ON FEBRUARY 17, 1956, SUBSEQUENT TO YOUR WRITTEN QUOTATION OF FEBRUARY 9, 1956, MR. GARRISON HAS STATED THAT THERE WAS NO DISCUSSION OF PRICE DURING THE CONVERSATION AND THAT THE ONLY MATTER DISCUSSED WAS A WAIVER OF PROVISIONS WITH RESPECT TO TIME AND METHOD OF DELIVERY; ALSO, HE STATED THAT AFTER MR. PERRENOT "GAVE THE BEST POSSIBLE DELIVERY" PURCHASE ORDER NO. 8010-B56 WAS ISSUED AND HE WAS GIVEN SHIPPING INSTRUCTIONS. NOTWITHSTANDING THE FACT THAT THE WRITTEN PURCHASE ORDER NO. 8010-B56, DATED FEBRUARY 17, 1956, CALLED FOR YOUR COMPANY TO FURNISH 200 TRANSITORS, TYPE 905, TEXAS INSTRUMENT COMPANY, AT A UNIT PRICE OF "$23.60" EACH, IN A TOTAL AMOUNT OF "$4720," WITH DELIVERY DATES SPECIFIED AS "50 EA-4 MARCH 1956, 50 EA 11 MARCH 1956, AND 100 EA-18 MARCH 1956," AND CONTAINED THE NOTATION "CONFIRMING TELEPHONE ORDER OF 17 FEBRUARY 1956. DO NOT DUPLICATE.' , YOU WENT AHEAD AND DELIVERED THE TRANSITORS AND DID NOT ADVISE REDSTONE ARSENAL OF THE ALLEGED ERROR UNTIL SOMETIME AFTER DELIVERY OF THE 200 TRANSITORS. HENCE, THERE IS A DIRECT CONFLICT ON THE QUESTION AS TO WHETHER YOU ADVISED THE PURCHASING OFFICE OF YOUR INTENDED QUOTATION BEFORE YOUR OFFER WAS ACCEPTED, AND WHEN THERE IS A COMPLETE DISAGREEMENT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT THERE IS FOR APPLICATION THE PRINCIPLE THAT THE FACTS AS ADMINISTRATIVELY REPORTED MUST, IN THE CIRCUMSTANCES, BE ACCEPTED BY OUR OFFICE AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE TO OVERCOME THE CORRECTNESS OF THE REPORTED FACTS.

THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE PRICE QUOTED THEREIN WAS NOT AS INTENDED, AND SINCE YOU WERE THE SOLE SUPPLIER OF THE DESCRIBED TRANSITORS YOUR BID WAS THE ONLY ONE RECEIVED AND THERE WAS NO BASIS FOR COMPARISON OF BIDS. CONSEQUENTLY, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID PRIOR TO ACCEPTANCE. IN THE CIRCUMSTANCES, THE ACCEPTANCE OF YOUR BID APPEARS TO HAVE BEEN IN GOOD FAITH, AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES, AND NO OFFICER OF THE GOVERNMENT HAS THE AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 31, CERTIORARI DENIED, 280 U.S. 574.

THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO AN INVITATION IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. ANY ERROR THAT MAY HAVE BEEN MADE WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR WAS UNILATERAL--- NOT MUTUAL. IN THE CIRCUMSTANCES, WE ARE UNABLE TO FIND ANY LEGAL BASIS FOR GRANTING THE RELIEF YOU REQUEST.