B-130912, MAR. 25, 1957

B-130912: Mar 25, 1957

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF MARCH 4. IN WHICH THERE IS SUBMITTED FOR OUR CONSIDERATION THE MATTER OF AN ALLEGED MISTAKE IN BID BY SEPCO CORPORATION. FOUR BIDS WERE SUBMITTED FOR SUPPLYING TWELVE WATER HEATERS TO THE NAVY DEPARTMENT. THE LOW BID OF $79.30 EACH WAS SUBMITTED BY SEPCO CORPORATION. THE OTHER BIDS WERE IN THE AMOUNTS OF $96.70. IT STATES THAT ITS QUOTATION WAS BASED ENTIRELY ON ITS PRINTED PRICE LIST. THAT CONSEQUENTLY NO WORK SHEETS WERE PREPARED AND SUBMITTED TO SUBSTANTIATE THE ALLEGED MISTAKE. THE RECORD DOES NOT CONTAIN ANYTHING TO INDICATE THAT THE CONTRACTING OFFICER WAS ON NOTICE OR SHOULD HAVE BEEN ON NOTICE OF ANY MISTAKE ON THE PART OF THE BIDDER PRIOR TO THE AWARD.

B-130912, MAR. 25, 1957

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MARCH 4, 1957, FROM CAPTAIN D. C. MACKENZIE, ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, IN WHICH THERE IS SUBMITTED FOR OUR CONSIDERATION THE MATTER OF AN ALLEGED MISTAKE IN BID BY SEPCO CORPORATION, POTTSTOWN, PENNSYLVANIA, UNDER CONTRACT N189-34497A, ENTERED INTO WITH THE NAVY PURCHASING OFFICE, NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA.

PRIOR TO THE CONSUMMATION OF THE CONTRACT WITH SAID SEPCO CORPORATION ON JANUARY 17, 1957, FOUR BIDS WERE SUBMITTED FOR SUPPLYING TWELVE WATER HEATERS TO THE NAVY DEPARTMENT. THE LOW BID OF $79.30 EACH WAS SUBMITTED BY SEPCO CORPORATION. THE OTHER BIDS WERE IN THE AMOUNTS OF $96.70, $99.05 AND $110.40 EACH.

AFTER THE AWARD TO SEPCO CORPORATION AND ON JANUARY 22, 1957, THE CORPORATION EXPLAINED THAT AN ERROR IN QUOTATION OCCURRED THROUGH ITS FAILURE TO INCLUDE OVERSEAS PACKING COST OF $22 PER HEATER IN THE UNIT PRICE QUOTED. IT STATES THAT ITS QUOTATION WAS BASED ENTIRELY ON ITS PRINTED PRICE LIST, AND THAT CONSEQUENTLY NO WORK SHEETS WERE PREPARED AND SUBMITTED TO SUBSTANTIATE THE ALLEGED MISTAKE. THE INVITATION HAD STATED SPECIFICALLY THAT "PRESERVATION, PACKAGING, PACKING AND MARKING SHALL BE FOR OVERSEAS SHIPMENT.' THE RECORD DOES NOT CONTAIN ANYTHING TO INDICATE THAT THE CONTRACTING OFFICER WAS ON NOTICE OR SHOULD HAVE BEEN ON NOTICE OF ANY MISTAKE ON THE PART OF THE BIDDER PRIOR TO THE AWARD.

SUCH ERROR AS WAS MADE WAS ONE ON THE PART OF THE BIDDER, WAS UNILATERAL AND WAS NOT INDUCED BY THE GOVERNMENT. SINCE NO ERROR WAS ALLEGED UNTIL AFTER AWARD, THE ACCEPTANCE WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75. IF A BIDDER 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. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; SALIGMAN, ET AL. V. UNITED STATES, 59 F.SUPP. 505, 507; 17 COMP. GEN. 823; 30 COMP. GEN. 509, 510.

ON THE BASIS OF THE FACTS OF RECORD AND THE LAW APPLICABLE THERETO, THERE IS NO LEGAL BASIS FOR RELIEVING SEPCO CORPORATION FROM ITS OBLIGATION TO PERFORM THE CONTRACT.