B-131604, MAY 3, 1957

B-131604: May 3, 1957

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NATIONAL INSTITUTES OF HEALTH: REFERENCE IS MADE TO YOUR LETTER OF APRIL 18. MAY BE ASSESSED AGAINST THE BIDDER IF THE SUPPLIES ARE OBTAINED FROM ANOTHER SOURCE. SINCE THE BID WAS PROPER ON ITS FACE AND WAS THE LOWEST OFFER RECEIVED. AWARD OF THE CONTRACT WAS MADE IN GOOD FAITH WITHOUT NOTICE OF ERROR. THAT SINCE IT WAS EQUIPPED TO PRODUCE ONLY A MOLDED ARTICLE. IN THIS CASE THE INVITATION WAS CLEAR AND UNAMBIGUOUS AS TO THE TYPE OF CAGE TO BE FURNISHED. THE BID SUBMITTED WAS ACCEPTED WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR. THE COURTS HAVE HELD REPEATEDLY THAT WHERE. A MISTAKE IS MADE AS THE RESULT OF NEGLIGENCE OR FAILURE TO EXERCISE THAT DEGREE OF DILIGENCE WHICH MAY FAIRLY BE EXPECTED OF A REASONABLE PERSON.

B-131604, MAY 3, 1957

TO MR. DONALD R. WATSON, CONTRACTING OFFICER, NATIONAL INSTITUTES OF HEALTH:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1957, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER APPLIED PLASTICS DIVISION, KEYSTONE BRASS WORKS, INCORPORATED, SHOULD BE RELIEVED OF ITS OBLIGATION TO PERFORM THE CONTRACT AWARDED PURSUANT TO ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. 461-2-20-57, OR WHETHER DAMAGES, IF ANY, MAY BE ASSESSED AGAINST THE BIDDER IF THE SUPPLIES ARE OBTAINED FROM ANOTHER SOURCE.

THE RECORD DISCLOSES THAT IN RESPONSE TO THE ABOVE INVITATION CALLING FOR 1,000 PLASTIC MOUSE CAGES, TO BE PRODUCED IN ACCORDANCE WITH THE SPECIFICATIONS MADE A PART THEREOF, THE CONCERN INVOLVED SUBMITTED AN UNQUALIFIED PROPOSAL TO SUPPLY THE CAGES FOR $1.94 EACH. SINCE THE BID WAS PROPER ON ITS FACE AND WAS THE LOWEST OFFER RECEIVED, AWARD OF THE CONTRACT WAS MADE IN GOOD FAITH WITHOUT NOTICE OF ERROR. AFTER AWARD THE CONTRACTOR NOTIFIED YOU THAT DUE TO AN OVERSIGHT IT FAILED TO NOTICE THAT THE SOLICITATION SPECIFIED A FABRICATED RATHER THAN A MOLDED CAGE, AND THAT SINCE IT WAS EQUIPPED TO PRODUCE ONLY A MOLDED ARTICLE, THE BIDDER REQUESTED TO BE RELIEVED OF THE OBLIGATIONS OF ITS CONTRACT.

IN THIS CASE THE INVITATION WAS CLEAR AND UNAMBIGUOUS AS TO THE TYPE OF CAGE TO BE FURNISHED, AND THE BID SUBMITTED WAS ACCEPTED WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR, THUS CREATING A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE COURTS HAVE HELD REPEATEDLY THAT WHERE, AS HERE, A MISTAKE IS MADE AS THE RESULT OF NEGLIGENCE OR FAILURE TO EXERCISE THAT DEGREE OF DILIGENCE WHICH MAY FAIRLY BE EXPECTED OF A REASONABLE PERSON, NEITHER LAW NOR EQUITY WILL GRANT RELIEF.

UNDER THE FACTS OR RECORD AND APPLICABLE LAW, THE CONCLUSION IS REQUIRED THAT THERE IS NO LEGAL BASIS FOR RELEASING THE APPLIED PLASTICS DIVISION, KEYSTONE BRASS WORKS, INCORPORATED, FROM THE CONTRACT, AND IN THE EVENT OF DEFAULT ANY DAMAGES INCURRED, INCLUDING EXCESS COSTS, SHOULD BE ASSESSED AGAINST THE CONTRACTOR.