B-131638, JUN. 6, 1957

B-131638: Jun 6, 1957

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TO THE PHOENIX MERCHANDISE CORP.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10. 41 U.S.C. 10A-D) IS INCORPORATED HEREIN BY REFERENCE AND MADE A PART HEREOF. BUY AMERICAN ACT "THE CONTRACTOR AGREES THAT THERE WILL BE DELIVERED UNDER THIS CONTRACT ONLY SUCH UNMANUFACTURED ARTICLES. SUPPLIES" IS HEREINAFTER REFERRED TO IN THIS CLAUSE AS "SUPPLIES") AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES. ONLY SUCH MANUFACTURED SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM SUPPLIES MINED. THE RECORD SHOWS THAT YOUR BID OF $182.50 WAS THE LOWEST ACCEPTABLE BID ON ITEMS NOS. 29 AND 30. THAT ONE BID WAS UNACCEPTABLE BECAUSE IT PROPOSED TO FURNISH "FOREIGN" GOODS.

B-131638, JUN. 6, 1957

TO THE PHOENIX MERCHANDISE CORP.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 10, 1957, REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 8, 1957, WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL AMOUNT OF $77.50 ALLEGED TO BE DUE ON VETERANS ADMINISTRATION PURCHASE ORDER NO. 1215, DATED NOVEMBER 20,1956.

INVITATION NO. 57-94, DATED NOVEMBER 5, 1956, ISSUED BY THE VETERANS ADMINISTRATION, REQUESTED BIDS FOR FURNISHING 30 ITEMS OF CHRISTMAS DECORATIONS, AS DESCRIBED THEREIN, TO VETERANS ADMINISTRATION HOSPITAL, NORTHPORT, LONG ISLAND, NEW YORK. IN ADDITION TO OTHER PROVISIONS AND INSTRUCTIONS TO BIDDERS, THE INVITATION (PAGE 5) CONTAINED THE FOLLOWING:

" "BUY AMERICAN ACT" (47 STAT. 1520; 41 U.S.C. 10A-D) IS INCORPORATED HEREIN BY REFERENCE AND MADE A PART HEREOF. (SEE ARTICLE 14, SF-32).'

CLAUSE 14 OF GENERAL PROVISIONS (SUPPLY CONTRACT), PAGE 3, PROVIDED IN PERTINENT PART, AS FOLLOWS:

"14. BUY AMERICAN ACT

"THE CONTRACTOR AGREES THAT THERE WILL BE DELIVERED UNDER THIS CONTRACT ONLY SUCH UNMANUFACTURED ARTICLES, MATERIALS, AND SUPPLIES (WHICH TERM "ARTICLES, MATERIALS, AND SUPPLIES" IS HEREINAFTER REFERRED TO IN THIS CLAUSE AS "SUPPLIES") AS HAVE BEEN MINED OR PRODUCED IN THE UNITED STATES, AND ONLY SUCH MANUFACTURED SUPPLIES AS HAVE BEEN MANUFACTURED IN THE UNITED STATES SUBSTANTIALLY ALL FROM SUPPLIES MINED, PRODUCED, OR MANUFACTURED, AS THE CASE MAY BE, IN THE UNITED STATES. * * *"

ALSO, PARAGRAPH (D) OF SECTION 8 OF TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (PAGE 2) PROVIDED:

"/D) A WRITTEN AWARD MAILED (OR OTHERWISE FURNISHED) TO THE SUCCESSFUL BIDDER WITHIN THE TIME OF ACCEPTANCE SPECIFIED IN THE BID RESULTS IN A BINDING CONTRACT WITHOUT FURTHER ACTION BY EITHER PARTY.'

IN RESPONSE TO THE INVITATION YOU SUBMITTED AN UNQUALIFIED BID IN THE AGGREGATE OF $182.50 FOR FURNISHING LIGHT SETS AND BULBS UNDER ITEMS NOS. 29 AND 30.

THE RECORD SHOWS THAT YOUR BID OF $182.50 WAS THE LOWEST ACCEPTABLE BID ON ITEMS NOS. 29 AND 30, THE NEXT LOWEST ACCEPTABLE BID BEING $209.60, AND THAT ONE BID WAS UNACCEPTABLE BECAUSE IT PROPOSED TO FURNISH "FOREIGN" GOODS. YOUR BID WAS ACCEPTED AND AWARD WAS MADE TO YOU ON PURCHASE ORDER NO. 1215, DATED NOVEMBER 20, 1956. UPON RECEIPT OF YOUR SHIPMENT, IT WAS NOTED THAT THE LIGHT SETS AND BULBS WHICH YOU FURNISHED WERE NOT PRODUCED IN THE UNITED STATES AS REQUIRED BY THE CONTRACT, AND FOR THAT REASON THEY WERE REJECTED AND RETURNED TO YOU. BY LETTER OF DECEMBER 3, 1956, CONFIRMING TELEPHONE CONVERSATIONS OF NOVEMBER 30 AND DECEMBER 3, YOU WERE ADVISED THAT THE LIGHT SETS AND BULBS WERE REJECTED SINCE THEY WERE OF FOREIGN MANUFACTURE AND THAT THEY SHOULD BE REPLACED WITH ITEMS OF UNITED STATES MANUFACTURE. YOU SUBSEQUENTLY FURNISHED G.E. LIGHT SETS AND BULBS MADE IN THE UNITED STATES AND SUBMITTED A RECLAIM VOUCHER FOR $77.50, REPRESENTING THE DIFFERENCE BETWEEN YOUR CHARGE ON THE REPLACEMENT ORDER AND YOUR ORIGINAL BID PRICE.

IT IS WELL ESTABLISHED THAT THE ACCEPTANCE OF A BID CONSUMMATES NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH CIRCUMSTANCES AS WOULD MAKE HIS ACCEPTANCE AN ACT OF BAD FAITH. SEE IN THIS REGARD 28 COMP. GEN. 550, 551.

THE CONTRACTING OFFICER REPORTED THAT ANY ERROR THAT MAY HAVE BEEN MADE IN PREPARING YOUR BID WAS NOT APPARENT AT THE TIME BIDS WERE BEING CONSIDERED, AND THAT THERE IS NO EVIDENCE ON FILE IN HIS OFFICE WHICH WOULD WARRANT ADDITIONAL PAYMENT AS A RESULT OF THE ACCEPTANCE OF YOUR BID. HE, THEREFORE, RECOMMENDED THAT NO PAYMENT IN EXCESS OF THE AGGREGATE BID PRICE BE MADE TO YOU.

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND SPECIFICALLY STATED THAT THE "BUY AMERICAN ACT" WAS APPLICABLE TO THE ITEMS TO BE FURNISHED. THE VARIANCE BETWEEN YOUR BID PRICE AND THE NEXT LOWER ACCEPTABLE BID DID NOT APPEAR TO BE OUT OF LINE. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT IT WAS YOUR INTENTION TO FURNISH FOREIGN-MADE ARTICLES, AND THIS FACT DID NOT BECOME EVIDENT TO THE CONTRACTING OFFICER UNTIL AFTER AWARD TO YOU OF THE CONTRACT AND RECEIPT OF YOUR SHIPMENT OF THE LIGHT SETS AND BULBS. THE RECORD DOES NOT INDICATE THAT THE CONTRACTING OFFICER WAS PLACED ON NOTICE OF PROBABILITY OF ERROR IN YOUR BID. THEREFORE, INSOFAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH. ACCORDINGLY, SUCH ACCEPTANCE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING ANE REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

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--- AND WOULD NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

IN THE CIRCUMSTANCES, WE ARE UNABLE TO FIND ANY LEGAL BASIS FOR GRANTING THE RELIEF YOU REQUEST.