B-132541, JUL. 30, 1957

B-132541, JUL. 30, 1957

TO THE GLIDDEN COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 24, 1957, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 11, 1957, WHICH DISALLOWED YOUR CLAIM FOR $235 STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH PURCHASE ORDER NO. (33-602/57-112, DATED AUGUST 17, 1956, WAS BASED.

ON AUGUST 7, 1956, SHELBY AIR FORCE DEPOT, WILKINS AIR FORCE STATION, SHELBY, OHIO, REQUESTED YOUR PRICE FOR 250 GALLONS OF EXTERIOR GLOSS DARK GRAY PAINT, YOUR FORMULA ILV-GL-66137. COMPETITIVE BIDS WERE NOT REQUESTED AS YOU ARE THE SOLE MANUFACTURER OF THIS ITEM. YOU SUBMITTED BID OFFERING TO FURNISH THE DESIRED QUANTITY OF PAINT FOR $2.24 PER GALLON IN FIVE-GALLON CANS AND $3.48 PER GALLON IN ONE-GALLON CANS. THE BID OF $2.24 PER GALLON IN FIVE GALLON CANS WAS ACCEPTED BY THE PURCHASE ORDER. DELIVERY WAS EFFECTED SEPTEMBER 24, 1956, AND PAYMENT FOR THE PAINT WAS MADE ON OCTOBER 2, 1956. BY LETTER DATED OCTOBER 10, 1956, YOU ADVISED THE ADMINISTRATIVE OFFICE THAT YOU HAD MADE A MATHEMATICAL ERROR OF $1 PER GALLON IN THE ORIGINAL QUOTATION AND REQUESTED RELIEF. YOU STATE IN YOUR LETTER OF JUNE 24, 1957, THAT YOU REALIZE THAT THE CONTRACTING OFFICER DID NOT KNOW OF THE MISTAKE PRIOR TO AWARD. HOWEVER, YOU STATE THAT SINCE YOU QUOTED $3.48 PER GALLON FOR THE SAME MATERIAL PACKED IN ONE-GALLON CANS, IT CERTAINLY MUST BE EVIDENT THAT YOU MADE AN HONEST ERROR.

THE QUESTION FOR CONSIDERATION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT AROSE BY REASON OF THE ACCEPTANCE OF YOUR BID. THE RECORD SHOWS THAT YOUR BID WAS THE ONLY ONE RECEIVED. WHERE ONLY ONE BID IS RECEIVED ON AN ITEM THERE IS, OF COURSE, NO BASIS FOR A COMPARISON OF BIDS AND WHERE THERE IS NO INDICATION ON THE FACE OF THE BID THERE IS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. SEE 17 COMP. GEN. 560; AND 26 ID. 415. A COMPARISON COULD NOT BE MADE WITH THE COST OF PAINT PURCHASED FROM YOU IN 1955, SINCE NO BID WAS REQUESTED ON THE FIVE-GALLON SIZE AT THAT TIME. AT THE TIME OF THE 1956 PURCHASE, YOU QUOTED A PRICE OF $0.27 LESS PER GALLON ON THE ONE GALLON SIZE (FOR THE 250 GALLON QUANTITY) THAN YOU DID ON THE 1955 ORDER OF 100 GALLONS. THIS COULD AMOUNT TO A SAVING ON THE PAINT, ALONE, OF $1.35 PER FIVE-GALLON CAN AND A FURTHER SAVING ON THE EXTRA FOUR CONTAINERS WOULD NOT BE IMPROBABLE. HENCE, IT MAY NOT BE PRESUMED THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID--- THIS FACT IS ADMITTED IN YOUR RECENT LETTER--- AND THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 U.S. 645.

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF YOUR BID WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS YOU ALLEGE, AN ERROR WAS MADE IN THE COMPUTATION OF YOUR BID PRICE, SUCH ERROR WAS DUE SOLELY TO YOUR OWN OVERSIGHT AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL- -- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :