B-133637, SEP. 6, 1957

B-133637: Sep 6, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED AUGUST 29. SO AS TO CORRECT AN ERROR ALLEGED TO HAVE BEEN MADE THEREIN. CALIFORNIA" THIS PROPOSAL WAS ACCEPTED BY THE GOVERNMENT ON JUNE 6. NOTIFICATION OF THE AWARD WAS FORWARDED TO THE CONTRACTOR ON THAT DATE. THERE IS NOTHING IN THE RECORD WHICH WOULD INDICATE THAT THE CONTRACTING OFFICER EITHER KNEW OF THE ALLEGED MISTAKE. AT THE TIME IT WAS ACCEPTED BY THE GOVERNMENT ON JUNE 6. THE CONCLUSION IS REQUIRED. WAS UNILATERAL. THE LAW UPON THIS POINT IS WELL SETTLED. THE COURTS CONSISTENTLY HAVING RULED THAT NO RELIEF WILL BE GRANTED TO A PARTY TO AN EXECUTORY CONTRACT IN THE CASE OF A UNILATERAL MISTAKE.

B-133637, SEP. 6, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED AUGUST 29, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF MODIFYING CONTRACT NO. O.I. 6647 G-57, DATED JUNE 6, 1957, WITH THE UNITED STATES STEEL CORPORATION, SO AS TO CORRECT AN ERROR ALLEGED TO HAVE BEEN MADE THEREIN.

BY INVITATION NO. S AND D 6999-57, ISSUED MAY 20, 1957, THE TRANSPORTATION SUPPLY AND MAINTENANCE COMMAND, UNITED STATES ARMY, ST. LOUIS, MISSOURI, SOLICITED QUOTATIONS ON ITEMS NOS. 9 AND 10 THEREOF, DESCRIBED AS FOLLOWS:

CHART "ITEM NO. SUPPLIES OR SERVICES QUANTITY UNIT UNIT AMOUNT

(NUMBER PRICE

OF UNITS)

"10STEEL SHEET, FLAT, ZINC COATED;

AS ROLLED CONDITION; COATING,

HOT DIPPED; ORDINARY COATED;

SHEARED EDGES; OVERALL DIM.,

36 IN W, 8 FT LG., .0478 IN THK.,

LB PER SHEET 51.75; SPEC FED

QQ I-716, CLASS DI 830 EA

"11 STEEL PLATE, CARBON

EDGE TYPE, ROLLED OR SHEARED;

SPEC FED QQ-S-731, CLASS A;

WT. PER SQ. FT 2040 LBS

DIM., .500 IN THK., 60 IN W, 120 IN 1 EA"

LG.

IN RESPONSE THERETO, THE UNITED STATES STEEL SUPPLY DIVISION, UNITED STATES STEEL CORPORATION, ST. LOUIS, MISSOURI, SUBMITTED A PROPOSAL DATED MAY 28, 1957, WHICH READ:"ITEM NO. SUPPLIES OR SERVICES QUANTITY UNIT UNIT AMOUNT

(NUMBER PRICE

OF UNITS)

"10 830 PCS 18 GA BY 36 BY 96 39840 NO. CWT 10.965 4368.46

COMMERCIAL QUALITY 1.25 OZ.

COATING PER SQUARE FOOT

"11 1 STEEL PLATE, CARBON EDGE TYPE, 1030 NO. CWT 10.065 103.67

ROLLED OR SHEARED; ASTM A 7

FOB: LATHROP, CALIFORNIA"

THIS PROPOSAL WAS ACCEPTED BY THE GOVERNMENT ON JUNE 6, 1957, RESULTING IN CONTRACT NO. O.I. 6647 G-57, AND NOTIFICATION OF THE AWARD WAS FORWARDED TO THE CONTRACTOR ON THAT DATE.

BY LETTER DATED JUNE 12, 1957, OR SIX DAYS AFTER THE AWARD, THE UNITED STATES STEEL SUPPLY DIVISION NOTIFIED THE CONTRACTING OFFICER THAT THROUGH A CLERICAL ERROR, THEY HAD ERRONEOUSLY COMPUTED AND LISTED THE TOTAL WEIGHT OF ITEM NO. 10 AS 39,840 POUNDS, INSTEAD OF ITS CORRECT WEIGHT OF 42,994 POUNDS. IN EXPLANATION OF THE ALLEGED ERROR, THE COMPANY'S ST. LOUIS REPRESENTATIVE STATED THAT THEIR WEIGHT CLERK INADVERTENTLY SELECTED AND LISTED IN THEIR PROPOSAL OF MAY 28 THE UNIT WEIGHT OF ONE SHEET OF PLAIN HOT ROLLED MATERIAL, INSTEAD OF THE UNIT WEIGHT FOR ONE SHEET OF ZINC COATED MATERIAL, AS SPECIFIED, THUS ACCOUNTING FOR A TOTAL WEIGHT DIFFERENTIAL OF 3,154 POUNDS ON THE 830 PIECES SPECIFIED. SUBSTANTIATION OF ITS ALLEGATIONS, THE CONTRACTOR ENCLOSED WITH ITS LETTER OF JUNE 12, 1957, PHOTOSTATIC COPIES OF THE WEIGHT TABLES TAKEN FROM ITS STANDARD "STOCK BOOK," WHICH CLEARLY SHOW A WEIGHT DIFFERENTIAL OF 3.8 POUNDS PER UNIT BETWEEN THE GALVANIZED SHEETS (51.8 LBS. EA) AND THE PLAIN HOT ROLLED SHEETS (48 LBS. EA) AND OF THE GAGE AND DIMENSIONS SPECIFIED. IN VIEW OF THE ERRONEOUS LISTING OF THE WEIGHT OF ITEM NO. 10 IN ITS PROPOSAL, THE CONTRACTOR REQUESTED THAT THE CONTRACT BE MODIFIED TO REFLECT THE CORRECT TOTAL WEIGHT OF THE ITEM, AND TO SHOW THE TOTAL COST THEREOF TO BE $4,714.30, INSTEAD OF $4,368.46, AS LISTED IN ITS ACCEPTED PROPOSAL.

THERE IS NOTHING IN THE RECORD WHICH WOULD INDICATE THAT THE CONTRACTING OFFICER EITHER KNEW OF THE ALLEGED MISTAKE, OR HAD REASON TO SUSPECT THAT AN ERROR EXISTED IN THE CONTRACTOR'S PROPOSAL, AT THE TIME IT WAS ACCEPTED BY THE GOVERNMENT ON JUNE 6, 1957. THE CONCLUSION IS REQUIRED, THEREFORE, THAT THE BIDDER'S MISTAKE IN INCORRECTLY LISTING THE WEIGHT OF THE ITEM, AND IN COMPUTING ITS BID PRICE UPON THE BASIS OF THE INCORRECT TOTAL WEIGHT OF ITEM NO. 10, WAS UNILATERAL, AND NOT MUTUAL. THE LAW UPON THIS POINT IS WELL SETTLED, THE COURTS CONSISTENTLY HAVING RULED THAT NO RELIEF WILL BE GRANTED TO A PARTY TO AN EXECUTORY CONTRACT IN THE CASE OF A UNILATERAL MISTAKE. SEE SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, 507; UNITED STATES V. SABIN METAL CORP., 151 ID. 684; ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 C.CLS. 127.

HERE, NO ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONTRACTOR'S UNILATERAL ERROR CAME TO THE GOVERNMENT'S ATTENTION BEFORE IT ACCEPTED THE BID. THE ACCEPTANCE OF THE CONTRACTOR'S PROPOSAL IN THESE CIRCUMSTANCES CONSUMMATED A VALID AND A BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITY OF THE PARTIES THERETO.

ACCORDINGLY, NO LEGAL BASIS EXISTS FOR MODIFYING THE INSTANT CONTRACT.