B-134299, DEC. 2, 1957

B-134299: Dec 2, 1957

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TO THE SECRETARY OF COMMERCE: REFERENCE IS MADE TO LETTERS DATED OCTOBER 31 AND NOVEMBER 15. IS BASED. THE DECISION IS BEING ADDRESSED TO YOU. THE COMPANY'S BID ON THIS ITEM WAS ACCEPTED BY PURCHASE ORDER NO. THE CONTRACTING OFFICER HAS STATED THAT DUE TO THE WIDE RANGES IN PRICES HE HAD NO REASON TO EXPECT AN ERROR PRIOR TO AWARD AND THAT THE FIRST NOTICE OF POSSIBLE ERROR WAS CONTAINED IN THE CONTRACTOR'S LETTER OF OCTOBER 9. THE ABSTRACT OF BIDS SHOWS THAT 23 BIDS WERE RECEIVED. EXCEPT FOR THE TWO HIGHEST BIDS THE PRICES WERE EVENLY GROUPED. BECAUSE OF THE WIDE RANGE IN THE BIDS IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS. - OR SHOULD HAVE BEEN. IT FOLLOWS THAT THE ACCEPTANCE OF THE BID OF THE DIXELL DEVELOPMENT AND MANUFACTURING COMPANY WAS IN GOOD FAITH.

B-134299, DEC. 2, 1957

TO THE SECRETARY OF COMMERCE:

REFERENCE IS MADE TO LETTERS DATED OCTOBER 31 AND NOVEMBER 15, 1957, WITH ENCLOSURES, FROM MR. C. O. SCHICK, CHIEF, PROCUREMENT AND SUPPLY SECTION, WEATHER BUREAU, UNITED STATES DEPARTMENT OF COMMERCE, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR DIXELL DEVELOPMENT AND MANUFACTURING COMPANY ALLEGES IT MADE IN ITS BID ON WHICH PURCHASE ORDER NO. W-1627, DATED SEPTEMBER 27, 1957, IS BASED.

SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE DECISION IS BEING ADDRESSED TO YOU. SEE 26 COMP. GEN. 993; AND 28 ID. 401.

THE UNITED STATES WEATHER BUREAU, WASHINGTON, D.C., BY INVITATION NO. 68- WB-58, REQUESTED BIDS FOR THE FURNISHING OF CERTAIN PRECIPITATION GAGE METAL SUPPORTS. THE DIXELL DEVELOPMENT AND MANUFACTURING COMPANY OFFERED TO FURNISH ITEM 1D, 600 SUPPORTS FOR $10.50 EACH. THE COMPANY'S BID ON THIS ITEM WAS ACCEPTED BY PURCHASE ORDER NO. W-1627. BY LETTER OF OCTOBER 9, 1957, THE COMPANY ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT HAD GOTTEN THE PRICE OF THE CASTINGS FROM ITS SUPPLIER AND THROUGH ERROR HAD BASED ITS BID ON ITS SUPPLIER'S PRICE PER HUNDRED CASTINGS INSTEAD OF PER HUNDREDWEIGHT. THE COMPANY REQUESTED THAT THE PURCHASE ORDER BE CANCELED.

THE CONTRACTING OFFICER HAS STATED THAT DUE TO THE WIDE RANGES IN PRICES HE HAD NO REASON TO EXPECT AN ERROR PRIOR TO AWARD AND THAT THE FIRST NOTICE OF POSSIBLE ERROR WAS CONTAINED IN THE CONTRACTOR'S LETTER OF OCTOBER 9, 1957.

THE ABSTRACT OF BIDS SHOWS THAT 23 BIDS WERE RECEIVED, WHICH RANGED FROM THE CONTRACTOR'S LOW BID OF $10.50 TO $57.70 AND THAT, EXCEPT FOR THE TWO HIGHEST BIDS THE PRICES WERE EVENLY GROUPED. BECAUSE OF THE WIDE RANGE IN THE BIDS IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS--- OR SHOULD HAVE BEEN--- ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY. IT FOLLOWS THAT THE ACCEPTANCE OF THE BID OF THE DIXELL DEVELOPMENT AND MANUFACTURING COMPANY WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY IT UNTIL AFTER THE AWARD OF THE CONTRACT--- AND THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATIONS UNDER THE CONTRACT. 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 :