B-134334, DEC. 31, 1957

B-134334: Dec 31, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED NOVEMBER 5. DA-35-026-ENG-29840 IS BASED. CONTRACT NO. 35-026-ENG-29840 WAS AWARDED ON THAT BASIS. THE AMOUNT OF $60.84 WAS DEDUCTED BECAUSE OF EXCESS FREIGHT COSTS OVER THE CONTRACT FREIGHT RATE GUARANTEE OF $1.38 PER CWT. WHEN THE CORRECT RATE IN THE PUBLISHED TARIFF WAS $1.47. IT IS IMMATERIAL THAT THE BIDDER BASES ITS FREIGHT RATE ON ERRONEOUS INFORMATION SUPPLIED TO IT BY THE CARRIER. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE ERROR THEREIN AND NO ERROR WAS ALLEGED UNTIL AFTER DELIVERY OF THE LUMBER. THERE IS NO LEGAL BASIS TO GRANT ANY RELIEF IN THIS MATTER.

B-134334, DEC. 31, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED NOVEMBER 5, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), WHO REQUESTS A DECISION REGARDING AN ERROR MCINNIS LUMBER COMPANY, PORTLAND, OREGON, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA-35-026-ENG-29840 IS BASED.

IN RESPONSE TO INVITATION NO. ENG-35-026-57-024, MCINNIS LUMBER COMPANY SUBMITTED A BID TO FURNISH LUMBER FOB CARS LIBBY, MONTANA, AND GUARANTEED THAT THE FREIGHT RATE TO FORT HUACHUCA, ARIZONA, WOULD NOT EXCEED $1.38 PER CWT. CONTRACT NO. 35-026-ENG-29840 WAS AWARDED ON THAT BASIS. MAKING PAYMENT FOR THE LUMBER, THE AMOUNT OF $60.84 WAS DEDUCTED BECAUSE OF EXCESS FREIGHT COSTS OVER THE CONTRACT FREIGHT RATE GUARANTEE OF $1.38 PER CWT. SUBSEQUENTLY, THE CONTRACTOR MADE A CLAIM FOR REFUND OF THIS DEDUCTION. WITH ITS CLAIM THE CONTRACTOR SUBMITTED A LETTER FROM THE GREAT NORTHERN RAILWAY STATING THAT IT INADVERTENTLY QUOTED MCINNIS LUMBER COMPANY A RATE OF $1.38 PER CWT. WHEN THE CORRECT RATE IN THE PUBLISHED TARIFF WAS $1.47. THE CONTRACTOR REQUESTS REIMBURSEMENT ON THE BASIS THAT THE ERROR IN THE FREIGHT RATE OCCURRED THROUGH NO FAULT OF ITS OWN AND THAT ITS STATUS AS LOW BIDDER WOULD NOT BE AFFECTED BY THE $1.47 RATE.

WHEN A BIDDER QUOTES TO THE GOVERNMENT A PRICE TO FURNISH SUPPLIES FOB ORIGIN, AND IN ADDITION THE FREIGHT RATE TO DESTINATION, IT IS IMMATERIAL THAT THE BIDDER BASES ITS FREIGHT RATE ON ERRONEOUS INFORMATION SUPPLIED TO IT BY THE CARRIER. UNDER THE TERMS OF THE CONTRACT THE BIDDER ASSUMED THE RESPONSIBILITY OF ASCERTAINING THE CORRECT FREIGHT RATE. SEE B-22821, MARCH 18, 1942, AND JULY 7, 1942.

THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE ERROR THEREIN AND NO ERROR WAS ALLEGED UNTIL AFTER DELIVERY OF THE LUMBER. THEREFORE, THE GOOD FAITH ACCEPTANCE OF THE BID 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 AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ON THE BASIS OF THE FACTS OF RECORD AND THE LAW APPLICABLE THERETO, THERE IS NO LEGAL BASIS TO GRANT ANY RELIEF IN THIS MATTER.