B-134399, DEC. 3, 1957

B-134399: Dec 3, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 13. REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY BRUSH ELECTRONICS COMPANY TO HAVE BEEN MADE IN ITS PROPOSAL ON WHICH CONTRACT NO. IS BASED. THE BID OF THE CORPORATION WAS ACCEPTED ON APRIL 5. GEN. 652 IT IS STATED: "THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED. HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. IT IS CLEAR THAT SUCH ERROR AS MAY HAVE BEEN MADE WAS NOT MUTUAL AND.

B-134399, DEC. 3, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 13, 1957, FROM THE ASSISTANT SECRETARY (LOGISTICS), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY BRUSH ELECTRONICS COMPANY TO HAVE BEEN MADE IN ITS PROPOSAL ON WHICH CONTRACT NO. DA-18-001- ORD-4560, DATED APRIL 5, 1957, IS BASED.

INVITATION NO. ORD 18-001-57-181, ISSUED FEBRUARY 15, 1957, REQUESTED BIDS FOR FURNISHING ONE COMPLETE SOUND MEASUREMENTS SYSTEM IN ACCORDANCE WITH DESIGNATED SPECIFICATIONS. IN RESPONSE, BRUSH ELECTRONICS COMPANY SUBMITTED A BID--- THE ONLY ONE RECEIVED--- OFFERING TO FURNISH THE COMPLETE SYSTEM AT A PRICE OF $5,810. THE BID OF THE CORPORATION WAS ACCEPTED ON APRIL 5, 1957.

BY LETTER OF MAY 6, 1957, THE CONTRACTOR'S WASHINGTON REPRESENTATIVE ADVISED THAT AN ERROR HAD BEEN MADE IN QUOTING ON THE SYSTEM; THAT FIVE ACCESSORY ITEMS LISTED ON PAGES 2 AND 3 OF THE SPECIFICATIONS HAD BEEN OMITTED FROM THE QUOTATION; AND REQUESTED THAT THE TOTAL AMOUNT OF THE CONTRACT BE INCREASED FROM $5,810 TO $6,374.40. BY LETTER DATED MAY 14, 1957, THE CONTRACTOR FURNISHED ADDITIONAL INFORMATION REGARDING THE ALLEGED ERROR, INCLUDING A PRICE LIST SHOWING PRICES EFFECTIVE AS OF JANUARY 7, 1957, FROM WHICH IT WOULD APPEAR THAT THE PRICES AS INDICATED FOR THE BASIC UNIT, LESS THE ALLEGED OMISSIONS, WOULD BE $5,810, AND THAT THE INCLUSION OF THE OVERLOOKED ITEMS WOULD BRING THE TOTAL COST TO $6,374.40.

IN 20 COMP. GEN. 652 IT IS STATED:

"THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 526; 8 ID. 362.'

IN THE INSTANT MATTER, IT IS CLEAR THAT SUCH ERROR AS MAY HAVE BEEN MADE WAS NOT MUTUAL AND, SINCE THE BID PRICE OF $5,810 WAS WITHIN A FEW DOLLARS OF THE REQUISITIONER'S ESTIMATE OF $5,823, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR. NEITHER WAS THE ALLEGED ERROR INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ACCORDINGLY, THE ESTABLISHED RULE ABOVE QUOTED IS FOR APPLICATION HERE. THE ACCEPTANCE OF THE BID CONSUMMATED A BINDING AND VALID CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 55; 26 COMP. GEN. 415; 29 ID. 323.

IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING NO OFFICER OF THE GOVERNMENT HAS THE AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. 14 COMP. GEN. 468; 20 ID. 703 AND COURT CASES CITED.

FOR THE REASONS ABOVE SET FORTH, THERE APPEARS NO VALID BASIS FOR INCREASING THE CONTRACT PRICE.