B-134550, MAR. 6, 1958

B-134550: Mar 6, 1958

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 30. YOU WERE AWARDED THE SUBJECT CONTRACT. THE CONTRACT EXECUTED BY YOUR FIRM WAS RETURNED TO THE NEW YORK QUARTERMASTER MARKET CENTER. THE DELIVERY DESTINATION WAS CHANGED FROM BAINBRIDGE. THE CONTRACT PRICE WAS LEFT UNCHANGED. THERE WAS AN ADMINISTRATIVE DELAY IN FORWARDING YOUR CLAIM TO OUR OFFICE AND DURING THAT PERIOD. YOU CONSENTED TO REDUCE YOUR CLAIM BY $73.70 SINCE IT WAS DETERMINED ADMINISTRATIVELY THAT YOU SAVED THAT AMOUNT AS A RESULT OF THE CHANGE IN THE ORIGINAL DESTINATION. YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE LOW BID YOU SUBMITTED WAS NOT SO FAR OUT OF LINE WITH THE OTHER BIDS RECEIVED AS TO IMPUTE KNOWLEDGE OF ERROR TO THE CONTRACTING OFFICER.

B-134550, MAR. 6, 1958

TO STERLING CIDER CO., INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 30, 1958, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 16, 1958, WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL AMOUNT ALLEGED TO BE DUE ON ACCOUNT OF AN ERROR IN BID IN CONNECTION WITH TYPE I CIDER VINEGAR FURNISHED THE DEPARTMENT OF THE ARMY UNDER CONTRACT NO. DA-30-079-QM-17323.

ON MARCH 14, 1955, YOU WERE AWARDED THE SUBJECT CONTRACT. ON MARCH 31, 1955, THE CONTRACT EXECUTED BY YOUR FIRM WAS RETURNED TO THE NEW YORK QUARTERMASTER MARKET CENTER. BY CHANGE ORDER DATED APRIL 11, 1955, THE DELIVERY DESTINATION WAS CHANGED FROM BAINBRIDGE, COLORA, MARYLAND, TO BAYONNE, NEW JERSEY, BUT THE CONTRACT PRICE WAS LEFT UNCHANGED. ON APRIL 14, 1955, ORALLY AND THEN BY WRITTEN CONFIRMATION, YOU ALLEGED AN ERROR IN YOUR BID FOR THE FIRST TIME. BY LETTER DATED AUGUST 24, 1955, ADDRESSED TO THE GENERAL ACCOUNTING OFFICE, BUT SUBMITTED THROUGH ADMINISTRATIVE CHANNELS, YOU MADE A CLAIM IN THE AMOUNT OF $576.50 ALLEGED TO BE DUE BECAUSE OF THE ERROR IN BID. HOWEVER, THERE WAS AN ADMINISTRATIVE DELAY IN FORWARDING YOUR CLAIM TO OUR OFFICE AND DURING THAT PERIOD, BY LETTER DATED JULY 22, 1957, YOU CONSENTED TO REDUCE YOUR CLAIM BY $73.70 SINCE IT WAS DETERMINED ADMINISTRATIVELY THAT YOU SAVED THAT AMOUNT AS A RESULT OF THE CHANGE IN THE ORIGINAL DESTINATION. BY THE SETTLEMENT OF JANUARY 16, 1958, YOUR CLAIM WAS DISALLOWED ON THE BASIS THAT THE LOW BID YOU SUBMITTED WAS NOT SO FAR OUT OF LINE WITH THE OTHER BIDS RECEIVED AS TO IMPUTE KNOWLEDGE OF ERROR TO THE CONTRACTING OFFICER.

IN YOUR REQUEST FOR RECONSIDERATION, YOU CONTEND THAT YOU COULD HAVE REFUSED TO PERFORM UNDER THE CONTRACT AFTER THE CHANGE ORDER WAS ISSUED, PRESUMABLY ON THE BASIS THAT THIS WAS NOT THE SAME CONTRACT AS THE ONE THAT WAS AWARDED TO YOU. HOWEVER, PARAGRAPH 3 OF THE GENERAL PROVISIONS, INCORPORATED BY REFERENCE AS A PART OF THE CONTRACT WHICH YOU EXECUTED, PROVIDES THAT THE CONTRACTING OFFICER MAY CHANGE THE PLACE OF DELIVERY AT ANY TIME BY ISSUING A WRITTEN ORDER. THEREFORE, UNDER THE TERMS OF THE CONTRACT YOU WERE REQUIRED TO PERFORM PURSUANT TO THE TERMS OF THE CHANGE ORDER.

YOU CONTEND FURTHER THAT YOU WERE TOLD BY OFFICIALS IN THE CONTRACTING OFFICE THAT AN ADJUSTMENT OF YOUR CLAIM WOULD BE MADE. HOWEVER, IT IS A WELL-ESTABLISHED RULE THAT NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645; UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED 280 U.S. 574; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335.

YOU STATE THAT YOU HAVE INCURRED CONSIDERABLE LOSS BY YOUR PERFORMANCE. IN FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163, THE COURT SAID THAT IT IS THE RESPONSIBILITY OF THE BIDDER ALONE TO ESTIMATE THE PRICE AT WHICH HE WILL PERFORM, AND THE GOVERNMENT IS NOT LIABLE FOR ANY LOSS WHICH RESULTS FROM AN IMPROVIDENT BID.