B-134652, JAN. 7, 1958

B-134652: Jan 7, 1958

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TO ACTION MANUFACTURING COMPANY: REFERENCE IS MADE TO A LETTER DATED DECEMBER 2. 492.40 STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH CONTRACT NO. IS BASED. YOUR BID FOR ITEMS 12 (A) THROUGH 12 (JX) AND CERTAIN OTHER ITEMS WERE ACCEPTED BY THE CONTRACT OF AUGUST 1. THAT DUE TO ERROR YOU HAD FAILED TO NOTICE THAT ITEMS 12 AND 14 WERE TO BE MADE FROM NYLON CLOTH AND REQUESTED THAT YOU BE GRANTED AN INCREASE IN PRICE FOR THE ITEMS OR BE RELEASED FROM PERFORMANCE WITH RESPECT TO THOSE ITEMS. YOU ADVISED THE CONTRACTING OFFICER THAT YOU WERE PROCEEDING TO FULFILL THE CONTRACT REQUIREMENTS AND THAT YOU WERE WITHDRAWING YOUR REQUEST FOR AN INCREASE ON ITEM 14.

B-134652, JAN. 7, 1958

TO ACTION MANUFACTURING COMPANY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 2, 1957, FROM DANIEL S. GREENSTEIN, REQUESTING, IN YOUR BEHALF, REVIEW OF SETTLEMENT DATED NOVEMBER 19, 1957, WHICH DISALLOWED YOUR CLAIM FOR APPROXIMATELY $5,492.40 STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH CONTRACT NO. N383S-18692A, DATED AUGUST 1, 1955, IS BASED.

IN RESPONSE TO INVITATION NO. IFB-383-955-55 YOU OFFERED TO FURNISH, AMONG OTHERS, ITEM 12 (A) THROUGH 12 (I) AT UNIT PRICES OF $10.70 AND ITEM 12 (JX) AT A UNIT PRICE OF $11.40. YOUR BID FOR ITEMS 12 (A) THROUGH 12 (JX) AND CERTAIN OTHER ITEMS WERE ACCEPTED BY THE CONTRACT OF AUGUST 1, 1955. BY LETTER OF NOVEMBER 25, 1955, YOU ADVISED THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, THAT DUE TO ERROR YOU HAD FAILED TO NOTICE THAT ITEMS 12 AND 14 WERE TO BE MADE FROM NYLON CLOTH AND REQUESTED THAT YOU BE GRANTED AN INCREASE IN PRICE FOR THE ITEMS OR BE RELEASED FROM PERFORMANCE WITH RESPECT TO THOSE ITEMS. BY LETTER OF JANUARY 29, 1956, YOU ADVISED THE CONTRACTING OFFICER THAT YOU WERE PROCEEDING TO FULFILL THE CONTRACT REQUIREMENTS AND THAT YOU WERE WITHDRAWING YOUR REQUEST FOR AN INCREASE ON ITEM 14. YOU REQUESTED AN INCREASE ON ITEM 12 UP TO THE NEXT LOWEST BID OR APPROXIMATELY $14.75 PER UNIT IN LIEU OF $10.70 AND $11.40 PER UNIT. THE CONTRACTING OFFICER DENIED YOUR REQUEST FOR AN INCREASE IN THE CONTRACT PRICE. LATER YOU APPEALED THE DECISION OF THE CONTRACTING OFFICER TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS. DECISION NO. 4000, DATED JUNE 7, 1957, THE BOARD DISMISSED THE APPEAL FOR LACK OF JURISDICTION.

IT IS CONTENDED IN THE LETTER OF DECEMBER 2, 1957, THAT SINCE YOU ARE CHIEFLY A MANUFACTURER OF METAL ITEMS AND AS ITEM 12 IS FOR SEAT ASSEMBLIES, AND IN VIEW OF THE DIFFERENCE IN THE PRICES YOU BID FOR ITEM 12 AND THE OTHER BIDS RECEIVED THEREON, THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF ERROR AND SHOULD NOT HAVE ACCEPTED THE BID WITHOUT REQUESTING YOU TO VERIFY IT.

THE CONTRACTING OFFICER HAS REPORTED THAT HE WAS NOT AWARE OF THE ERROR PRIOR TO AWARD. THERE WERE FOUR OTHER BIDS RECEIVED ON ITEMS 12 (A) AND 12 (JX), THE NEXT LOWEST BEING $14.67 AND $14.56 AND THE HIGHEST BEING $25.95 EACH. THE SECOND LOW BID WAS 38 PERCENT HIGHER THAN YOUR BID ON ITEM 12. THE OTHER ITEMS AWARDED YOU AS LOW BIDDER, WERE LOW BY APPROXIMATELY THE SAME MARGIN AS ON ITEM 12. THUS, THE DIFFERENCE BETWEEN YOUR BID ON THIS ITEM AND THE OTHER BIDS THEREON WAS NOT SO GREAT AS TO JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID. IT IS STATED IN THE LETTER OF DECEMBER 2, 1957, THAT ON MARCH 7, 1955, THE AVIATION SUPPLY DEPOT ISSUED AN INVITATION FOR THE SAME ITEMS AS HERE INVOLVED AND CONSEQUENTLY THAT DEPOT DID HAVE PRIOR EXPERIENCE AS TO ITEM 12. THE CONTRACTING OFFICER IN HIS REPORT WITH REGARD TO THE ERROR INVOLVED STATED THAT THE RECORDS AT THE AVIATION SUPPLY OFFICE INDICATED THAT NO PREVIOUS PROCUREMENT OF ITEM 12 HAD BEEN MADE. CONCEDING THAT YOUR STATEMENT IS CORRECT, THAT FACTOR ALONE WOULD NOT JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID. YOU DO NOT CONTEND THAT YOU BID ON THE INVITATION OF MARCH 7, 1955, AND THAT THE BIDS RECEIVED WERE SO MUCH LARGER THAN THE BID HERE INVOLVED THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR. AS YOUR ATTORNEY STATED, THIS ITEM HAD BEEN MANUFACTURED PREVIOUSLY BY THE WEBER AIRCRAFT CORPORATION AND HAD THE CONTRACTING OFFICER BEEN AWARE OF THE INVITATION OF MARCH 7, 1955, HE WOULD NOT HAVE ANY BETTER BASIS OF COMPARISON OF BID THAN HE HAD UNDER THE PRESENT INVITATION, AS THE WEBER AIRCRAFT CORPORATION WAS THE NEXT LOW BIDDER HERE. IT FOLLOWS THAT THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH --- NO ERROR HAVING BEEN ALLEGED BY YOU UNTIL AFTER AWARD OF THE CONTRACT- -- AND THAT SUCH ACTION 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.

THE RESPONSIBILITY FOR PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IT IS CLEAR THAT SUCH AN ERROR AS WAS MADE IN YOUR BID WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 652; AND 26 ID. 415.