B-134662, MAR. 6, 1958

B-134662: Mar 6, 1958

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TO MATTHEWS MEDICAL BOOKS: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12. WHEREIN YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR BID FOR FURNISHING COPIES OF TABER'S CYCLOPEDIC MEDICAL DICTIONARY WITHOUT THUMB INDEX. GS-OOS 16914 WAS AWARDED. YOUR BID WAS ACCEPTED AS TO ITEM 7610-527-2838. A COPY OF YOUR ACCEPTED BID WAS RETURNED TO YOU. IT WAS YOUR INTENTION TO QUOTE A PRICE OF $3.80 EACH FOR THE DICTIONARY COVERED BY ITEM 7610-527-2838. THAT THE AMOUNT OF $3.80 IS THE NET PRICE OBTAINED AFTER A DISCOUNT OF 20 PERCENT IS APPLIED TO THE LIST PRICE OF $4.75. THE COST PER COPY WOULD HAVE BEEN $3.17 EACH. THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE AN ERROR THEREIN. THE DIFFERENCE BETWEEN YOUR BID PRICE ON ITEM 7610-527-2838 AND THE PRICES QUOTED BY THE OTHER BIDDERS ON THAT ITEM IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT HE SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID.

B-134662, MAR. 6, 1958

TO MATTHEWS MEDICAL BOOKS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1957, AS SUPPLEMENTED BY YOUR LETTER OF DECEMBER 26, WHEREIN YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR BID FOR FURNISHING COPIES OF TABER'S CYCLOPEDIC MEDICAL DICTIONARY WITHOUT THUMB INDEX, ON WHICH CONTRACT NO. GS-OOS 16914 WAS AWARDED.

THE NATIONAL BUYING DIVISION, FEDERAL SUPPLY SERVICE, WASHINGTON, D.C., BY INVITATION ISSUED ON AUGUST 19, 1957, REQUESTED BIDS--- TO BE OPENED SEPTEMBER 9, 1957--- FOR FURNISHING BOOKS, MAPS AND OTHER PUBLICATIONS, FSC GROUP 76, AS REQUIRED BY GOVERNMENT AGENCIES DURING THE PERIOD DECEMBER 1, 1957, THROUGH NOVEMBER 30, 1958. ITEM 7610-527 2838 COVERS THE FURNISHING OF COPIES OF TABER'S CYCLOPEDIC MEDICAL DICTIONARY WITHOUT THUMB INDEX, PUBLISHED BY F. A. DAVIS COMPANY. YOU SUBMITTED A BID OFFERING TO FURNISH, AMONG OTHERS, THE MEDICAL DICTIONARY COVERED BY ITEM 7610-527-2838 AT A PRICE OF $3 EACH. YOUR BID WAS ACCEPTED AS TO ITEM 7610-527-2838, TOGETHER WITH OTHER ITEMS, AND ON NOVEMBER 22, 1957, A COPY OF YOUR ACCEPTED BID WAS RETURNED TO YOU.

IN YOUR LETTER OF DECEMBER 12, 1957, YOU REQUESTED THAT THE CONTRACT UNIT PRICE OF THE MEDICAL DICTIONARIES COVERED BY ITEM 7610 527-2838 BE INCREASED FROM $3 EACH TO $4.40 EACH TO COVER A TYPOGRAPHICAL ERROR MADE BY YOUR CLERK IN YOUR ORIGINAL BID PRICE AND TO COVER A PRICE INCREASE MADE BY THE PUBLISHER OF THE DICTIONARY AFTER THE SUBMISSION OF YOUR BID AND THE ACCEPTANCE THEREOF. YOU ALSO REQUESTED THAT, IN THE EVENT THE UNIT PRICE OF ITEM 7610-527-2838 COULD NOT BE CORRECTED, SUCH ITEM OF THE CONTRACT BE CANCELED. ALSO, YOU STATED THAT BEFORE THE PUBLISHER OF THE DICTIONARY ANNOUNCED HIS PRICE INCREASE ON THE ITEM IN QUESTION, IT WAS YOUR INTENTION TO QUOTE A PRICE OF $3.80 EACH FOR THE DICTIONARY COVERED BY ITEM 7610-527-2838; THAT THE AMOUNT OF $3.80 IS THE NET PRICE OBTAINED AFTER A DISCOUNT OF 20 PERCENT IS APPLIED TO THE LIST PRICE OF $4.75; THAT SINCE THE PUBLISHER GRANTS YOU A DISCOUNT OF 33 1/3 PERCENT FROM THE LIST PRICE FOR THE DICTIONARIES, THE COST PER COPY WOULD HAVE BEEN $3.17 EACH-- - 17 CENTS ABOVE THE AMOUNT OF YOUR ORIGINAL BID PRICE; AND THAT DURING THE COURSE OF CORRESPONDENCE WITH THE FEDERAL SUPPLY SERVICE IN REGARD TO YOUR REQUEST FOR RELIEF UNDER THE CONTRACT, THE PUBLISHER OF TABER'S CYCLOPEDIC MEDICAL DICTIONARY ANNOUNCED THAT EFFECTIVE DECEMBER 2, 1957, THE LIST PRICE OF THAT DICTIONARY WITHOUT A THUMB INDEX (ITEM 76-527-2838 OF THE INVITATION) WOULD BE $5.50.

THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE AN ERROR THEREIN. THE ABSTRACT OF BIDS SHOWS THAT THE THREE OTHER BIDDERS ON ITEM 7610-527- 2838 QUOTED UNIT PRICES OF $3.80 (TWO BIDS) AND $4.27. THE CONTRACTING OFFICER HAS REPORTED THAT THE DIFFERENCE BETWEEN YOUR BID PRICE ON ITEM 7610-527-2838 AND THE OTHER BIDS THEREON DID NOT PLACE HIM ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID BECAUSE THERE ALSO APPEARED A SIMILAR DIFFERENCE BETWEEN YOUR BID PRICES ON OTHER ITEMS AWARDED TO YOU AND THE PRICES QUOTED BY THE OTHER BIDDERS THEREON. THE DIFFERENCE BETWEEN YOUR BID PRICE ON ITEM 7610-527-2838 AND THE PRICES QUOTED BY THE OTHER BIDDERS ON THAT ITEM IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT HE SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID, PARTICULARLY IN VIEW OF THE PRICES QUOTED BY YOU ON OTHER ITEMS. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER UNTIL AFTER AWARD--- AND, THEREFORE, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED, YOU MADE A CLERICAL ERROR, SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. ALSO, SEE 20 COMP. GEN. 652; AND 26 ID. 415.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INCREASING THE PRICE SPECIFIED IN CONTRACT NO. GS-OOS-16914 FOR ITEM 7610-527-2838, OR FOR CANCELING THAT ITEM OF THE CONTRACT.

YOU ALSO REQUESTED THAT THE CONTRACT PRICE OF ITEM 7610-527-2838 BE INCREASED TO COVER THE INCREASE IN THE PUBLISHER'S LIST PRICE OF THAT ITEM, WHICH OCCURRED AFTER THE SUBMISSION OF YOUR BID AND THE ACCEPTANCE THEREOF. IT IS WELL SETTLED THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION TO BE PAID AND NO PROVISION IS MADE FOR ANY INCREASE IN THE EVENT PERFORMANCE BECOMES MORE EXPENSIVE OR DIFFICULT, THE FACT THAT THE COST OF PERFORMANCE IS INCREASED DOES NOT ENTITLE THE CONTRACTOR TO ADDITIONAL COMPENSATION. SEE COLUMBUS RAILWAY AND POWER COMPANY V. COLUMBUS, 249 U.S. 399; AND BLAUNER CONSTRUCTION COMPANY V. UNITED STATES, 94 C.CLS. 503. ALSO, SEE 19 COMP. GEN. 903; AND 15 ID. 861. INCREASED COST OF PERFORMANCE, WHETHER FORESEEN OR UNFORESEEN, IS ONE OF THE HAZARDS OF THE CONTRACT WHICH NEITHER EXCUSES PERFORMANCE NOR ENTITLES A CONTRACTOR TO ADDITIONAL COMPENSATION. SEE SATTERLEE, ADMINISTRATRIX V. UNITED STATES, 30 C.CLS. 31; AND CHOUTEAU V. UNITED STATES, 95 C.CLS. 62, 68. IT WAS STATED IN THE CASE OF FARMERS' FERTILIZER COMPANY V. LILLIE, 18 F.2D 197, 199, THAT AN ABNORMAL RISE IN THE PRICE OF GOODS, OR IN THE TRANSPORTATION CHARGES, DUE TO THE EXISTENCE OF WAR, OR UNUSUAL TRADE CONDITIONS, SUCH THAT THE DEFENDANT COULD NOT PERFORM ITS CONTRACT WITHOUT GREATER EXPENSE THAN ANTICIPATED, IS NOT SUCH AN IMPOSSIBILITY AS WILL EXCUSE PERFORMANCE.

ACCORDINGLY, SINCE AN EXAMINATION OF THE CONTRACT FAILS TO DISCLOSE A PROVISION FOR AN ADJUSTMENT IN PRICE IN THE EVENT OF AN INCREASE IN COST, THERE IS NO RELIEF WHICH THIS OFFICE MAY GRANT YOU IN THE MATTER.