B-134813, JAN. 20, 1958

B-134813: Jan 20, 1958

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED JANUARY 6. ALLEGES IT MADE IN ITS BID ON WHICH PURCHASE ORDER NO. 27-17911 29 IS BASED. AFTER AWARD WAS MADE TO THE CONTRACTOR. IT ALLEGED THAT AN ERROR WAS MADE IN ITS QUOTATION IN THAT THE PRICE SHOULD HAVE BEEN $4.70 PER UNIT. THE PRINTED PRICE LIST IT SUBMITTED TO SUPPORT ITS ALLEGATION OF ERROR DISCLOSES THAT THE PRICE IS $4 PER UNIT TO FURNISH BETWEEN 5. NINE DAYS BEFORE THE SUBJECT PROPOSAL WAS RECEIVED. THERE WAS NOTHING ON THE FACE OF THE PROPOSAL TO INDICATE THAT THE OFFERED PRICE WAS NOT AS INTENDED. THE APPARENTLY BONA FIDE ERROR WOULD NOT NECESSARILY HAVE BEEN SO OBVIOUS THAT HE SHOULD HAVE DISCOVERED IT. AS THE PRICE OF $4 PER UNIT FOR A LARGE QUANTITY IS NOT OUT OF LINE WITH THE PREVIOUSLY QUOTED PRICE OF $4.70 PER UNIT FOR A SMALL QUANTITY.

B-134813, JAN. 20, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED JANUARY 6, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION REGARDING AN ERROR AMERICAN INSTRUMENT COMPANY, INC., NEW YORK, NEW YORK, ALLEGES IT MADE IN ITS BID ON WHICH PURCHASE ORDER NO. 27-17911 29 IS BASED.

IN RESPONSE TO REQUEST FOR PROPOSALS NO. ENG-30-075-/NEG-57/-126, AMERICAN INSTRUMENT COMPANY, INC., SOLE SOURCE OF SUPPLY OF CERTAIN HYDROTECTORS, QUOTED A PRICE OF $4 PER UNIT TO FURNISH 540 UNITS. AFTER AWARD WAS MADE TO THE CONTRACTOR, IT ALLEGED THAT AN ERROR WAS MADE IN ITS QUOTATION IN THAT THE PRICE SHOULD HAVE BEEN $4.70 PER UNIT. THE PRINTED PRICE LIST IT SUBMITTED TO SUPPORT ITS ALLEGATION OF ERROR DISCLOSES THAT THE PRICE IS $4 PER UNIT TO FURNISH BETWEEN 5,000 AND 9,999 UNITS AND $4.70 PER UNIT TO FURNISH BETWEEN 1 AND 999 UNITS. ALSO, NINE DAYS BEFORE THE SUBJECT PROPOSAL WAS RECEIVED, ANOTHER CONTRACTING OFFICER IN THE SAME PROCUREMENT OFFICE AWARDED A PURCHASE ORDER TO THE CONTRACTOR FOR 60 SIMILAR HYDROTECTORS AT A PRICE OF $4.70 PER UNIT.

THERE WAS NOTHING ON THE FACE OF THE PROPOSAL TO INDICATE THAT THE OFFERED PRICE WAS NOT AS INTENDED. EVEN IF THE CONTRACTING OFFICER HAD ASCERTAINED THE PRIOR PROCUREMENT PRICE, THE APPARENTLY BONA FIDE ERROR WOULD NOT NECESSARILY HAVE BEEN SO OBVIOUS THAT HE SHOULD HAVE DISCOVERED IT, AS THE PRICE OF $4 PER UNIT FOR A LARGE QUANTITY IS NOT OUT OF LINE WITH THE PREVIOUSLY QUOTED PRICE OF $4.70 PER UNIT FOR A SMALL QUANTITY. CONSEQUENTLY, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE PRICE QUOTATION.

THE RESPONSIBILITY FOR PREPARATION OF A BID IS ENTIRELY THAT OF THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THE MISTAKE WAS DUE TO THE BIDDER'S CARELESSNESS, NEGLIGENCE OR OVERSIGHT; IT WAS NOT INDUCED BY THE GOVERNMENT; AND THERE WAS NOTHING TO CAUSE THE CONTRACTING OFFICER TO SUSPECT THAT THE QUOTATION WAS NOT AS INTENDED. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61. THEREFORE, SINCE NO ERROR WAS ALLEGED UNTIL AFTER AWARD, 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. THE CONTRACTOR IS NOT ENTITLED TO ANY REDRESS FOR THE CONSEQUENCES OF ITS UNILATERAL MISTAKE. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR AUTHORIZING ANY INCREASE IN THE CONTRACT PRICE.