B-135118, MAR. 7, 1958

B-135118: Mar 7, 1958

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17. WHICH DISALLOWED YOUR CLAIM FOR $119.75 STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH PURCHASE ORDER NO. 30314-B57 DATED APRIL 8. WAS BASED. SINCE THIS EQUIPMENT WAS TO BE USED ON A TM MODEL HARDINGE MILLING MACHINE YOU WERE THE ONLY SOURCE SOLICITED. YOU SUBMITTED A BID OFFERING TO FURNISH THE AFOREMENTIONED EQUIPMENT FOR $792 AND YOUR BID WAS ACCEPTED BY THE PURCHASE ORDER. WHICH WAS SUBSEQUENT TO THE AWARD. YOU ADVISED THE CONTRACTING/ORDERING OFFICER THAT IN CHECKING THE ORDER AGAINST THE QUOTATION IT WAS DISCOVERED THAT YOU HAD NOT NOTICED THE PRICE OF THE DIVIDING HEAD WAS TO INCLUDE THE COST OF THE CHUCK AND COLLETS AND THE QUOTED PRICE OF $792 COVERED ONLY THE COST OF THE DIVIDING HEAD.

B-135118, MAR. 7, 1958

TO HARDINGE BROTHERS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1958, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 6, 1958, WHICH DISALLOWED YOUR CLAIM FOR $119.75 STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH PURCHASE ORDER NO. 30314-B57 DATED APRIL 8, 1957, WAS BASED.

THE DEPARTMENT OF THE ARMY, U.S. ORDNANCE CORPS, REDSTONE ARSENAL, HUNTSVILLE, ALABAMA, REQUESTED YOUR PRICE FOR ONE (1) DIVIDING HEAD AND TAILSTOCK WITH THE FOLLOWING COMPONENTS: ONE (1) UNIVERSAL JAW CHUCK, AND FIVE (5) 5C COLLETS OF THE FOLLOWING SIZES, 1 INCH, 7/8 INCH, 3/4 INCH, 5/8 INCH, AND 1/2 INCH. SINCE THIS EQUIPMENT WAS TO BE USED ON A TM MODEL HARDINGE MILLING MACHINE YOU WERE THE ONLY SOURCE SOLICITED.

YOU SUBMITTED A BID OFFERING TO FURNISH THE AFOREMENTIONED EQUIPMENT FOR $792 AND YOUR BID WAS ACCEPTED BY THE PURCHASE ORDER. BY LETTER DATED APRIL 16, 1957, WHICH WAS SUBSEQUENT TO THE AWARD, YOU ADVISED THE CONTRACTING/ORDERING OFFICER THAT IN CHECKING THE ORDER AGAINST THE QUOTATION IT WAS DISCOVERED THAT YOU HAD NOT NOTICED THE PRICE OF THE DIVIDING HEAD WAS TO INCLUDE THE COST OF THE CHUCK AND COLLETS AND THE QUOTED PRICE OF $792 COVERED ONLY THE COST OF THE DIVIDING HEAD. ALTHOUGH YOU CONCEDE THAT YOU WERE IN ERROR IN NOT NOTING THAT THE CHUCK AND COLLETS WERE TO BE INCLUDED IN THE COST OF THE DIVIDING HEAD YOU REQUEST THAT YOU BE ALLOWED TO ADD $119.75 TO YOUR BID TO COVER THE COST OF THE CHUCK AND COLLETS. THE RECORD SHOWS THAT THE EQUIPMENT WAS SHIPPED COMPLETE ON MAY 29, 1957, AND THAT YOU HAVE BEEN PAID THE CONTRACT PRICE OF $792 FOR THE EQUIPMENT FURNISHED. BY LETTER DATED SEPTEMBER 4, 1957, YOU SUBMITTED AN INVOICE IN THE AMOUNT OF $119.75 TO COVER THE COST OF THE CHUCK AND COLLETS, TOGETHER WITH A TYPICAL QUOTATION COVERING A TM HARDINGE MILLING MACHINE WHICH SHOWS THE PRICE OF THE DIVIDING HEAD AS WELL AS THE CHUCK AND COLLETS.

THE PRINCIPAL QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF YOUR BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE PRICE OF $792 DID NOT INCLUDE THE COST OF THE CHUCK AND COLLETS AND SINCE YOUR BID WAS THE ONLY ONE RECEIVED IT MAY NOT BE PRESUMED THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID. THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 U.S. 645.

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF YOUR BID WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THE ERROR WHICH YOU ALLEGE WAS MADE IN YOUR BID PRICE WAS DUE SOLELY TO YOUR OWN OVERSIGHT AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :