B-135653, JUN. 6, 1958

B-135653: Jun 6, 1958

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TO WESTINGHOUSE ELECTRIC CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 25. REGARDING AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH PURCHASE ORDER CONTRACT NO. WA-85506-2 WAS AWARDED BY THE GENERAL SERVICES ADMINISTRATION ON AUGUST 8. RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED APRIL 7. SINCE YOUR BID WAS THE LOWEST BID RECEIVED BY THE GENERAL SERVICES ADMINISTRATION ON ITEM NO. 2 IT WAS ACCEPTED ON AUGUST 8. WAS NOT FURNISHED BY YOU. WAS OMITTED FROM YOUR TOTAL BID PRICE SINCE THAT PART OF THE SPECIFICATIONS REQUIRING THE COMPRESSOR MOTOR STARTER WAS ENTIRELY OVERLOOKED BY YOU. THE SOLE QUESTION TO BE DETERMINED IN CASES OF THIS KIND IS NOT WHETHER AN ERROR WAS.

B-135653, JUN. 6, 1958

TO WESTINGHOUSE ELECTRIC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 25, 1958, REGARDING AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH PURCHASE ORDER CONTRACT NO. WA-85506-2 WAS AWARDED BY THE GENERAL SERVICES ADMINISTRATION ON AUGUST 8, 1957, FOR FURNISHING ONE 20-TON PACKAGED WATER CHILLER TO THAT ADMINISTRATION FOR $3,092. ALSO, RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED APRIL 7, 1958, WITH ENCLOSURES, IN CONNECTION WITH THIS MATTER.

IN RESPONSE TO INVITATION NO. 42D-85506-RR-6-28-57, ISSUED ON JUNE 11, 1957, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, REGION 3, YOU SUBMITTED A BID OFFERING TO FURNISH, IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS, ITEM NO. 2, COVERING ONE 20 TON PACKAGED WATER CHILLER FOR A TOTAL PRICE OF $3,092. SINCE YOUR BID WAS THE LOWEST BID RECEIVED BY THE GENERAL SERVICES ADMINISTRATION ON ITEM NO. 2 IT WAS ACCEPTED ON AUGUST 8, 1957. IT APPEARS THAT UPON DELIVERY OF THE PACKAGED WATER CHILLER ON OR ABOUT OCTOBER 25, 1957, THE COMPRESSOR MOTOR STARTER REQUIRED BY THE SPECIFICATIONS AS A PART OF THE UNIT, WAS NOT FURNISHED BY YOU. THEREFORE, BY LETTER DATED MARCH 18, 1958, THE GENERAL SERVICES ADMINISTRATION REQUESTED YOU TO FURNISH THE COMPRESSOR MOTOR STARTER AS QUICKLY AS POSSIBLE. IN YOUR LETTER DATED MARCH 25, 1958, YOU CLAIM THE ADDITIONAL AMOUNT OF $233 FOR THE STARTER, THE COST OF WHICH, YOU STATE, WAS OMITTED FROM YOUR TOTAL BID PRICE SINCE THAT PART OF THE SPECIFICATIONS REQUIRING THE COMPRESSOR MOTOR STARTER WAS ENTIRELY OVERLOOKED BY YOU.

THE SOLE QUESTION TO BE DETERMINED IN CASES OF THIS KIND IS NOT WHETHER AN ERROR WAS, IN FACT, MADE IN THE BID AS ALLEGED, BUT RATHER, WHETHER A FIRM AND BINDING OBLIGATION WAS CREATED BY THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES REPORTED. IN THIS REGARD, THE GENERAL SERVICES ADMINISTRATION REPORTS THAT OTHER BIDS WERE RECEIVED ON ITEM NO. 2 OF THE INVITATION IN THE AMOUNTS OF $3,795, $4,200, $4,790, $5,502, AND AN ALTERNATE BID OF $4,130 WHICH ACCOMPANIED THE $5,502 BID. HENCE, WHILE YOUR BID OF $3,092 WAS APPROXIMATELY $700 LOWER THAN THE NEXT LOWEST BID, IT IS TO BE NOTED THAT THERE ALSO EXISTED RESPECTIVE DIFFERENCES OF APPROXIMATELY $400, $600 AND $700 BETWEEN EACH OF THE NEXT LOW BIDS RECEIVED. IN VIEW OF THIS WIDE RANGE IN THE BIDS IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON NOTICE OF THE PROBABILITY OF ERROR BY REASON OF THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOW BID. SINCE THERE WAS NO INDICATION OF ERROR ON THE FACE OF THE BID ITSELF OR IN ANY OF THE OTHER ATTENDANT CIRCUMSTANCES THERETO, IT MUST BE HELD THAT THE ACCEPTANCE OF YOUR BID OF $3,092 FOR ITEM NO. 2 UNDER THE FACTS REPORTED WAS MADE IN GOOD FAITH. SUCH ACCEPTANCE CONSUMMATED A VALID CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH CONTRACTS.

ACCORDINGLY, THERE IS FOUND NO LEGAL BASIS FOR THE ALLOWANCE OF ANY PART OF THE $233 CLAIMED BY YOU IN THE MATTER.