B-136436, JUL. 2, 1958

B-136436, JUL. 2, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 11, 1958, FROM THE ASSISTANT SECRETARY (LOGISTICS), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY BRAME SPECIALTY COMPANY, INC., DURHAM, NORTH CAROLINA, TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. QM-31-001-58 62, ISSUED ON JANUARY 24, 1958, BY THE PURCHASING AND CONTRACTING DIVISION, FORT BRAGG, NORTH CAROLINA, FOR FURNISHING 32 ITEMS OF SUPPLIES.

IN RESPONSE TO THE INVITATION, BRAME SPECIALTY COMPANY, INC., SUBMITTED ITS BID DATED FEBRUARY 8, 1958, ON SEVERAL ITEMS, INCLUDING A BID OF $0.6381 EACH FOR 698 WINDOW SQUEEGEE BLADES (A TOTAL PRICE OF $445.39) UNDER ITEM NO. 26. BIDS WERE OPENED FEBRUARY 10, 1958, AND BRAME SPECIALTY COMPANY'S BID WAS ACCEPTED AS TO ITEM NO. 26 AND BECAME THE BASIS OF PURCHASE ORDER NO. 3513-58, DATED MARCH 4, 1958. BY LETTER DATED APRIL 22, 1958, BRAME SPECIALTY COMPANY, INC., ALLEGED AN ERROR IN ITS BID ARISING FROM AN ERROR IN TRANSFERRING THE COST OF SQUEEGEES FROM THE MANUFACTURER'S PRICE LIST TO THE WORKING COPY OF THE INVITATION AND REQUESTED MODIFICATION OF THE PURCHASE ORDER BY CHANGING THE PRICE FROM $0.6381 EACH TO $1.1377 EACH. IT WAS STATED IN THE LETTER THAT THE BID PRICE WAS LESS THAN THE ACTUAL COST TO THE BIDDER, WHICH IS SHOWN BY THE SUPPLIER'S INVOICE TO HAVE BEEN $633.54.

THE OTHER BIDS RECEIVED ON ITEM NO. 26 WERE IN THE AMOUNTS OF $0.739, $0.75, $0.75, $0.89, AND $0.985 PER UNIT. IN HIS REPORT DATED APRIL 29, 1958, THE CONTRACTING OFFICER STATES THAT THE DISPARITY BETWEEN BIDS WAS NOT INDICATIVE OF ERROR. IT IS STATED IN FIRST INDORSEMENT OF MAY 15, 1958, FROM HEADQUARTERS, THIRD UNITED STATES ARMY, FORT MCPHERSON, GEORGIA, THAT THREE PRIOR PURCHASES OF SQUEEGEES FROM VARIOUS FIRMS WERE AT UNIT PRICES OF $0.65, $0.90, AND $1.35.

IN 20 COMP. GEN. 652, IT STATED:

"THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 526; 8 ID. 362.'

IN THE INSTANT MATTER, THE QUESTION FOR CONSIDERATION IS NOT WHETHER BRAME SPECIALTY COMPANY, INC., MADE AN ERROR IN ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ACCEPTANCE OF THE BID. THERE WAS NOTHING IN THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER THE AWARD. THE CONTRACTING OFFICER HAS STATED THAT NO ERROR WAS APPARENT TO HIM PRIOR TO AWARD. THE DIFFERENCE BETWEEN THE PRICE QUOTED BY BRAME SPECIALTY COMPANY, INC., AND THE PRICES QUOTED BY OTHER BIDDERS APPARENTLY WAS NOT SO GREAT AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR AND IT DOES NOT APPEAR THAT SUCH DIFFERENCE WAS SO GREAT THAT HE SHOULD HAVE BEEN ON NOTICE OF ERROR. NEITHER WAS THE ERROR INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT.

ACCORDINGLY, THE ESTABLISHED RULE ABOVE QUOTED IS FOR APPLICATION HERE. THE ACCEPTANCE OF THE BRAME SPECIALTY COMPANY, INC., BID UNDER THE CIRCUMSTANCES 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; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75; 26 COMP. GEN. 415; 29 ID. 323, AND AUTHORITIES CITED IN THOSE DECISIONS.

FOR THE REASONS ABOVE SET OUT, NO VALID BASIS APPEARS FOR INCREASING THE CONTRACT PRICE.

THE PAPERS TRANSMITTED WITH THE LETTER OF JUNE 11, 1958, ARE RETURNED HEREWITH.