B-136527, JUL. 14, 1958

B-136527: Jul 14, 1958

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JUNE 17. ITEMS 2 AND 3 WERE AWARDED TO THE CONTRACTOR ON THE BASIS OF ITS LOW BID. WHICH IS THE ITEM INVOLVED IN THIS MATTER. IS DESCRIBED IN THE INVITATION AND CONTRACT AS OLLOWS: "ANTENNA ELEMENT: BRASS. FOUR OTHER BIDS WERE WITHIN THE RANGE OF THE CONTRACTOR'S UNIT PRICE. THREE PRIOR PROCUREMENTS OF THIS ITEM WERE MADE AT UNIT PRICES OF $3.24. ALTHOUGH IT IS REPORTED THAT COMPARISON WITH THESE PRIOR PROCUREMENTS WAS NOT MADE AT THE TIME OF AWARD. IT IS NOTED. THE CONTRACTOR NOW CONTENDS THAT (A) THE DESCRIPTION OF ITEM TWO (2) WAS MISLEADING AND DOES NOT COMPLETELY COINCIDE WITH THE ABOVE REFERENCED DRAWING SINCE THE DESCRIPTION SPELLS OUT ONLY TWO COMPONENT PARTS WHEREAS THE DRAWING CALLS FOR EIGHT (8) COMPONENT PARTS AND (B) THAT IT INCURRED EXPENSES FOR LABOR AND MATERIAL FOR THE ADDITIONAL SIX (6) COMPONENT PARTS.

B-136527, JUL. 14, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 17, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO WHETHER THE APPLICATION OF STAADEN TOOL AND DIE CORPORATION FOR ADDITIONAL COMPENSATION UNDER CONTRACT NO. DA-36-039 SC-73777 MAY BE GRANTED.

THE ARMY SIGNAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, BY INVITATION NO. SC-36-039-57-836-55, DATED OCTOBER 18, 1956, REQUESTED BIDS FOR FURNISHING THREE ITEMS OF SUPPLIES. ITEMS 2 AND 3 WERE AWARDED TO THE CONTRACTOR ON THE BASIS OF ITS LOW BID. ITEM NO. 2, WHICH IS THE ITEM INVOLVED IN THIS MATTER, IS DESCRIBED IN THE INVITATION AND CONTRACT AS OLLOWS:

"ANTENNA ELEMENT: BRASS; CHRO FINISH; TUBR SHAPE; O/A DIM., 3 FT 10 INCHES LG X 9/16 INCHES DIA., ONE 1/2 INCH - 20 THREADED MTG STUD; USED AS ANT SECT; P/O SIG ANTENNA TYPE NO. AS-20/TRC-1; SIG DWG NO. SC D-14512G"

THE ABSTRACT OF BIDS INDICATES THE UNIT PRICES SUBMITTED FOR ITEM 2 BY TEN OTHER BIDDERS RANGED FROM THE CONTRACTOR'S UNIT PRICE OF $2.25 TO A HIGH UNIT PRICE OF $18.35. HOWEVER, FOUR OTHER BIDS WERE WITHIN THE RANGE OF THE CONTRACTOR'S UNIT PRICE, RANGING FROM $2.44 TO $4.781 PER UNIT. THREE PRIOR PROCUREMENTS OF THIS ITEM WERE MADE AT UNIT PRICES OF $3.24, $4.15 AND $3.15 EACH, ALTHOUGH IT IS REPORTED THAT COMPARISON WITH THESE PRIOR PROCUREMENTS WAS NOT MADE AT THE TIME OF AWARD. IT IS NOTED, HOWEVER, THAT A PREVIOUS SUPPLIER BID A UNIT PRICE OF $2.44 AS COMPARED WITH HIS PREVIOUS PRICE OF $3.51 PER UNIT.

THE CONTRACTOR NOW CONTENDS THAT (A) THE DESCRIPTION OF ITEM TWO (2) WAS MISLEADING AND DOES NOT COMPLETELY COINCIDE WITH THE ABOVE REFERENCED DRAWING SINCE THE DESCRIPTION SPELLS OUT ONLY TWO COMPONENT PARTS WHEREAS THE DRAWING CALLS FOR EIGHT (8) COMPONENT PARTS AND (B) THAT IT INCURRED EXPENSES FOR LABOR AND MATERIAL FOR THE ADDITIONAL SIX (6) COMPONENT PARTS.

IT APPEARS THAT THE CONTRACTOR'S INTERPRETATION OF THE GOVERNMENT'S REQUIREMENT WAS FULLY AND COMPLETELY INVESTIGATED BY THE SIGNAL CORPS AND AS A RESULT THE CONTRACTOR COMPLETED DELIVERY ON THE BASIS OF THE SIGNAL CORPS INTERPRETATION OF THE CONTRACT, THAT IS, A COMPLETE ANTENNA ASSEMBLY WITH EIGHT (8) COMPONENT PARTS AS SHOWN IN THE DRAWING REFERENCED IN THE DESCRIPTION.

WITH REGARD TO THE CONTRACTOR'S STATEMENT THAT IT WAS ACTUALLY BIDDING ON ONLY ITEMS 1 AND 3 OF THE DRAWING, THE CONTRACTING OFFICER REPORTS THAT THE OVER-ALL LENGTH OF THE ANTENNA ASSEMBLY COMPRISING THESE TWO ITEMS WOULD BE ONLY 22 3/4 INCHES WHEREAS THE DESCRIPTION OF ITEM 2 OF THE CONTRACT CALLS FOR 46 INCHES OVER-ALL LENGTH. ALSO, IT APPEARS THAT THE DRAWING WAS REFERENCED IN TOTAL IN THE DESCRIPTION OF ITEM 2, THEREFORE, THE CONTRACTOR SHOULD HAVE REALIZED THAT ALL PARTS SHOWN IN THE DRAWING WERE REQUIRED TO COMPLETE THE ITEM. WHENEVER A DRAWING IS SPECIFIED AS PROCUREMENT DATA, WITHOUT SPECIFYING ITEMS OR PART NUMBERS THEREOF, THE REQUIREMENT IS FOR EVERYTHING THE DRAWING CALLS FOR; IN THIS CASE, THE COMPLETE ASSEMBLY. DESCRIPTIONS IN CONTRACTS MUST, OF NECESSITY, BE MORE OR LESS GENERAL, A REFERENCED DRAWING USUALLY GIVING THE SPECIFIC REQUIREMENTS. HENCE, IF THERE WAS ANY DOUBT ON THE CONTRACTOR'S PART AS TO THE REQUIREMENT, IT SHOULD HAVE REQUESTED A CLARIFICATION PRIOR TO EXECUTING A CONTRACT. SEE 20 COMP. GEN. 652.

ALTHOUGH AS INVESTIGATION BY THE ADMINISTRATIVE OFFICE TENDS TO CONFIRM THAT THE CONTRACTOR DID IN FACT MAKE A MISTAKE AS ALLEGED, THAT FACT ALONE DOES NOT ENTITLE THE CONTRACTOR TO BE PAID ADDITIONAL COMPENSATION. THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER THE CONTRACTOR MADE AN ERROR IN ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE CONTRACTOR'S BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD. THE ACCEPTANCE OF THE CONTRACTOR'S BID, IN THE CIRCUMSTANCES INVOLVED, WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO AND VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT IS AUTHORIZED TO WAIVE OR RELEASE. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. MOREOVER, THE INVITATION AND SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT WHEN ALL PARTS OF THE INVITATION ARE READ TOGETHER, AND THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE CONTRACTOR. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THEREFORE, IF THE CONTRACTOR MADE AN ERROR IN ITS COMPUTATION THAT IS A MATTER WITH WHICH THE GOVERNMENT IS NOT CONCERNED AND THE CONTRACTOR MUST ASSUME THE CONSEQUENCES THEREOF.

SUCH ERROR AS WAS MADE WAS DUE SOLELY TO THE CONTRACTOR'S NEGLIGENCE OR THAT OF ITS AGENTS, AND WAS NOT INDUCED OR CONTRIBUTED TO IN ANY WAY BY THE GOVERNMENT. HENCE, THE ERROR WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE THE CONTRACTOR 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.

IN VIEW OF THE FOREGOING, THE REQUEST OF THE STAADEN TOOL AND DIE CORPORATION FOR ADDITIONAL COMPENSATION MUST BE DENIED.