B-139995, JUL. 9, 1959

B-139995: Jul 9, 1959

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JUNE 23. IS BASED. AWARD WAS MADE ON JANUARY 23. THE EXTENSION WAS ERRONEOUSLY CALCULATED AT $100. ERROR WAS NOT APPARENT ON THE FACE OF THE BID. FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH. THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID. SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL. THE BID WAS ACCEPTED IN GOOD FAITH AND WITHOUT NOTICE OF ANY DEFECT IN THE BID. THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATIONS UNDER THE CONTRACT.

B-139995, JUL. 9, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 23, 1959, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR MICROMATIC MACHINE CORPORATION ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA 36-039 SC-75817, DATED JANUARY 23, 1959, IS BASED.

BY INVITATION NO. SC-36-039-59-550-B4, ISSUED DECEMBER 12, 1958, THE UNITED STATES ARMY SIGNAL SUPPLY AGENCY, PHILADELPHIA, PENNSYLVANIA, REQUESTED BIDS FOR FURNISHING OF CERTAIN AXLE HANDLES AND AXLES. ITEM NO. 2, THE ITEM HERE INVOLVED, CALLED FOR BIDS ON 446 AXLES IN ACCORDANCE WITH SIGNAL CORPS DRAWING NO. SC-D-20714. OF 47 FIRMS SOLICITED, 16 SUBMITTED BIDS ON ITEM NO. 2. THE BIDS RANGED FROM THE CONTRACTOR'S LOW BID OF $4.90 EACH, AS FOLLOWS: $5.45, $5.75, $5.95, $5.99, $6.44, $6.49, $6.93, $7.30, $7.50, $8.30, $9.29, $9.40, $13.40, $14.30, AND $16 EACH. AWARD WAS MADE ON JANUARY 23, 1959, TO MICROMATIC FOR THE ENTIRE QUANTITY OF ITEM NO. 2. BY LETTER DATED MARCH 2, 1959, THE CONTRACTOR ADVISED THE CONTRACTING OFFICER THAT, IN RECHECKING ITS ESTIMATE, IT CAME UPON A SERIOUS ERROR AND THAT IT HAD MISCALCULATED ITS MATERIAL REQUIREMENTS. ALLEGED THAT IT CALCULATED MATERIAL REQUIREMENTS AT 5,100 POUNDS AT $0.18 PER POUND AND THEN, INSTEAD OF EXTENDING TO THE CORRECT AMOUNT OF $920 (ACTUALLY $918), THE EXTENSION WAS ERRONEOUSLY CALCULATED AT $100.

THE CONTRACTING OFFICER STATES THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID AT THE TIME OF AWARD. ERROR WAS NOT APPARENT ON THE FACE OF THE BID, AND WE DO NOT CONSIDER THE DISCREPANCY BETWEEN THE COMPANY'S BID AND THE OTHER BIDS RECEIVED GREAT ENOUGH TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE BID. FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY IT UNTIL MORE THAN A MONTH AFTER THE AWARD OF THE CONTRACT--- AND THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS 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 RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT MUST BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND, SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, AND THE BID WAS ACCEPTED IN GOOD FAITH AND WITHOUT NOTICE OF ANY DEFECT IN THE BID, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATIONS UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES. 56 F.SUPP. 505, 607. ..END :