B-142165, MAR. 15, 1960

B-142165: Mar 15, 1960

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INC.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18. BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION BASED ON AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH PURCHASE ORDER NO. 18351-B59 WAS BASED. IT IS REPORTED THAT BECAUSE THE PRICES QUOTED BY YOU WERE CONSIDERABLY BELOW THE PRICE RANGE OF THE OTHER BIDS RECEIVED. YOU WERE CONTACTED ON MAY 13. SMITH OF YOUR FIRM ASSURED THE GOVERNMENT BUYER THAT THE PRICES QUOTED BY YOU WERE CORRECT. A VERBAL ORDER WAS AWARDED TO YOU ON ALL ITEMS AND LATER CONFIRMED BY THE ISSUANCE OF A PURCHASE ORDER. THE PRIMARY QUESTION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF.

B-142165, MAR. 15, 1960

TO DALTON-HEGE RADIO SUPPLY COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 18, 1960, REQUESTING RECONSIDERATION OF SETTLEMENT DATED FEBRUARY 8, 1960, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION BASED ON AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON WHICH PURCHASE ORDER NO. 18351-B59 WAS BASED.

BY REQUEST FOR PROPOSAL NO. ME-71957-59, THE REDSTONE ARSENAL, ALABAMA, REQUESTED QUOTATIONS FOR FURNISHING 18 DIFFERENT ITEMS OF GOLD PLATED TERMINALS. IN RESPONSE YOU SUBMITTED A BID OFFERING TO FURNISH THE TERMINALS DESCRIBED UNDER ITEMS 1 TO 18 AT THE PRICES SET FORTH OPPOSITE EACH ITEM.

IT IS REPORTED THAT BECAUSE THE PRICES QUOTED BY YOU WERE CONSIDERABLY BELOW THE PRICE RANGE OF THE OTHER BIDS RECEIVED, YOU WERE CONTACTED ON MAY 13, 1959, BY TELEPHONE, FOR THE PURPOSE OF VERIFYING YOUR PRICES AND TO DETERMINE IF THE PRICES QUOTED BY YOU INCLUDED THE COST OF GOLD PLATING THE TERMINALS; THAT A MR. SMITH OF YOUR FIRM ASSURED THE GOVERNMENT BUYER THAT THE PRICES QUOTED BY YOU WERE CORRECT; AND THAT ON THE BASIS OF MR. SMITH'S VERIFICATION, A VERBAL ORDER WAS AWARDED TO YOU ON ALL ITEMS AND LATER CONFIRMED BY THE ISSUANCE OF A PURCHASE ORDER.

IN A LETTER DATED JUNE 15, 1959, YOU ADVISED THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE BY YOU IN YOUR PROPOSAL IN THAT YOU HAD FAILED TO INCLUDE IN YOUR BID PRICE THE COST OF GOLD PLATING THE TERMINALS. LETTER DATED JUNE 22, 1959, YOU SUBMITTED A REVISED QUOTATION TO SHOW THE COST OF THE OMITTED GOLD PLATING. ALSO, BY LETTER DATED JULY 2, 1959, YOU SUBMITTED A COPY OF A QUOTATION RECEIVED FROM YOUR SUPPLIER, CAMBRIDGE THERMIONIC CORPORATION, ON THE TERMINALS.

THE PRIMARY QUESTION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163, WHEREIN THE COURT OF CLAIMS STATED:

"* * * THE PARTIES ARE DEALING AT ARMS LENGTH AND BIDDERS ARE PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN PERFORM THE WORK SPECIFIED AT A REASONABLE PROFIT. IF THEY FAIL TO DO SO, AS THE PLAINTIFF DID IN THIS CASE, THE GOVERNMENT CANNOT FOR THAT REASON BE HELD FOR THE RESULTING LOSS.'

ANY ERROR THAT WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND UNDER THE HOLDINGS OF THE COURTS YOUR CORPORATION IS NOT ENTITLED TO RELIEF BY REASON OF SUCH ERROR. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 103 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES 56 F.SUPP. 505.

THE RECORD ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT TO ASCERTAIN THE CORRECTNESS OF YOUR BID. IT WAS NOT UNTIL AFTER YOU UNEQUIVOCALLY CONFIRMED YOUR BID THAT THE CONTRACTING OFFICER CONSIDERED IT CORRECT AND PROPER FOR AWARD. HAD THE CONTRACTING OFFICER THEREAFTER NOT AWARDED THE CONTRACT TO YOU AS THE LOWEST RESPONSIBLE BIDDER, HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 97 A. 774; SHRIMPTON MFG. COMPANY V. BRIN, 125 S.W. 942; ALABAMA SHIRT AND TROUSER COMPANY V. UNITED STATES, 121 C.CLS. 313. MOREOVER, THE FACTS OF RECORD PRECLUDE ANY ASSUMPTION OF BAD FAITH OR ARBITRARY ACTION ON THE PART OF THE CONTRACTING OFFICER. 27 COMP. GEN. 17.

FOR THE REASONS HEREIN SET FORTH, THE ACTION TAKEN IN THE SETTLEMENT OF FEBRUARY 8, 1960, APPEARS TO HAVE BEEN CORRECT AND IS SUSTAINED.