B-143802, SEP. 1, 1960

B-143802: Sep 1, 1960

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TO NORTHWEST PLUMBING SUPPLY COMPANY: REFERENCE IS MADE TO LETTERS DATED JULY 20 AND 25. N251-14268A (X) BECAUSE OF AN ALLEGED ERROR IN YOUR BID ON WHICH THE CONTRACT WAS BASED. YOUR BID WAS CORRESPONDINGLY ERRONEOUS. THE CONTRACTING OFFICER ADVISED YOU THAT HIS ACTIVITY WAS WITHOUT AUTHORITY TO GRANT RELIEF FROM AN ERROR IN BID AND THAT ALL MISTAKES OF SUCH NATURE MUST BE REFERRED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR DECISION. AS NO REPLY TO THAT LETTER WAS RECEIVED BY THE CONTRACTING OFFICER. IT WAS ASSUMED THAT YOU INTENDED TO FURNISH THE MATERIAL AS CONTRACTED. ALTHOUGH THE DELIVERY DATE WAS SPECIFIED IN THE CONTRACT AS APRIL 18. DIRECTED YOUR ATTENTION TO THE FACT THAT THE CONTRACT WAS SUBJECT TO TERMINATION FOR DEFAULT IF THE GOVERNMENT CHOOSE TO EXERCISE ITS RIGHTS UNDER SECTION 11 OF THE GENERAL PROVISIONS ENTITLED "DEFAULT.'.

B-143802, SEP. 1, 1960

TO NORTHWEST PLUMBING SUPPLY COMPANY:

REFERENCE IS MADE TO LETTERS DATED JULY 20 AND 25, 1960, IN WHICH YOU REQUEST CANCELLATION OF CONTRACT NO. N251-14268A (X) BECAUSE OF AN ALLEGED ERROR IN YOUR BID ON WHICH THE CONTRACT WAS BASED.

ON DECEMBER 16, 1959, THE PUGET SOUND NAVAL SHIPYARD, BREMERTON,WASHINGTON, AWARDED THE CONTRACT TO YOU AS LOW RESPONSIVE BIDDER ON ITEMS NOS. 8, 9, 10, 11, 27, 28, 29, AND 30, PURSUANT TO IFB 251/124/60, IN THE AMOUNT OF $1,114.16, FOR FURNISHING 116 WELDING NECK FLANGES, WITH DELIVERY TO BE MADE WITHIN 120 DAYS TO THE DESTINATIONS, AS SPECIFIED. IN A LETTER DATED FEBRUARY 2, 1960, TO THE CONTRACTING OFFICER YOU ALLEGED THAT YOUR SUPPLIER, LADISH CO., CUDAHY, WISCONSIN, HAD MADE AN ERROR IN ITS QUOTATION TO YOU IN THAT IT HAD QUOTED PRICES ON "SOCKET WELD FLANGES" INSTEAD OF "WELDING NECK FLANGES" AS CALLED FOR BY THE BID INVITATION FOR THOSE ITEMS AND, HENCE, YOUR BID WAS CORRESPONDINGLY ERRONEOUS. ALSO, ON THE BASIS OF YOUR UNDERSTANDING FROM A REPRESENTATIVE OF THE SUPPLIER THAT THE CONTRACT COULD BE CANCELED AND THAT THE CONTRACTING OFFICER WOULD INITIATE SUCH ACTION, YOU REQUESTED INFORMATION AS TO THE STATUS OF THE CONTRACT.

IN REPLY, BY LETTER DATED FEBRUARY 17, 1960, THE CONTRACTING OFFICER ADVISED YOU THAT HIS ACTIVITY WAS WITHOUT AUTHORITY TO GRANT RELIEF FROM AN ERROR IN BID AND THAT ALL MISTAKES OF SUCH NATURE MUST BE REFERRED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR DECISION. AS NO REPLY TO THAT LETTER WAS RECEIVED BY THE CONTRACTING OFFICER, IT WAS ASSUMED THAT YOU INTENDED TO FURNISH THE MATERIAL AS CONTRACTED. SINCE NO MATERIAL HAD BEEN RECEIVED BY JULY 13, 1960, ALTHOUGH THE DELIVERY DATE WAS SPECIFIED IN THE CONTRACT AS APRIL 18, 1960, THE CONTRACTING OFFICER, IN LETTER DATED JULY 13, 1960, DIRECTED YOUR ATTENTION TO THE FACT THAT THE CONTRACT WAS SUBJECT TO TERMINATION FOR DEFAULT IF THE GOVERNMENT CHOOSE TO EXERCISE ITS RIGHTS UNDER SECTION 11 OF THE GENERAL PROVISIONS ENTITLED "DEFAULT.' HOWEVER, BEFORE TAKING SUCH ACTION THE CONTRACTING OFFICER REQUESTED YOU TO SHOW CAUSE, IN WRITING, AS TO WHY THE CONTRACT SHOULD NOT BE TERMINATED FOR DEFAULT.

THEREAFTER, IN LETTERS OF JULY 20 AND JULY 25, 1960, ADDRESSED TO OUR OFFICE, VIA THE CONTRACTING OFFICER, YOU REASSERTED YOUR REQUEST FOR CANCELLATION OF THE CONTRACT ON THE GROUND THAT YOUR BID WAS ERRONEOUS. YOU AGAIN EXPLAINED THAT YOUR BID WAS BASED ON ERRONEOUS QUOTATIONS BY YOUR SUPPLIER, LADISH CO., AND THAT YOUR PRICES, EXCEPT FOR THE ERROR, SHOULD HAVE BEEN AS FOLLOWS:

"FLANGE, WELDING NECK, 600 PSI, ASA CARBON STEEL, ASTM A105-55T, GRADE I, DRILLED IN ACCORDANCE WITH ASA B-16.5-1957; AS FOLLOWS:

TABLE:

QUANTITY UNIT TOTAL

"ITEM 8: 2 1/2 IN. IPS 2.323 IN. BORE 4 8.59 34.36

9: 3 IN. IPS 2.900 IN. BORE 12 10.23 122.76

10: 4 IN. IPS 3.826 IN. BORE 40 17.50 700.00

11: 5 IN. IPS 4.813 IN. BORE 2 28.09 56.18

"ABOVE PRICES ARE THE SAME ON ITEMS 27 THROUGH 30.'

IN SUPPORT OF THE ERROR, AS ALLEGED, YOU FURNISHED A COPY OF PAGES 1 AND 2 OF YOUR SUPPLIER'S QUOTATIONS, AS WELL AS ITS PUBLISHED PRICE SHEETS COVERING THE MATERIAL IN QUESTION WHICH SHOW THE DIFFERENCE IN PRICE BETWEEN "SOCKET WELDING" FLANGES AND "WELDING NECK" FLANGES.

THE RECORD SHOWS THAT LADISH CO. CONTENDS THAT THE ERROR IN ITS QUOTATION TO YOU OCCURRED BECAUSE THE INVITATION WAS MISLEADING; ALSO, THAT SINCE IT MAINTAINS PUBLISHED PRICES ON THE MATERIAL THE DIFFERENCE IN THE PRICES BETWEEN THE TWO TYPES OF FLANGES SHOULD HAVE ALERTED THE BUYER TO THE FACT THAT THE PRICES ON ITEMS NOS. 8 THROUGH 11 WERE IN ERROR. LADISH CO. ALSO INFORMED YOU THAT SINCE IT QUOTED ON "SOCKET WELD FLANGES" FOR THE ITEMS IN QUESTION IT IS UNWILLING TO FURNISH "WELD NECK FLANGES" AT ITS QUOTED PRICES. IN THIS REGARD, YOU STATE THAT AN INVESTIGATION ON YOUR PART SHOWS THAT THE GOVERNMENT WAS JUSTIFIED IN NOT QUESTIONING THE BID PRICES SINCE TWO OTHER BIDDERS WHO OFFERED LADISH CO. MATERIAL MADE THE IDENTICAL ERROR IN NOT DISCOVERING THAT THE WRITTEN LADISH QUOTE DID NOT AGREE IN DESCRIPTION WITH THE BID INQUIRY; ALSO, THAT HAD YOUR FIRM BEEN THE ONLY BIDDER QUOTING ON LADISH MATERIAL THE ERROR WOULD HAVE BEEN READILY APPARENT. YOU STATE, THEREFORE, THAT YOU BELIEVE YOURSELF TO BE THE INNOCENT VICTIM OF AN ERROR THAT WAS SO DECEPTIVE THAT NEITHER YOUR PERSONNEL, YOUR COMPETITORS, NOR PUGET SOUND NAVAL SHIPYARD DISCOVERED IT PRIOR TO AWARD.

THE RECORD DOES NOT ESTABLISH THAT THERE WAS A MUTUAL MISTAKE IN THE AWARD OF THE CONTRACT. IN FACT, IT IS NOT SHOWN THAT THERE WAS A MISTAKE, AS SUCH, IN YOUR BID, THE BID AND THE ACCEPTANCE THEREOF BEING EXACTLY AS INTENDED BY THE CONTRACTING PARTIES. THE ERROR COMPLAINED OF BY THE SUPPLIER WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT--- THE BID INVITATION DESCRIPTION BEING CLEAR AND UNAMBIGUOUS AS TO THE TYPE OF MATERIAL,"WELDING NECK FLANGES," REQUIRED TO BE FURNISHED UNDER ITEMS NOS. 8, 9, 10, 11, 27, 28, 29, AND 30. UNDER THESE CIRCUMSTANCES, SUCH AN ERROR AFFORDS A CONTRACTOR NO RELIEF BY THE GOVERNMENT AND HE MUST ASSUME THE CONSEQUENCES OF THE ERROR OR LOOK TO HIS SUPPLIER FOR ADJUSTMENT. COMP. GEN. 504; 18 ID. 28; 31 ID. 479.)

ACCORDINGLY, THE GOOD FAITH ACCEPTANCE OF YOUR BID RESULTED IN A LEGAL AND BINDING CONTRACT, AND THERE IS NO LEGAL BASIS FOR RELIEVING YOU FROM YOUR OBLIGATIONS THEREUNDER. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.