B-143929, OCT. 27, 1960

B-143929: Oct 27, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF SEPTEMBER 7. ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT DA-36-243-QM/CTM/-8104-T-60 IS BASED. THE RESPONSIVE BIDS RECEIVED UNDER THE INVITATION WERE AS FOLLOWS: TABLE: ITEM 1 ITEM 2 DESTINATION DESTINATION BIDDER (A) (B) (C)(A) (B) (C) TOTAL PRICE MASTERCRAFT $2.10 $1.95 $2.10 $2.80 $2.65 $2.80 $ 91. 76 INCH X 36 INCH COTTON MATTRESS PADS WERE PROCURED AT AN AVERAGE PRICE OF $2.21125 AND IN MARCH 1955. 78 INCH X 40 INCH COTTON MATTRESS PADS WERE PURCHASED AT $2.90 EACH F.O.B. THE AWARD WAS THEREFORE MADE TO THE LOW BIDDER. WAS SENT TO IT INSTEAD OF FEDERAL SPECIFICATION CCC-C-430. THAT WHEN THE SPECIFICATION WAS RECEIVED IT FAILED TO NOTICE THAT THE IDENTIFYING NUMBER ON THE CLOTH SPECIFICATION WAS 440 INSTEAD OF 430 CALLED FOR IN THE INVITATION.

B-143929, OCT. 27, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 7, 1960, WITH ENCLOSURES, FROM THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING A DECISION REGARDING AN ERROR MASTERCRAFT MANUFACTURING CORP. ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT DA-36-243-QM/CTM/-8104-T-60 IS BASED.

INVITATION QM/CTM/-36-243-60-587, AS AMENDED, SOLICITED F.O.B.DESTINATION BIDS FOR COTTON MATTRESS PADS OF TWO DIFFERENT SIZES. ITEM 1 COVERED 39,546 UNITS SIZE 75 INCHES X 38 INCHES, TO BE DELIVERED AS FOLLOWS: 12,672 TO DESTINATION A, 17,046 TO DESTINATION B, AND 9,828 TO DESTINATION C. ITEM 2 COVERED 3,996 UNITS, SIZE 75 INCHES X 52 INCHES, TO BE DELIVERED AS OLLOWS: 1,278 TO DESTINATION A, 1,710 TO DESTINATION B, AND 1,008 TO DESTINATION C.

THE RESPONSIVE BIDS RECEIVED UNDER THE INVITATION WERE AS FOLLOWS:

TABLE:

ITEM 1 ITEM 2

DESTINATION DESTINATION BIDDER (A) (B) (C)(A)

(B) (C) TOTAL PRICE MASTERCRAFT $2.10 $1.95 $2.10 $2.80 $2.65 $2.80 $ 91,422.00 NO. 1 2.236 2.209 2.302 3.027 2.992 3.115 101,648.81

4 2.81 2.95 3.13 4.17 4.35 4.58 134,040.06

5 2.97 2.97 3.11 3.95 3.95 4.10 134,762.94

2 3.10 3.12 3.19 4.20 4.22 4.31 140,746.32

6 3.23 3.19 4.22 4.17 4.13 5.16 154,374.30

3 3.95 3.95 3.95 5.055.05 5.05 176,386.50

BEFORE MAKING AN AWARD, THE CONTRACTING OFFICER REVIEWED THE RANGE OF BID PRICES AND THE PRIOR PROCUREMENT HISTORY. IN NOVEMBER 1957, 76 INCH X 36 INCH COTTON MATTRESS PADS WERE PROCURED AT AN AVERAGE PRICE OF $2.21125 AND IN MARCH 1955, 78 INCH X 40 INCH COTTON MATTRESS PADS WERE PURCHASED AT $2.90 EACH F.O.B. ORIGIN AND THE COTTON TEXTILES MARKET HAD EXPERIENCED A TWENTY PERCENT PRICE INCREASE AFTER THOSE PROCUREMENTS, HOWEVER, THE CONTRACTING OFFICER CONSIDERED THE RANGE OF BID PRICES INDICATIVE OF EFFECTIVE COMPETITION. THE AWARD WAS THEREFORE MADE TO THE LOW BIDDER, MASTERCRAFT MANUFACTURING CORP.

SEVERAL WEEKS THEREAFTER, THE CONTRACTOR ALLEGED THAT UPON RECHECKING ITS BID, IT DISCOVERED AN ERROR. IT ALLEGES THAT IN RESPONSE TO A TELEGRAPHIC REQUEST TO THE PROCURING AGENCY FOR SPECIFICATIONS FOR INVITATION QM/CTM/- 36-243-60-587, FEDERAL SPECIFICATION CCC-C-440, COVERING COTTON CHEESECLOTH, WAS SENT TO IT INSTEAD OF FEDERAL SPECIFICATION CCC-C-430, COVERING COTTON SHEETING, AND THAT WHEN THE SPECIFICATION WAS RECEIVED IT FAILED TO NOTICE THAT THE IDENTIFYING NUMBER ON THE CLOTH SPECIFICATION WAS 440 INSTEAD OF 430 CALLED FOR IN THE INVITATION. USING THE INFORMATION IN THE WRONG SPECIFICATION IT OBTAINED A QUOTATION OF $0.10 A YARD FROM ITS MATERIAL SUPPLIER AND COMPUTED THE BID ON THAT BASIS. HOWEVER, IT STATES THAT THE CLOTH SPECIFIED IN THE CONTRACT ACTUALLY COSTS $0.25 PER YARD AND THAT THIS AMOUNTS TO AN ERROR OF $0.60 PER PAD OR AN ADDITIONAL TOTAL COST OF $26,125.20.

THE CONTRACTING OFFICER STATES THAT THERE IS NO RECORD IN THE PROCURING AGENCY OF THE SPECIFICATION THAT WAS ACTUALLY SENT TO THE CONTRACTOR BECAUSE THE REQUEST WOULD NORMALLY BE COMPLIED WITH AS A ROUTINE MATTER WITHOUT COMING TO THE PERSONAL ATTENTION OF THE CONTRACTING OFFICER OR HIS ASSISTANTS. FURTHER, THE CONTRACTING OFFICER VIEWS THE ERROR AS A UNILATERAL ONE FOR WHICH THE CONTRACTOR SHOULD BEAR THE CONSEQUENCES FOR FAILING TO CHECK THE SPECIFICATIONS BEFORE PREPARING THE BID.

THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY THE CONTRACTOR TO INDICATE THAT THE PRICES QUOTED WERE BASED ON ANYTHING OTHER THAN THE SPECIFICATIONS REFERENCED IN THE INVITATION. FURTHER,AS INDICATED, THE CONTRACTING OFFICER WAS NOT AWARE OF THE POSSIBILITY OF ERROR PRIOR TO AWARD, AND IN VIEW OF THE WIDE RANGE IN THE BID PRICES, WE FIND NO BASIS TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR. THEREFORE, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, IN THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID, BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE CONSIDERATION SPECIFIED IN CONTRACT DA-36- 243-QM/CTM/-8104-T-60.