B-143930, OCT. 6, 1960

B-143930: Oct 6, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 7. BECAUSE OF AN ERROR ALLEGED TO HAVE BEEN MADE IN ITS BID ON WHICH THE CONTRACT IS BASED. OF THESE TOTALS CERTAIN QUANTITIES WERE SET ASIDE FOR SMALL BUSINESS TO BE NEGOTIATED AFTER AWARD OF THE PRINCIPAL QUANTITY. THE ITEMS INVOLVED IN YOUR SUBMISSION ARE 574. THREE OTHER BIDS WERE RECEIVED. FIVE OTHER BIDS WERE RECEIVED. WAS THE LOWEST BID RECEIVED AND AWARD WAS MADE ON DECEMBER 14. REPRESENTATIVES OF THE CONTRACTOR ALLEGED ERROR IN THAT A MISTAKE WAS MADE WITH REGARDS TO THE AMOUNT OF HAM TO BE PUT IN THE CANS. IT WAS STATED THAT IT HAD NOT BEEN NOTICED THAT THE AMOUNT OF HAM (4 1/4 OZ.). IN EACH CAN WAS TO BE DETERMINED AFTER THE CAN HAD BEEN SEALED AND FULLY PROCESSED WITH HEAT RATHER THAN BEFORE PROCESSING.

B-143930, OCT. 6, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 7, 1960, WRITTEN IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION REGARDING THE REQUEST OF STOKELY-VAN CAMP, INC., FOR AN INCREASE IN THE CONTRACT PRICE UNDER ITS CONTRACT WITH THE GOVERNMENT NUMBERED DA 11-027 QM/MSS/82027, BECAUSE OF AN ERROR ALLEGED TO HAVE BEEN MADE IN ITS BID ON WHICH THE CONTRACT IS BASED.

BY NOTICE OF INTENT TO PURCHASE, DATED NOVEMBER 19, 1959, THE MILITARY SUBSISTENCE SUPPLY AGENCY, CHICAGO REGION, REQUESTED OFFERS FOR FURNISHING 1,387,776 12 OZ. CANS OF HAM AND LIMA BEANS, AND AN EQUAL QUANTITY OF 12 OZ. CANS OF BEANS WITH FRANKFURTER CHUNKS IN TOMATO SAUCE. OF THESE TOTALS CERTAIN QUANTITIES WERE SET ASIDE FOR SMALL BUSINESS TO BE NEGOTIATED AFTER AWARD OF THE PRINCIPAL QUANTITY. THE ITEMS INVOLVED IN YOUR SUBMISSION ARE 574,752 CANS OF HAM AND LIMA BEANS, F.O.B. DESTINATION, GREENEVILLE, TENNESSEE, AND 238,272 CANS OF HAM AND LIMA BEANS, F.O.B. DESTINATION, MODESTO, CALIFORNIA. ON THESE ITEMS, STOKELY- VAN CAMP, INC., BID $0.2675 AND $0.2780 PER CAN, RESPECTIVELY. AS TO THE QUANTITY TO BE DELIVERED F.O.B. GREENEVILLE, TENNESSEE, THREE OTHER BIDS WERE RECEIVED, RANGING FROM $0.3156 PER CAN TO $0.3916 PER CAN. AS TO THE OTHER QUANTITY TO BE DELIVERED TO MODESTO, CALIFORNIA, FIVE OTHER BIDS WERE RECEIVED, RANGING FROM $0.3230 PER CAN TO $0.3922 PER CAN. THE BID OF STOKELY VAN CAMP, INC., WAS THE LOWEST BID RECEIVED AND AWARD WAS MADE ON DECEMBER 14, 1959. ON JANUARY 28, 1960, REPRESENTATIVES OF THE CONTRACTOR ALLEGED ERROR IN THAT A MISTAKE WAS MADE WITH REGARDS TO THE AMOUNT OF HAM TO BE PUT IN THE CANS. IT WAS STATED THAT IT HAD NOT BEEN NOTICED THAT THE AMOUNT OF HAM (4 1/4 OZ.) IN EACH CAN WAS TO BE DETERMINED AFTER THE CAN HAD BEEN SEALED AND FULLY PROCESSED WITH HEAT RATHER THAN BEFORE PROCESSING. ALSO, IT HAS BEEN STATED THAT DUE TO SHRINKAGE IT IS NECESSARY TO PLACE 6 1/4 OUNCES OF HAM IN EACH CAN TO PRODUCE 4 1/4 OUNCES AFTER PROCESSING AND THEREFORE THE CONTRACTOR REQUESTS AN ADDITIONAL AMOUNT OF $0.09208 PER CAN.

THE CONTRACTING OFFICER HAS REPORTED THAT ALTHOUGH THE COST ANALYSIS INFORMATION PRIOR TO AWARD SHOWED THAT THE CONTRACTOR'S BID WAS APPROXIMATELY 22 PERCENT LESS THAN THE PURCHASE OF THE ITEM HERE INVOLVED IN SEPTEMBER 1958, THE PRIOR PURCHASE WAS FOR 198,569 CANS AS AGAINST 813,024 CANS IN THE INSTANT CASE, AND THAT THE MARKET PRICE FOR SKINNED HAMS, THE MOST COSTLY COMPONENT, WAS CURRENTLY 16.67 PERCENT LESS THAN IN SEPTEMBER 1958. AND WHILE THE CONTRACTOR HAS INDICATED THAT THE ALLEGED ERROR WAS BROUGHT ABOUT BY A CHANGE IN THE GOVERNMENT SPECIFICATIONS FROM THOSE OBTAINING IN THE PRIOR PROCUREMENT, IT IS NOT CLAIMED THAT THERE IS ANY AMBIGUITY IN THE SPECIFICATIONS BUT THAT THE GOVERNMENT FAILED TO INVITE PARTICULAR ATTENTION TO THE CHANGE IN THE SPECIFICATIONS. THE CONTRACTING OFFICER CONCLUDES THAT THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE CONTRACTOR MADE AN ERROR IN ITS BID AND SINCE THE BID WAS ACCEPTED WITHOUT ANY CONSTRUCTIVE NOTICE OF ANY ERROR THEREIN, HE RECOMMENDS THAT RELIEF BE DENIED.

IT IS WELL ESTABLISHED THAT NO RELIEF MAY BE GRANTED TO A PARTY TO AN EXECUTORY CONTRACT IN THE CASE OF A UNILATERAL MISTAKE. SALIGMAN V. UNITED STATES, 56 F.SUPP. 505; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249. THE FACT THAT THE CONTRACTOR FAILED TO NOTICE THAT THE SPECIFICATIONS AS TO AMOUNT OF HAM IN EACH CAN WERE APPLICABLE TO THE COOKED PRODUCT AFFORDS NO BASIS FOR RELIEF. HYDE PARK CLOTHES, INC. V. UNITED STATES, 114 CT.CL. 424. ALSO, THE FACT THAT BY REASON OF THE CHANGE IN SPECIFICATIONS IT BECAME NECESSARY TO RESORT TO HANDPACKING THE CANS RATHER THAN FILLING THE CANS BY MACHINE LIKEWISE PROVIDES NO LEGAL BASIS FOR AN ADJUSTMENT IN THE CONTRACT PRICE.

ACCORDINGLY, ON THE PRESENT RECORD THE CONTRACTOR'S REQUEST MUST BE DENIED.