B-143993, SEP. 27, 1960

B-143993: Sep 27, 1960

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UNITED STATES INFORMATION AGENCY: REFERENCE IS MADE TO LETTER OF SEPTEMBER 15. WERE REQUESTED ON A UNIT AND TOTAL PRICE BASIS FOR FURNISHING. STANFORD'S BID WAS ACCEPTED BY NOTICE OF AWARD DATED JUNE 28. M. DARE PAPER COMPANY IS $15.30 PER CWT. WHICH TENDS TO SHOW THAT THE ERROR WAS MADE AS ALLEGED. THE CONTRACTING OFFICER WAS FURTHER ADVISED THAT THE ERROR HAD NOT BEEN DISCOVERED UNTIL AFTER THE CONTRACT HAD BEEN AWARDED AND THE ORDER HAD BEEN PLACED WITH STANFORD'S SUPPLIER FOR PRODUCTION. THAT THE CONTRACTOR STOOD TO LOSE APPROXIMATELY $546 UNLESS THE CONTRACT WERE AMENDED TO SHOW A UNIT PRICE OF $9.27 PER REAM. WHICH WAS REQUESTED. THE CONTRACTING OFFICER DENIED STANFORD'S REQUEST FOR RELIEF IN THE MATTER ON THE BASIS THAT THE ERROR ALLEGED WAS UNILATERAL AND THE DIFFERENCE IN PRICE BETWEEN THE TWO BIDS WAS NOT SUCH AS TO PUT THE CONTRACTING OFFICER ON NOTICE AS TO THE POSSIBILITY OF ERROR.

B-143993, SEP. 27, 1960

TO GEORGE V. ALLEN, DIRECTOR, UNITED STATES INFORMATION AGENCY:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 15, 1960, FROM THE ASSISTANT DIRECTOR (ADMINISTRATION), SUBMITTING FOR OUR CONSIDERATION THE MATTER OF AN ALLEGED MISTAKE IN BID MADE BY STANFORD PAPER SALES CORPORATION IN THE SUBMISSION OF ITS BID UNDER INVITATION NO. 60-152 37-G, ISSUED BY YOUR AGENCY.

UNDER THE INVITATION, BIDS, TO BE OPENED JUNE 23, 1960, WERE REQUESTED ON A UNIT AND TOTAL PRICE BASIS FOR FURNISHING, AMONG OTHER ITEMS, 600 REAMS OF ANTIQUE BOOK PAPER, GPO LOT NO. 28, DELIVERY TO BE MADE F.A.S. VESSEL AT THE PORT OF SHIPMENT DESIGNATED BY THE BIDDER, FOR EXPORT SHIPMENT TO THE NEAR EAST.

STANFORD PAPER SALES CORPORATION SUBMITTED A BID IN WHICH IT OFFERED TO FURNISH THE ITEM F.A.S. VESSEL, PHILADELPHIA, PENNSYLVANIA, AT THE UNIT PRICE OF $8.27 PER REAM, OR FOR A TOTAL CONSIDERATION OF $4,962, AND WALKER GOULARD PLEHN COMPANY, INC., THE ONLY OTHER BIDDER FOR THIS ITEM, SUBMITTED A BID OFFERING TO FURNISH THE ITEM F.A.S. VESSEL, NEW YORK, NEW YORK, AT THE UNIT PRICE OF $10.18. STANFORD'S BID WAS ACCEPTED BY NOTICE OF AWARD DATED JUNE 28, 1960, AS PROVIDED IN THE INVITATION. HOWEVER, BY LETTER OF JULY 18, 1960, STANFORD ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE A MISTAKE IN THE SUBMISSION OF ITS BID DUE TO THE FOLLOWING CIRCUMSTANCES:

"IN PREPARING THIS BID ON JUNE 23, WE UNFORTUNATELY MADE A MISTAKE IN CONVERTING OUR BID PRICE FROM A "PER CWT" BASIS TO A "PER REAM" BASIS. OUR COST ON THIS PAPER FROM THE D. M. DARE PAPER COMPANY IS $15.30 PER CWT. WE MARKED UP THIS COST BY 1 PERCENT AND INTENDED TO QUOTE USIA $15.45 PER CWT. THE PAPER SPECIFIED UNDER ITEM NO. 1 WEIGHS 60 LBS. (NOMINAL WEIGHT) PER REAM AND, IN MULTIPLYING $15.45 PER CWT. TIMES THIS REAM WEIGHT, 60 LBS., WE ERRED AND OBTAINED A RESULT OF 8.270 INSTEAD OF 9.270.'

WITH THE ABOVE LETTER, STANFORD SUBMITTED A PHOTOSTAT OF A LETTER DATED JUNE 9, 1960, FROM ITS SUPPLIER, WHICH TENDS TO SHOW THAT THE ERROR WAS MADE AS ALLEGED. THE CONTRACTING OFFICER WAS FURTHER ADVISED THAT THE ERROR HAD NOT BEEN DISCOVERED UNTIL AFTER THE CONTRACT HAD BEEN AWARDED AND THE ORDER HAD BEEN PLACED WITH STANFORD'S SUPPLIER FOR PRODUCTION, AND THAT THE CONTRACTOR STOOD TO LOSE APPROXIMATELY $546 UNLESS THE CONTRACT WERE AMENDED TO SHOW A UNIT PRICE OF $9.27 PER REAM, WHICH WAS REQUESTED.

BY LETTER OF AUGUST 26, 1960, THE CONTRACTING OFFICER DENIED STANFORD'S REQUEST FOR RELIEF IN THE MATTER ON THE BASIS THAT THE ERROR ALLEGED WAS UNILATERAL AND THE DIFFERENCE IN PRICE BETWEEN THE TWO BIDS WAS NOT SUCH AS TO PUT THE CONTRACTING OFFICER ON NOTICE AS TO THE POSSIBILITY OF ERROR, CITING SEVERAL DECISIONS OF OUR OFFICE IN SUPPORT OF THE POSITION TAKEN. STANFORD REPLIED BY LETTER OF AUGUST 29, 1960, REQUESTING RECONSIDERATION OF ITS REQUEST FOR RELIEF.

THE FACTORS MENTIONED IN THE CONTRACTOR'S LETTER OF AUGUST 29, 1960, DO NOT ALTER THE FACT THAT THE ERROR IN QUESTION WAS CHARGEABLE SOLELY TO THE CONTRACTOR'S OWN NEGLIGENCE AND THAT THE CIRCUMSTANCES IN THE CASE WERE NOT SUCH AS TO CHARGE THE CONTRACTING OFFICER WITH NOTICE THEREOF. THIS CONNECTION, IT IS WELL ESTABLISHED THAT THE ACCEPTANCE OF A BID SUCH AS HERE INVOLVED, IN GOOD FAITH AND WITHOUT NOTICE OF ERROR, CONSUMMATES A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE RIGHT WHICH VESTED IN THE GOVERNMENT, TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH ITS TERMS, CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE 18 COMP. GEN. 942, 950.

ACCORDINGLY, YOU ARE ADVISED THAT NO LEGAL BASIS EXISTS FOR RELIEVING THE STANFORD PAPER SALES CORPORATION FROM ITS OBLIGATION TO FURNISH THE PAPER INVOLVED FOR THE AMOUNT OF ITS BID PRICE.