B-144019, DEC. 16, 1960

B-144019: Dec 16, 1960

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INC: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9. IN WHICH YOU WERE REQUESTED TO FURNISH CERTAIN EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ERROR IN YOUR BID ON WHICH CONTRACT NO. GS-018-4680 WAS AWARDED TO YOU BY THE GENERAL SERVICES ADMINISTRATION. SINCE WE HAVE NOT HEARD FROM YOU FURTHER REGARDING THE MATTER. IT IS PRESUMED YOU ARE WILLING TO HAVE YOUR CLAIM SETTLED ON THE BASIS OF THE RECORD NOW BEFORE US. AS THESE MAXIMUM PRICE QUOTATIONS WERE THE LOWEST RECEIVED FOR THOSE ITEMS YOUR BID WAS ACCEPTED. YOU WERE NOTIFIED OF THE AWARD TO YOU OF ITEMS NOS. 127. IV WERE NOT INTENDED TO BE YOUR MAXIMUM PRICES. IV OF YOUR BID SHEET WERE NOT THE MAXIMUM PRICES WHICH YOU WOULD CHARGE BUT WERE THE NET DIFFERENCES AFTER DEDUCTION OF COLUMN III "AMOUNT TO BE ADDED TO.

B-144019, DEC. 16, 1960

TO AROOSTOOK PETROLEUM PRODUCTS, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 9, 1960, AND OUR REPLY THERETO DATED SEPTEMBER 22, 1960, IN WHICH YOU WERE REQUESTED TO FURNISH CERTAIN EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ERROR IN YOUR BID ON WHICH CONTRACT NO. GS-018-4680 WAS AWARDED TO YOU BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, REGION 1, BOSTON, MASSACHUSETTS, FOR FURNISHING CERTAIN PETROLEUM PRODUCTS AS CALLED FOR BY BID INVITATION NO. BO-C-I-10,687-60.

A FULL REPORT OF THE FACTS PERTAINING TO THE CONTRACT TRANSACTION HAS NOW BEEN RECEIVED FROM THE GENERAL SERVICES ADMINISTRATION (GSA). SINCE WE HAVE NOT HEARD FROM YOU FURTHER REGARDING THE MATTER, IT IS PRESUMED YOU ARE WILLING TO HAVE YOUR CLAIM SETTLED ON THE BASIS OF THE RECORD NOW BEFORE US.

THE RECORD SHOWS THAT YOUR BID SUBMITTED IN RESPONSE TO THE CITED INVITATION CONTAINED A PRICE QUOTATION OF ".139 CENTS" IN THE MAXIMUM PRICE COLUMN NO. IV FOR ITEMS NOS. 127 AND 133, AND ".126 CENTS" FOR ITEM NO. 161. AS THESE MAXIMUM PRICE QUOTATIONS WERE THE LOWEST RECEIVED FOR THOSE ITEMS YOUR BID WAS ACCEPTED, AND BY LETTER DATED JULY 12, 1960, YOU WERE NOTIFIED OF THE AWARD TO YOU OF ITEMS NOS. 127, 133, AND 161. THEREAFTER, IN LETTERS TO THE BUSINESS SERVICE CENTER YOU ALLEGED MISTAKE IN YOUR BID, AS SUBMITTED, IN THAT THE FIGURES APPEARING IN COLUMN NO. IV WERE NOT INTENDED TO BE YOUR MAXIMUM PRICES. IN EXPLANATION OF THE ERROR, YOU STATED THAT IN THE PREPARATION OF THE BID SHEET, THROUGH ERROR, THE TYPIST PLACED A FIGURE OPPOSITE ITEMS NOS. 127 AND 133 AND 161 IN THE MAXIMUM PRICE COLUMN NO. IV; THAT THE AMOUNTS SHOWN IN COLUMN NO. IV OF YOUR BID SHEET WERE NOT THE MAXIMUM PRICES WHICH YOU WOULD CHARGE BUT WERE THE NET DIFFERENCES AFTER DEDUCTION OF COLUMN III "AMOUNT TO BE ADDED TO, OR DEDUCTED FROM REFERENCED PRICE PER GALLON OR PER BBL.' FROM COLUMN II "PRICE AS OF 4/1/60.' YOU REQUESTED THAT YOUR BID BE CONSIDERED WITHOUT A MAXIMUM PRICE AS TO THESE THREE ITEMS. IN REPLY, THE CHIEF OF THE PROCUREMENT BRANCH, BUYING DIVISION, BY LETTER DATED SEPTEMBER 1, 1960, UPON ADVICE OF THE REGIONAL COUNSEL, INFORMED YOU THAT YOUR REQUEST TO HAVE THE MAXIMUM PRICE PROVISION OF THE CONTRACT DISREGARDED HAD BEEN CONSIDERED AND THAT NO RELIEF COULD BE ALLOWED YOU BY THAT ACTIVITY.

YOUR LETTER DATED SEPTEMBER 9, 1960, TO OUR OFFICE APPEALED THAT DECISION AND STATED THAT YOUR REASON FOR TAKING THE MATTER UP DIRECTLY WITH OUR OFFICE IS BECAUSE OF YOUR CONTENTION THAT THE ERROR IN THE FIGURES SHOWN IN THE MAXIMUM PRICE COLUMN OF YOUR BID WAS A NATURAL ERROR AND THAT WHILE YOU SHOULD HAVE SCRUTINIZED THE GSA BID FORM MORE CAREFULLY IT WAS SUCH A SIMPLE MATTER FOR YOUR TYPIST TO MAKE THIS ERROR IN VIEW OF PREVIOUS OTHER BIDS WHICH SHE HAD JUST SUBMITTED.

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

THE ESTABLISHED RULE IS THAT, WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED AND AWARD OF A CONTRACT MADE, THE BIDDER MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER AT THE TIME OF ACCEPTANCE OF THE BID WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF SUCH ERROR. 26 COMP. DEC. 286; GEN. 526; 8 ID. 362; 20 ID. 652, 657.

THE SUBMISSION OF A BID IN RESPONSE TO AN INVITATION IS, OF COURSE,VOLUNTARY. THE RESPONSIBILITY OF PREPARING A BID IN RESPONSE TO AN INVITATION IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163.

YOU ADMIT, AND THE RECORD SUBSTANTIATES THE FACT, THAT ANY ERROR WHICH MAY HAVE BEEN MADE BY YOU IN YOUR BID WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61, WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID:

"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE. THE PARTY COMPLAINING MUST HAVE EXERCISED AT LEAST THE DEGREE OF DILIGENCE "WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON.'"

SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND WOULD NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259.

YOU DID NOT ALLEGE ERROR IN YOUR BID UNTIL AFTER AWARD OF THE CONTRACT, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER OTHERWISE HAD ANY INFORMATION OF ANY ERROR IN THE BID. NEITHER IS THERE ANYTHING IN YOUR BID TO SUGGEST THAT AN ERROR MAY HAVE BEEN MADE THEREIN, AND YOUR RESPECTIVE BID PRICES FOR ITEMS NOS. 127, 133, AND 161 ARE NOT OUT OF LINE WITH THE NEXT LOW BIDS FOR THOSE ITEMS.

SINCE IT APPEARS THAT THE CONTRACTING OFFICER WAS WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR IN YOUR BID, IT MUST BE CONCLUDED THAT HIS ACCEPTANCE OF THE BID WAS IN GOOD FAITH, THUS CONSUMMATING A BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT, OR TO MODIFY EXISTING CONTRACTS WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE AMERICAN SALES CORPORATION V. UNITED STATES, 27 F.2D 389, AFFIRMED 32 F.2D 31, CERTIORARI DENIED, 280 U.S. 574; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 CT.CL. 327, 335.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF ON CONTRACT NO. GS-01S-4680.