B-144232, NOV. 4, 1960

B-144232: Nov 4, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED OCTOBER 12. THE NEXT HIGHEST BID FOR THE ENTIRE QUANTITY WAS $0.2388. FOR A SMALL QUANTITY WAS $0.449 FOR 100. SHORTLY AFTER THE BIDS WERE OPENED. THE COMPANY'S REPRESENTATIVE SAID THAT THERE WAS AN ERROR IN ITS ALL OR NONE BID. WHICH SHOULD HAVE BEEN $0.51. WAS NOT CONVINCED THAT THE COMPANY INTENDED TO BID $0.51 INSTEAD OF $0.57. IT IS NOT CLEAR FROM THE BID AS TO THE UNIT PRICE BID. ALTHOUGH THE EXTENSION OF THE TOTAL AMOUNT WAS MADE ON THE BASIS OF $0.57 RATHER THAN $0.51. THE RECORD SHOWS THAT THE HOLSTERS WERE THEREAFTER REMOVED AND PAYMENT MADE THEREFOR. IT IS CLEAR THAT BOTH THE GOVERNMENT AND THE COMPANY WERE FULLY AWARE AS TO THE ALLEGED ERROR RESPECTING THE PISTOL HOLSTERS AT THE TIME THE NOTICE OF AWARD WAS MAILED.

B-144232, NOV. 4, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 12, 1960, WITH ENCLOSURES, FROM DEPUTY THE QUARTERMASTER GENERAL, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR LIN-BAR SALES, INC., ALLEGES IT MADE ON ITEM 4 OF CONTRACT NO. DA (S/-25-044 AV-196.

ON INVITATION FOR BIDS NO. 25-044-S-60-22, LIN-BAR SALES, INC., SUBMITTED A BID IN VARYING AMOUNTS ON ITEM 4, 51,666 UNUSED PISTOL HOLSTERS. THE BID RANGED FROM $0.62 EACH FOR 1000, TO $0.47 EACH FOR 31,666, WITH AN ALL OR NONE BID OF $0.57 EACH. THE NEXT HIGHEST BID FOR THE ENTIRE QUANTITY WAS $0.2388, AND FOR A SMALL QUANTITY WAS $0.449 FOR 100. SHORTLY AFTER THE BIDS WERE OPENED, THE COMPANY'S REPRESENTATIVE SAID THAT THERE WAS AN ERROR IN ITS ALL OR NONE BID, WHICH SHOULD HAVE BEEN $0.51. THE COMPANY ALLEGES IT MISREAD THE "51" ON ITS WORKSHEET AS "57.' LATER THE COMPANY SUBMITTED ITS WORKSHEETS TO THE CONTRACTING OFFICER, WHO, ACCORDING TO THE RECORD, WAS NOT CONVINCED THAT THE COMPANY INTENDED TO BID $0.51 INSTEAD OF $0.57. IT IS NOT CLEAR FROM THE BID AS TO THE UNIT PRICE BID, ALTHOUGH THE EXTENSION OF THE TOTAL AMOUNT WAS MADE ON THE BASIS OF $0.57 RATHER THAN $0.51. ON JULY 19, 1960, THE COMPANY WROTE THE CONTRACTING OFFICER STATING THAT IT WOULD ACCEPT THE ITEM AT THE BID PRICE OF $0.57, AND WOULD NOT "HOLD THE GOVERNMENT RESPONSIBLE.' IT ASKED, HOWEVER, THAT CONSIDERATION BE GIVEN TO THE FACTS PRESENTED AND THAT, IF POSSIBLE, THE CONTRACT PRICE BE REDUCED TO $0.51 EACH. ON JULY 25, 1960, THE CONTRACTING OFFICER MAILED THE NOTICE OF AWARD TO THE CONTRACTOR. THE RECORD SHOWS THAT THE HOLSTERS WERE THEREAFTER REMOVED AND PAYMENT MADE THEREFOR.

A REVIEW OF THE ENTIRE RECORD IN THIS CASE PRESENTS, IN THE FIRST INSTANCE, THE PRINCIPAL QUESTION AS TO THE LEGAL CONSEQUENCE TO BE ATTACHED TO THE ACCEPTANCE OF THE BID OF $0.57 EACH BY THE COMPANY SUBSEQUENT TO THE ALLEGATION OF ERROR. IT IS CLEAR THAT BOTH THE GOVERNMENT AND THE COMPANY WERE FULLY AWARE AS TO THE ALLEGED ERROR RESPECTING THE PISTOL HOLSTERS AT THE TIME THE NOTICE OF AWARD WAS MAILED. THE RESULTING CONTRACT IS PRESUMED, IN LAW, TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168, 173; SIMPSON V. UNITED STATES, 172 U.S. 372.

IN THE CASE OF THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 192 CT.CL. 699, CERTIORARI DENIED 325 U.S. 866, THE PLAINTIFF SOUGHT TO RECOVER $88,000, ALLEGING THAT IT OMITTED AN ITEM OF THAT AMOUNT IN PREPARING ITS BID. THE COURT, IN DENYING RECOVERY OF THE AMOUNT OF THE ALLEGED MISTAKE, STATED AT PAGE 717---

"AT THE TIME THE CONTRACT WAS AWARDED TO THE PLAINTIFF, PURSUANT TO ITS BID, AND AT THE TIME IT SIGNED THE CONTRACT, THE PLAINTIFF WAS NOT MISTAKEN. IT HAD BECOME AWARE OF THE MISTAKE IN ITS BID, AND FACED THE PROBLEM OF WHETHER IT WAS WILLING TO SIGN A CONTRACT FOR THE FIGURE WHICH IT HAD, BY MISTAKE SINCE DISCOVERED, BID. THE GOVERNMENT WAS ALSO AWARE OF THE PLAINTIFF'S CLAIM THAT IT HAD MADE A MISTAKE IN ITS BID. THERE WAS NOT, THEN, AT THE TIME OF SIGNING THE CONTRACT, ANY LACK OF KNOWLEDGE, EITHER MUTUAL OR UNILATERAL, WHICH CAUSED EITHER OF THEM TO MAKE THE CONTRACT WHICH THEY DID MAKE, WHEN IN FACT THEY INTENDED TO MAKE A DIFFERENT CONTRACT. THAT BEING SO, IF WE SHOULD REFORM THE CONTRACT AS THE PLAINTIFF REQUESTS, WE WOULD BE MAKING FOR THE PARTIES THE VERY CONTRACT WHICH ONE OF THEM, THE GOVERNMENT, EXPRESSLY REFUSED TO MAKE AT THAT TIME, THOUGH REQUESTED TO DO SO BY THE PLAINTIFF.'

ALSO, SEE BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., INC., 133 F.2D 399; 20 COMP. GEN. 652; 23 ID. 596; 25 ID. 536; 26 ID. 426; 31 ID. 384. IT IS REASONABLE TO HOLD THAT LIN BAR SALES, INC., IS NOW ESTOPPED FROM CLAIMING ERROR AS TO THE PISTOL HOLSTERS, SINCE TO PERMIT CONSIDERATION OF THAT ERROR WOULD BE TANTAMOUNT TO PERMITTING LIN-BAR SALES, INC., TO DISAFFIRM ITS CONTRACT SUBSEQUENT TO ACCEPTANCE OF THE CONTRACT, DESPITE THAT ERROR. SEE 19 AM.JUR., ESTOPPAL, SECTION 148; 17 C.J.S. CONTRACTS, SECTION 446.

THEREFORE, IT IS OUR OPINION THAT ANY CORRECTION OF THE CONTRACT PRICE AT THIS TIME WOULD BE UNJUSTIFIED.