B-145080, APR. 18, 1961

B-145080: Apr 18, 1961

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TO STAUFFER CHEMICAL COMPANY: REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 10. GS- 00S-32702 IN VIEW OF AN ERROR ALLEGED TO HAVE BEEN MADE IN THE BID UPON WHICH THE CONTRACT WAS AWARDED. WHICH WAS THE LOWEST BID RECEIVED. WAS ACCEPTED BY THE FEDERAL SUPPLY SERVICE ON SEPTEMBER 14. - AND THAT IT WAS YOUR INTENTION TO QUOTE PRICES F.O.B. PRESENTS NO BASIS FOR CANCELLATION THEREOF UNLESS IT CAN BE SHOWN THAT THE MISTAKE WAS MUTUAL OR WAS SO APPARENT AS TO CHARGE THE GOVERNMENT CONTRACTING OFFICER WITH NOTICE OF THE PROBABILITY OF THE MISTAKE AT THE TIME THE BID WAS ACCEPTED. THE DELIVERY PRICE REQUIREMENTS SET FORTH IN PARAGRAPH 3 OF THE SPECIAL PROVISIONS WERE COMPLETELY CLEAR. ANY OMISSION IN COMPUTING YOUR BID WAS STRICTLY A UNILATERAL MISTAKE AND ONE TO WHICH THE GOVERNMENT DID NOT CONTRIBUTE TO IN ANY MANNER.

B-145080, APR. 18, 1961

TO STAUFFER CHEMICAL COMPANY:

REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 10, 1961, AND MARCH 8, 1961, IN FURTHER REGARD TO YOUR REQUEST FOR RELIEF UNDER CONTRACT NO. GS- 00S-32702 IN VIEW OF AN ERROR ALLEGED TO HAVE BEEN MADE IN THE BID UPON WHICH THE CONTRACT WAS AWARDED.

IN RESPONSE TO AN INVITATION ISSUED ON JUNE 29, 1960, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, YOU SUBMITTED A BID OFFERING TO FURNISH, IN COMPLIANCE WITH THE APPLICABLE SCHEDULE, TERMS, CONDITIONS, ETC., SUCH QUANTITIES OF ALUMINUM SULPHATE HYDRATED AS MAY BE REQUIRED BY THE GOVERNMENT DURING THE PERIOD NOVEMBER 15, 1960, THROUGH NOVEMBER 14, 1961, AT $0.0211 A POUND FOR MINIMUM CARLOAD LOTS, $0.0285 A POUND FOR LESS THAN CARLOAD LOTS, AND $0.0211 A POUND FOR MINIMUM TRUCKLOAD LOTS. YOUR BID, WHICH WAS THE LOWEST BID RECEIVED, WAS ACCEPTED BY THE FEDERAL SUPPLY SERVICE ON SEPTEMBER 14, 1960. BY LETTER DATED JANUARY 9, 1961, YOU ADVISED THE SERVICE THAT YOU HAD INADVERTENTLY OMITTED CERTAIN EXCEPTIONS TO PARAGRAPH 3 OF THE SPECIAL PROVISIONS OF THE INVITATION- - WHICH STIPULATED THAT PRICES QUOTED MUST COVER DELIVERY TO DESTINATION--- AND THAT IT WAS YOUR INTENTION TO QUOTE PRICES F.O.B. BASTROP, LOUISIANA, AND BY REASON OF THIS ALLEGED OMISSION, YOU REQUEST THAT YOU BE RELIEVED FROM YOUR OBLIGATION OF PERFORMING FURTHER UNDER THE CONTRACT.

AN ERROR IN A BID ALLEGED AFTER A CONTRACT HAS BEEN AWARDED, SUCH AS IN THIS CASE, PRESENTS NO BASIS FOR CANCELLATION THEREOF UNLESS IT CAN BE SHOWN THAT THE MISTAKE WAS MUTUAL OR WAS SO APPARENT AS TO CHARGE THE GOVERNMENT CONTRACTING OFFICER WITH NOTICE OF THE PROBABILITY OF THE MISTAKE AT THE TIME THE BID WAS ACCEPTED. SEE, 23 COMP. GEN. 596 AND THE CASES CITED THEREIN. IN THIS REGARD, THE DELIVERY PRICE REQUIREMENTS SET FORTH IN PARAGRAPH 3 OF THE SPECIAL PROVISIONS WERE COMPLETELY CLEAR. THEREFORE, ANY OMISSION IN COMPUTING YOUR BID WAS STRICTLY A UNILATERAL MISTAKE AND ONE TO WHICH THE GOVERNMENT DID NOT CONTRIBUTE TO IN ANY MANNER. MOREOVER, THREE OTHER BIDS WERE RECEIVED AT PRICES RANGING FROM $0.0222 TO $0.04 A POUND FOR THE MINIMUM CARLOAD LOTS, $0.03 TO $0.0532 A POUND FOR LESS THAN CARLOAD LOTS, AND $0.0222 TO $0.041 A POUND FOR THE MINIMUM TRUCKLOAD LOTS. SINCE YOUR BIDS WERE $0.0211, $0.0285 AND $0.0211 A POUND FOR THESE RESPECTIVE QUANTITIES WE MAY NOT CONCLUDE THAT SUCH A SLIGHT PRICE VARIATION--- ESPECIALLY IN COMPARISON WITH THE PRICES OF THE SECOND LOW BIDDER--- SHOULD HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF PROBABLE ERROR IN YOUR BID. ALSO SINCE THERE WAS NOTHING ON THE FACE OF YOUR BID TO WARRANT THE CONTRACTING OFFICER QUESTIONING ITS ACCURACY, IT MUST BE HELD THAT THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH. SUCH AN ACCEPTANCE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH CONTRACTS.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR RELIEVING YOU OF CONTINUED PERFORMANCE UNDER CONTRACT NO. GS-00S-32702.