B-145269, MAR. 22, 1961

B-145269: Mar 22, 1961

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ALABAMA: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 7. FOUR BIDS WERE RECEIVED INCLUDING THE BID SUBMITTED BY JACK YAUGER AND COMPANY. ALL OF THE CLASS B DOORS (ITEMS 1 THROUGH 6) WERE REQUIRED TO HAVE GLASS OPENINGS. ON ITS BID YAUGER HAD ADDED ON PAGE 7 OF THE INVITATION A STATEMENT TO THE EFFECT THAT GLASS AND GLAZING WERE NOT INCLUDED. THAT YAUGER'S BID WAS INDEFINITE AS TO ITEMS 1 TO 6. IT WAS ACCEPTED ON FEBRUARY 7. IN YOUR REQUEST FOR A DECISION YOU STATE THAT IT WAS NOT SUSPECTED THAT AN ERROR HAD BEEN MADE BY YAUGER EVEN THOUGH THE CLASS B DOOR WAS BID AT THE SAME PRICE AS THE CLASS A DOOR AS ANOTHER BIDDER. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER.

B-145269, MAR. 22, 1961

TO CONTRACTING OFFICER, VETERANS ADMINISTRATION HOSPITAL, TUSCALOOSA, ALABAMA:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 7, 1961, FILE 5121-134, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN ON THE REQUEST OF JACK YAUGER AND COMPANY, INC., TO BE RELEASED FROM ITS OBLIGATION TO FURNISH ITEM 7 OF INVITATION FOR BIDS NO. 61-28 ISSUED JANUARY 17, 1961.

BY INVITATION NO. 61-28 THE SUPPLY OFFICER OF YOUR HOSPITAL SOLICITED BIDS FOR FURNISHING SEVEN ITEMS OF DOORS AS DESCRIBED IN THE INVITATION. THE GOVERNMENT RESERVED THE RIGHT TO AWARD BY ITEMS. FOUR BIDS WERE RECEIVED INCLUDING THE BID SUBMITTED BY JACK YAUGER AND COMPANY, INC., WHO HAD BID A UNIT PRICE OF $124.83 ON EACH OF THE SEVEN ITEMS. ALL OF THE CLASS B DOORS (ITEMS 1 THROUGH 6) WERE REQUIRED TO HAVE GLASS OPENINGS. ON ITS BID YAUGER HAD ADDED ON PAGE 7 OF THE INVITATION A STATEMENT TO THE EFFECT THAT GLASS AND GLAZING WERE NOT INCLUDED. THIS MEANT, OF COURSE, THAT YAUGER'S BID WAS INDEFINITE AS TO ITEMS 1 TO 6. ITS BID, HOWEVER, ON ITEM 7 COMPLIED WITH THE SPECIFICATIONS AND BEING THE LOWEST RECEIVED ON THAT ITEM, IT WAS ACCEPTED ON FEBRUARY 7, 1961. ON FEBRUARY 9 YAUGER QUESTIONED THE AWARD OF ONE ITEM ONLY AND BY LETTER OF FEBRUARY 28 IT ADVISED THE CONTRACTING OFFICE THAT IT WOULD BE UNABLE TO SUPPLY THE ONE DOOR CALLED FOR UNDER ITEM 1 SINCE ITS SUPPLIER HAD QUOTED "ALL OR NONE" AND THAT THE PRICE OF ITEM 7 ONLY WOULD BE $247.

IN YOUR REQUEST FOR A DECISION YOU STATE THAT IT WAS NOT SUSPECTED THAT AN ERROR HAD BEEN MADE BY YAUGER EVEN THOUGH THE CLASS B DOOR WAS BID AT THE SAME PRICE AS THE CLASS A DOOR AS ANOTHER BIDDER, BUILDING SPECIALTIES COMPANY, INC., HAD ALSO BID BOTH CLASS A AND CLASS B DOORS AT APPROXIMATELY THE SAME PRICE.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. THE INVITATION WAS CLEAR AND UNAMBIGUOUS. CONSEQUENTLY, IF YAUGER INTENDED ITS BID TO BE ON AN ,ALL OR NONE" BASIS IT SHOULD HAVE SO STATED. ITS ERROR IN FAILING TO DO SO WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT.

WHILE IT MAY BE THAT YAUGER MADE AN ERROR IN ITS BID THE BASIC QUESTION FOR CONSIDERATION IS NOT WHETHER IT MADE A MISTAKE IN ITS BID BUT WHETHER THE ACCEPTANCE OF THE BID BY THE GOVERNMENT CONSUMMATED A VALID AND BINDING CONTRACT. ACCEPTANCE OF A BID CONSUMMATES A VALID AND BINDING CONTRACT UNLESS THE OFFICER ACCEPTING THE BID WAS ON NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH CIRCUMSTANCES AS WOULD MAKE HIS ACCEPTANCE AN ACT OF BAD FAITH. MOFFETT, HODGKINS AND CLARK COMPANY V. ROCHESTER, 178 U.S. 373. YOU HAD NO ACTUAL NOTICE OF ANY MISTAKE BY THE BIDDER PRIOR TO AWARD AND YOU HAVE STATED THAT IT WAS NOT SUSPECTED THAT THE BIDDER HAD MADE AN ERROR.

IN THESE CIRCUMSTANCES THERE IS NO LEGAL BASIS FOR RELIEVING JACK YAUGER AND COMPANY, INC., FROM ITS LIABILITY UNDER ITS ACCEPTED BID.