B-145292, MAR. 29, 1961

B-145292: Mar 29, 1961

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UNITED STATES ATOMIC ENERGY COMMISSION: REFERENCE IS MADE TO A LETTER DATED MARCH 8. SEVEN BIDS WERE RECEIVED. THE CONTRACT WAS AWARDED TO GORDON ENTERPRISES. A COPY OF THE DEALER'S PRICELIST WAS FORWARDED. WHICH VERIFIES THAT THE AMOUNT BID WAS THE BIDDER'S NET COST. THE CONTRACTOR WAS ADVISED BY LETTER OF DECEMBER 1. THE MISTAKE MUST BE MUTUAL OR THE PROBABILITY OF ERROR MUST BE SO APPARENT THAT IT IS PRESUMED THE ACCEPTING OFFICER WAS AWARE OF IT AND SOUGHT TO TAKE ADVANTAGE THEREOF. THE RANGE OF BIDS HERE WAS QUITE NARROW AND IN VIEW OF THE SMALL DIFFERENCE BETWEEN THE LOW AND NEXT LOW BIDS. THERE IS NO BASIS FOR CONCLUDING THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF A PROBABLE ERROR.

B-145292, MAR. 29, 1961

TO CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION:

REFERENCE IS MADE TO A LETTER DATED MARCH 8, 1961, WITH ENCLOSURES, FROM MR. DWIGHT INK, ASSISTANT GENERAL MANAGER, REQUESTING A DECISION RELATIVE TO AN ERROR IN BID ALLEGED BY GORDON ENTERPRISES, NORTH HOLLYWOOD, CALIFORNIA, IN CONNECTION WITH CONTRACT NO. OR61-0832, DATED NOVEMBER 23, 1960.

ON NOVEMBER 8, 1960, YOUR OAK RIDGE OFFICE ISSUED INVITATION NO. 401 61- 17C REQUESTING BIDS FOR FURNISHING ONE 16MM MOTION PICTURE CAMERA, WITH ACCESSORIES. SEVEN BIDS WERE RECEIVED, THE LOW BID OF $2,739.20 BEING SUBMITTED BY GORDON ENTERPRISES, WITH THE OTHER BIDS RANGING FROM $2,895.00 TO $3,342.80, AND ON NOVEMBER 23, 1960, THE CONTRACT WAS AWARDED TO GORDON ENTERPRISES.

BY LETTER DATED NOVEMBER 28, 1960, THE CONTRACTOR REQUESTED THAT IT BE PERMITTED TO EITHER WITHDRAW OR REVISE ITS QUOTATION, ALLEGING THAT IT HAD INADVERTENTLY QUOTED A PRICE WHICH REPRESENTED ITS NET COST FROM THE DISTRIBUTOR AND THAT NOTHING HAD BEEN INCLUDED TO COVER SUCH ITEMS AS TRANSPORTATION, INSURANCE, PACKAGING, OVERHEAD AND PROFIT. A COPY OF THE DEALER'S PRICELIST WAS FORWARDED, WHICH VERIFIES THAT THE AMOUNT BID WAS THE BIDDER'S NET COST, F.O.B. NEW YORK. THE CONTRACTOR WAS ADVISED BY LETTER OF DECEMBER 1, 1960, THAT SINCE AWARD HAD BEEN MADE WITHOUT NOTICE OF ANY ERROR, THE CONTRACTING OFFICER COULD NOT GRANT RELIEF, BUT THAT CLAIM COULD BE FILED FOR AN ADJUSTMENT OF PRICE. CONTRACTOR THEREUPON CLAIMED $2,985.73, REPRESENTING ITS ORIGINAL BID PRICE, PLUS 9 PERCENT.

IN ORDER TO JUSTIFY RELIEF BY REASON OF A MISTAKE IN AN ACCEPTED BID, THE MISTAKE MUST BE MUTUAL OR THE PROBABILITY OF ERROR MUST BE SO APPARENT THAT IT IS PRESUMED THE ACCEPTING OFFICER WAS AWARE OF IT AND SOUGHT TO TAKE ADVANTAGE THEREOF. THE RANGE OF BIDS HERE WAS QUITE NARROW AND IN VIEW OF THE SMALL DIFFERENCE BETWEEN THE LOW AND NEXT LOW BIDS, AND THE UNIFORM PATTERN OF THE GRADATION OF ALL BIDS, THERE IS NO BASIS FOR CONCLUDING THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF A PROBABLE ERROR. NOR WAS THERE ANYTHING ON THE FACE OF THE LOW BID TO INDICATE THAT IT WAS NOT AS INTENDED.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS UPON THE BIDDER AND THE GOVERNMENT DID NOT CONTRIBUTE IN ANY WAY TO THE ERROR. SINCE SUCH MISTAKE AS MAY HAVE BEEN MADE WAS UNILATERAL, BEING DUE SOLELY TO THE BIDDER'S OVERSIGHT IN FAILING TO INCLUDE CERTAIN ITEMS IN THE BID PRICE, AND SINCE THERE IS NOTHING TO INDICATE THAT THE CONTRACTING OFFICER KNEW OR SHOULD HAVE KNOWN THAT A MISTAKE HAD BEEN MADE, IT SEEMS CLEAR THAT THE BID WAS ACCEPTED IN GOOD FAITH, WITHOUT NOTICE OF THE ALLEGED MISTAKE, EITHER ACTUAL OR CONSTRUCTIVE, AND THAT A VALID AND BINDING CONTRACT RESULTED WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE 39 COMP. GEN. 36.

ACCORDINGLY, WE CAN FIND NO LEGAL BASIS FOR THE PAYMENT OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE.