B-145423, APR. 25, 1961

B-145423: Apr 25, 1961

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BIDS WERE REQUESTED ON FIVE ITEMS OF SOLID VINYL TERRAZZO TILE IN VARIOUS COLORS. ONLY TWO BIDS WERE RECEIVED IN ADDITION TO YOURS. THE LOW BID OF $0.3904 PER SQUARE FOOT WAS REJECTED BECAUSE THE TILE BID ON DID NOT MEET THE SPECIFICATIONS AS TO COLOR. ALTHOUGH IT APPARENTLY WAS OF SATISFACTORY QUALITY OTHERWISE. THE OTHER BID WAS IN THE AMOUNT OF $0.50 PER SQUARE FOOT. SINCE YOUR BID OF $0.426 PER SQUARE FOOT WAS THE LOWEST RESPONSIVE BID RECEIVED. AWARD WAS MADE TO YOU BY THE ISSUANCE OF PURCHASE ORDER NO. 741 ON DECEMBER 8. ON THE SAME DATE YOU WERE ALSO ADVISED OF THE AWARD BY TELEPHONE AND WERE REQUESTED TO MAKE DELIVERY ON OR BEFORE DECEMBER 28. IT WAS ALLEGED THAT AN ERROR HAD BEEN MADE IN THE BID.

B-145423, APR. 25, 1961

TO COOK PAINT AND VARNISH COMPANY:

YOUR LETTER OF MARCH 7, 1961, REQUESTS REVIEW OF OUR SETTLEMENT DATED FEBRUARY 27, 1961, WHICH DISALLOWED YOUR CLAIM FOR $504.36, REPRESENTING THE AMOUNT ALLEGED TO BE DUE ON ACCOUNT OF A MISTAKE IN BID ON TILE FURNISHED THE VETERANS ADMINISTRATION HOSPITAL, FORT MEADE, SOUTH DAKOTA, UNDER CONTRACT DATED DECEMBER 8, 1960, PURCHASE ORDER NO. 741.

BIDS WERE REQUESTED ON FIVE ITEMS OF SOLID VINYL TERRAZZO TILE IN VARIOUS COLORS, TO BE ,KENTILE" OR EQUAL, FOR DELIVERY IN 20 DAYS AFTER RECEIPT OF PURCHASE ORDER. ONLY TWO BIDS WERE RECEIVED IN ADDITION TO YOURS, AND THE LOW BID OF $0.3904 PER SQUARE FOOT WAS REJECTED BECAUSE THE TILE BID ON DID NOT MEET THE SPECIFICATIONS AS TO COLOR, ALTHOUGH IT APPARENTLY WAS OF SATISFACTORY QUALITY OTHERWISE. THE OTHER BID WAS IN THE AMOUNT OF $0.50 PER SQUARE FOOT. SINCE YOUR BID OF $0.426 PER SQUARE FOOT WAS THE LOWEST RESPONSIVE BID RECEIVED, AWARD WAS MADE TO YOU BY THE ISSUANCE OF PURCHASE ORDER NO. 741 ON DECEMBER 8, 1960. ON THE SAME DATE YOU WERE ALSO ADVISED OF THE AWARD BY TELEPHONE AND WERE REQUESTED TO MAKE DELIVERY ON OR BEFORE DECEMBER 28, 1960. WHEN YOUR REPRESENTATIVE CALLED BACK LATER IN THE DAY TO CONFIRM THE DELIVERY DATE, IT WAS ALLEGED THAT AN ERROR HAD BEEN MADE IN THE BID, IN THAT YOU HAD QUOTED ON MARBELIZED TILE INSTEAD OF TERRAZZO TILE AND THAT THE PRICE DIFFERENTIAL WAS $0.089 PER SQUARE FOOT. THIS WAS CONFIRMED BY YOUR LETTER OF DECEMBER 13, 1960, WHEREIN YOU MADE CLAIM FOR AN ADDITIONAL $504.36, REPRESENTING $0.089 PER SQUARE FOOT ON THE TOTAL QUANTITY OF 5,667 SQUARE FEET.

THE QUESTION HERE IS NOT WHETHER A MISTAKE WAS MADE BUT WHETHER THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON NOTICE OF SAME PRIOR TO MAKING THE AWARD. THE PRICE PICTURE DEFINITELY DID NOT SUGGEST ERROR. THE LOW BID WAS REJECTED ONLY BECAUSE THE TILE FAILED TO MEET THE COLOR SPECIFICATIONS, AND THE SMALL DIFFERENCE BETWEEN YOUR BID AND THE OTHER RESPONSIVE BID WOULD NOT SUGGEST THE POSSIBILITY OF ERROR IN EITHER BID. FURTHERMORE, THE CONTRACTING OFFICER HAS STATED THAT AT THE TIME THE BIDS WERE CONSIDERED FOR ACCEPTANCE IT WAS NOT BELIEVED THAT THE AMOUNT OF YOUR BID WAS THE RESULT OF A MISTAKE ON YOUR PART.

SUCH MISTAKE AS MAY HAVE BEEN MADE HERE WAS DUE SOLELY TO YOUR FAILURE TO BID ON MATERIAL MEETING THE SPECIFICATIONS, AND SINCE THERE WAS NOTHING ON THE FACE OF THE BID FROM WHICH KNOWLEDGE ON THE PART OF THE CONTRACTING OFFICER THAT A MISTAKE HAD BEEN MADE MAY BE PRESUMED, IT SEEMS CLEAR THAT THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH AND FORMED A VALID CONTRACT, WHICH OBLIGATED YOU TO FURNISH THE TILE AT THE PRICE QUOTED.

WITH REFERENCE TO YOUR STATEMENT THAT YOU ORIGINALLY REFUSED THE ORDER BUT WERE PREVAILED UPON TO ACCEPT IT BECAUSE OF THE URGENT NEED FOR THE MATERIAL, IT SHOULD BE OBSERVED THAT IF YOU HAD PERSISTED IN REFUSING TO DELIVER THE TILE, NECESSITATING ITS PURCHASE ELSEWHERE, YOU WOULD HAVE BEEN CHARGEABLE WITH ANY EXCESS COST OCCASIONED THEREBY. IT WAS NOT THE INTENTION OF THE CONTRACTING OFFICER NOR IS IT THE INTENTION OF THIS OFFICE TO TAKE ADVANTAGE OF A BIDDER, BUT NO OFFICER OF THE GOVERNMENT MAY SURRENDER THE VESTED RIGHT OF THE GOVERNMENT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF A BINDING CONTRACT. SEE 20 COMP. GEN. 652.

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