B-145824, MAY 29, 1961

B-145824: May 29, 1961

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H. BAXTER AND CO.: REFERENCE IS MADE TO YOUR LETTER (A1-191-PE-810) DATED MAY 2. WHICH WAS DISALLOWED BY OUR CERTIFICATE OF SETTLEMENT DATED APRIL 27. THE CLAIM IS BASED ON YOUR ALLEGATION AFTER AWARD OF THE CONTRACT THAT AN AMOUNT OF $440 REPRESENTING TOTAL FREIGHT COSTS WAS OMITTED. AS STIPULATED IN THE BID INVITATION ON WHICH THE CONTRACT WAS BASED. YOU NOW CONTEND THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE ERROR. THE CONTRACTING OFFICER HAS STATED WITH REFERENCE TO THE INSTANT TRANSACTION THAT THE AWARD WAS MADE TO YOU ON THE BASIS OF LOWEST BID PRICE. THAT SINCE YOU HAD BEEN THE SUCCESSFUL BIDDER IN THE PAST ON SIMILAR BIDS THERE WAS NO REASON TO QUESTION YOUR BID AS BEING TOO LOW.

B-145824, MAY 29, 1961

TO J. H. BAXTER AND CO.:

REFERENCE IS MADE TO YOUR LETTER (A1-191-PE-810) DATED MAY 2, 1961, REQUESTING RECONSIDERATION OF YOUR CLAIM UNDER CONTRACT NO. 12-11-206 28863 DATED SEPTEMBER 7, 1960, WHICH WAS DISALLOWED BY OUR CERTIFICATE OF SETTLEMENT DATED APRIL 27, 1961, FOR THE REASONS STATED THEREIN.

THE CLAIM IS BASED ON YOUR ALLEGATION AFTER AWARD OF THE CONTRACT THAT AN AMOUNT OF $440 REPRESENTING TOTAL FREIGHT COSTS WAS OMITTED, THROUGH ERROR, FROM YOUR BID QUOTATION FOR FURNISHING 13.552 MBM OF BRIDGE TIMBERS, DELIVERED, UNLOADED AND STOCKPILED AT THE BRIDGE SITE, AS STIPULATED IN THE BID INVITATION ON WHICH THE CONTRACT WAS BASED. YOU NOW CONTEND THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE ERROR, AS ALLEGED, BECAUSE OF THE VARIANCE BETWEEN YOUR LOW BID AND THE NEXT LOW BID, AND REQUEST PAYMENT IN THE AMOUNT OF $432.43, THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOW BID.

THE CONTRACTING OFFICER HAS STATED WITH REFERENCE TO THE INSTANT TRANSACTION THAT THE AWARD WAS MADE TO YOU ON THE BASIS OF LOWEST BID PRICE, AND THAT SINCE YOU HAD BEEN THE SUCCESSFUL BIDDER IN THE PAST ON SIMILAR BIDS THERE WAS NO REASON TO QUESTION YOUR BID AS BEING TOO LOW.

THE ESTABLISHED RULE IS THAT, WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED AND AWARD OF A CONTRACT MADE, THE BIDDER MUST BEAR THE CONSEQUENCE THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER AT THE TIME OF ACCEPTANCE OF THE BID WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF SUCH ERROR.

YOU ADMIT, AND THE RECORD SUBSTANTIATES THE FACT, THAT ANY ERROR WHICH MAY HAVE BEEN MADE IN YOUR BID WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY CONTRIBUTED TO BY THE GOVERNMENT. IN THIS CONNECTION, SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61, WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID:

"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE. THE PARTY COMPLAINING MUST HAVE EXERCISED AT LEAST THE DEGREE OF DILIGENCE "WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON.'"

THEREFORE, SUCH ERROR AS YOU MAY HAVE MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND WOULD NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259.

MOREOVER, YOU DID NOT ALLEGE ERROR IN YOUR BID UNTIL AFTER AWARD OF THE CONTRACT, AND THERE IS NOTHING ON YOUR BID TO SUGGEST THAT AN ERROR MAY HAVE BEEN MADE THEREIN. NEITHER DID THERE EXIST SUCH A DIFFERENCE IN BID PRICES RECEIVED UNDER THE INVITATION AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF PROBABILITY OF ERROR IN YOUR BID; NOR IS THERE ANYTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER OTHERWISE HAD ANY INFORMATION WARRANTING THE PRESUMPTION OF AN ERROR IN THE BID.

THE PRESENT RECORD FULLY ESTABLISHES THAT THE ACCEPTANCE OF YOUR BID--- WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR THEREIN--- WAS IN GOOD FAITH, AND IN SUCH CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

UPON ACCEPTANCE OF YOUR BID, THE RIGHT VESTED IN THE GOVERNMENT TO RECEIVE PERFORMANCE STRICTLY IN ACCORDANCE WITH ITS TERMS AND, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER THAT RIGHT WITHOUT ADEQUATE CONSIDERATION. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 CT.CL. 327, 335.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR GRANTING ANY RELIEF UNDER CONTRACT NO. 12-11-206-28863, AND OUR SETTLEMENT DATED APRIL 27, 1961, IS SUSTAINED.