B-147726, DEC. 14, 1961

B-147726: Dec 14, 1961

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED DECEMBER 1. BIDS WERE SOLICITED FROM 19 PROSPECTIVE SUPPLIERS. WAS THE LOWEST BIDDER AT $5. THE NEXT LOW BIDDER WAS J. WHOSE BID WAS $6. AWARD WAS MADE ON AUGUST 25. THE CONTRACTOR ALLEGED THAT A MISTAKE WAS MADE BY OMITTING OCEAN FREIGHT OF $52 PER MBF. THE CONTRACTOR STATED THAT THE ERROR WAS MADE DUE TO THE FACT THAT IT WAS SHORTHANDED AT THE TIME OF BIDDING AND THE BID WAS MADE IN A RUSH. ERROR WAS NOT APPARENT ON THE FACE OF THE BID AND THE DIFFERENCE BETWEEN THE CONTRACTOR'S AND THE OTHER BIDS WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH.

B-147726, DEC. 14, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 1, 1961, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (INSTALLATIONS AND LOGISTICS) REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY WILLIAM G. MOORE AND SON, INC., UNDER CONTRACT NO. DA-23-065- CIVENG-62-12.

THE U.S. ARMY ENGINEER DISTRICT, ST. LOUIS, MISSOURI, REQUESTED BIDS FOR THE FURNISHING OF 10 ITEMS OF GREENHEART TIMBER (A FOREIGN SPECIES) TO VARIOUS LOCKS AND DAMS WITHIN THE ST. LOUIS U.S. ARMY ENGINEER DISTRICT. BIDS WERE SOLICITED FROM 19 PROSPECTIVE SUPPLIERS. WILLIAM G. MOORE AND SON, INC. WAS THE LOWEST BIDDER AT $5,947.77. THE NEXT LOW BIDDER WAS J. H. MONTEATH CO., WHOSE BID WAS $6,150.26. AWARD WAS MADE ON AUGUST 25, 1961, TO WILLIAM G. MOORE AND SON, INC.

IN LETTER OF AUGUST 28, 1961, THE CONTRACTOR ALLEGED THAT A MISTAKE WAS MADE BY OMITTING OCEAN FREIGHT OF $52 PER MBF. THE CONTRACTOR STATED THAT THE ERROR WAS MADE DUE TO THE FACT THAT IT WAS SHORTHANDED AT THE TIME OF BIDDING AND THE BID WAS MADE IN A RUSH. THE CONTRACTOR REQUESTED WITHDRAWAL OR MODIFICATION OF ITS BID TO INCLUDE THE OCEAN FREIGHT OF $52 PER MBF.

THE REQUEST OF THE CONTRACTOR WOULD AMOUNT TO AN INCREASE OF $1,214.47. SUCH AN INCREASE WOULD EXCEED THE SECOND LOW BID BY $1,011.98 AND WOULD AMOUNT TO A CONTRACT PRICE EXCEEDING THE BIDS OF FIVE OTHER BIDDERS.

THE CONTRACTING OFFICER STATES THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID AT THE TIME OF AWARD. ERROR WAS NOT APPARENT ON THE FACE OF THE BID AND THE DIFFERENCE BETWEEN THE CONTRACTOR'S AND THE OTHER BIDS WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH--- NO ERROR HAVING PREVIOUSLY BEEN ALLEGED--- AND THIS CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 CT.CL. 120, 163. THE COMPANY PLACED ITS BID ON THE LUMBER AND ANY ERROR THEREIN WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL. 93 U.S. 55, 61.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR RELIEVING WILLIAM G. MOORE AND SON, INC. OF ITS BID.