B-148079, JUL. 12, 1962

B-148079, JUL. 12, 1962

TO ANCHOR METAL COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 22, 1962, WITH ENCLOSURES, REQUESTING AN INCREASE IN THE PRICE OF CONTRACT NO. AF 30 (635/-26037, IN VIEW OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH THE CONTRACT WAS AWARDED.

IN RESPONSE TO INVITATION NO. 30-635-62-92, ISSUED ON SEPTEMBER 8, 1961, BY THE DEPARTMENT OF THE AIR FORCE, ROME AIR MATERIEL AREA, DIRECTORATE OF PROCUREMENT AND PRODUCTION, YOU SUBMITTED A BID DATED SEPTEMBER 22, 1961, OFFERING TO FURNISH, AMONG OTHERS, ITEM NO. 5, COVERING IN PART 7,515 SPOOLS OF SOLDER AT $0.795 EACH, F.O.B. GRIFFISS AIR FORCE BASE, ROME, NEW YORK, OR FOR A TOTAL PRICE OF $5,974.43. SIX OTHER BIDS WERE RECEIVED FOR ITEM NO. 5 RANGING FROM $0.88 A SPOOL TO $1.14 A SPOOL. YOUR BID ON ITEM NO. 5, BEING THE LOWEST BID RECEIVED, THEREBY CONSUMMATING CONTRACT NO. AF 30 (635/-26037. BY LETTER DATED JANUARY 22, 1962, YOU ADVISED OUR OFFICE THAT AN ERROR HAD BEEN MADE IN THAT PART OF YOUR BID FOR ITEM NO. 5 COVERING THE 7,515 SPOOLS OF SOLDER FOR GRIFFISS AIR FORCE BASE IN THAT THE UNIT PRICE OF $0.795 SHOULD HAVE BEEN $0.8795. YOUR LETTER DATED FEBRUARY 9, 1962, WAS SUBMITTED TO SHOW HOW THE ERROR OCCURRED AND YOU REQUEST AN APPROPRIATE INCREASE IN THE CONTRACT PRICE IN VIEW OF THE ERROR.

THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER AN ERROR WAS, IN FACT, MADE IN YOUR BID ON ITEM NO. 5 BUT RATHER WHETHER THERE EXISTED ANY CIRCUMSTANCES THAT ESTABLISHED NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, TO THE GOVERNMENT CONTRACTING OFFICER AS TO THE PROBABILITY OF AN ERROR PRIOR TO AWARD. IN THIS REGARD, THE RECORD BEFORE US IS COMPLETELY DEVOID OF ANY CIRCUMSTANCES THAT WOULD CONSTITUTE ACTUAL NOTICE OF THE ERROR PRIOR TO THE ACCEPTANCE OF YOUR BID. INSOFAR AS CONCERNS THE CONSTRUCTIVE NOTICE FEATURE OF THE CASE, THE USUAL BID COMPARISON BASIS FOR DETECTING THE PROBABILITY OF ERROR IN BIDS FORMS NO BASIS FOR CHARGING THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE SINCE THAT PART OF YOUR BID FOR ITEM NO. 5 OF $0.795 A SPOOL FOR THE SOLDER MAY NOT BE HELD TO BE OUT OF LINE WITH THE SIX OTHER BIDS RECEIVED THEREFOR WHICH RANGED FROM $0.88 TO $1.14 A SPOOL. NEITHER MAY WE CONCLUDE THAT A COMPARISON OF YOUR UNIT PRICE BID OF $0.929, F.O.B. GRIFFISS AIR FORCE BASE, FOR THE 4,200 SPOOLS OF SOLDER UNDER ITEM NO. 2 WITH YOUR BID OF $0.795 FOR ITEM NO. 5 IS INDICATIVE OF THE PROBABILITY OF ERROR IN ITEM NO. 5, SINCE A MUCH LESSER QUANTITY OF SOLDER WAS BEING FURNISHED UNDER ITEM NO. 2 AND ALSO SINCE THERE WAS A DIFFERENCE IN THE SIZE OF THE WIRE COVERED BY THE TWO ITEMS AS ADMITTED BY YOU. IN VIEW OF THE FOREGOING, AND SINCE THERE APPEARS TO HAVE BEEN NO OTHER INDICATION OF ERROR ON THE FACE OF YOUR BID OR IN THE ATTENDANT CIRCUMSTANCES THERETO, IT MUST BE HELD THAT THE BID WAS ACCEPTED IN GOOD FAITH AND THAT SUCH AN ACCEPTANCE CONSUMMATED A VALID CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES, AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH CONTRACTS.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR AUTHORIZING ANY INCREASE IN THE PRICE OF CONTRACT NO. AF 30 (635/-26037.