B-150374, JAN. 30, 1963

B-150374: Jan 30, 1963

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THE RECORD ESTABLISHES THAT TWO QUOTATIONS WERE RECEIVED BY THE PROCURING ACTIVITY AT VETERANS ADMINISTRATION HOSPITAL. YOU WERE AWARDED THE CONTRACT AND THE COT WAS DELIVERED ON AUGUST 31. THE QUESTION HERE INVOLVED IS NOT WHETHER YOU MADE A BONA FIDE MISTAKE IN THE PREPARATION OF YOUR QUOTATION. A LEGAL AND BINDING CONTRACT WAS FORMED BY THE ACCEPTANCE OF THE BID. IN VIEW OF THE FACT THAT THE MISTAKE ADMITTEDLY WAS NOT MUTUAL. THERE WAS NO ERROR APPARENT ON THE FACE OF YOUR QUOTATION. WHILE THERE IS SOME DISPARITY BETWEEN YOUR LOW PRICE AND THE ONLY OTHER QUOTATION. ORDINARILY WHERE ONLY TWO PRICES ARE RECEIVED THE USUAL PRICE COMPARISON IS OF LITTLE VALUE IN DETERMINING WHETHER AN ERROR HAD BEEN MADE IN ONE OF THE BIDS. 20 COMP.

B-150374, JAN. 30, 1963

TO NEW JERSEY SAFETY EQUIPMENT COMPANY:

IN YOUR LETTER OF NOVEMBER 26, 1962, YOU OBJECT TO THE ACTION OF THE CONTRACTING OFFICER IN DISALLOWING YOUR CLAIM FOR REFUND OF $35 UNDERPURCHASE ORDER CONTRACT NO. 418, DATED AUGUST 17, 1962.

THE RECORD ESTABLISHES THAT TWO QUOTATIONS WERE RECEIVED BY THE PROCURING ACTIVITY AT VETERANS ADMINISTRATION HOSPITAL, LEBANON, PENNSYLVANIA, PURSUANT TO ITS REQUEST FOR PRICES ON A HYDRO-LEVEL COT WITH FOOT DROP. THE ONLY OTHER BIDDER OFFERED A PRICE OF $234.50, WITH A 1 PERCENT DISCOUNT, WHILE YOU OFFERED A PRICE OF $199.50, WITH A 2 PERCENT DISCOUNT, FOR THE IDENTICAL PRODUCT. YOU WERE AWARDED THE CONTRACT AND THE COT WAS DELIVERED ON AUGUST 31, 1962. THEREAFTER, YOU ALLEGED THAT YOU HAD INTENDED TO QUOTE A PRICE OF $234.50 BUT HAD INADVERTENTLY CONSULTED OBSOLETE LITERATURE AT THE TIME YOU SUBMITTED YOUR QUOTATION.

SINCE THE CONTRACT HAD ALREADY BEEN AWARDED TO YOUR COMPANY BEFORE ANY ALLEGATION OF ERROR, THE QUESTION HERE INVOLVED IS NOT WHETHER YOU MADE A BONA FIDE MISTAKE IN THE PREPARATION OF YOUR QUOTATION, BUT WHETHER, NEVERTHELESS, A LEGAL AND BINDING CONTRACT WAS FORMED BY THE ACCEPTANCE OF THE BID. IN VIEW OF THE FACT THAT THE MISTAKE ADMITTEDLY WAS NOT MUTUAL, AND NOT ALLEGED UNTIL AFTER PERFORMANCE, THERE WOULD APPEAR TO BE NO LEGAL BASIS FOR APPROVING THE REQUESTED REFUND UNLESS THE EVIDENCE INDICATES THAT THE CONTRACTING OFFICER HAD CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF YOUR ALLEGED ERROR.

THERE WAS NO ERROR APPARENT ON THE FACE OF YOUR QUOTATION. WHILE THERE IS SOME DISPARITY BETWEEN YOUR LOW PRICE AND THE ONLY OTHER QUOTATION, ORDINARILY WHERE ONLY TWO PRICES ARE RECEIVED THE USUAL PRICE COMPARISON IS OF LITTLE VALUE IN DETERMINING WHETHER AN ERROR HAD BEEN MADE IN ONE OF THE BIDS. 20 COMP. GEN. 286. IN THE INSTANT CASE YOUR OFFERED PRICE WAS APPROXIMATELY ONLY 15 PERCENT LOWER THAN THE ONE SUBMITTED BY THE OTHER BIDDER. UNDER THESE CIRCUMSTANCES WE DO NOT BELIEVE THAT THE DISPARITY IN THE INSTANT BID ITEM PRICES WAS SUFFICIENT TO HAVE PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR.

ACCORDINGLY, YOUR REQUEST FOR REFUND IN THE AMOUNT OF $35 MUST BE DENIED.