B-152650, OCT. 28, 1963

B-152650: Oct 28, 1963

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO A LETTER DATED OCTOBER 8. IT IS REPORTED THAT CORRECTION OF THE ALLEGED ERROR WOULD NOT CHANGE THE STANDING OF THIS SUCCESSFUL BIDDER ON ANY OF THE ITEMS AWARDED TO IT. ALLEGES THAT THE PRICE BID WAS THE LOWEST IT HAD EVER OFFERED. IT IS ALSO REPORTED. THAT NOTHING IN THE PRICE BID OR THE DISCOUNTS OFFERED SHOULD HAVE PUT THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF A POSSIBLE ERROR. NOTHING ON THE FACE OF THE BID SUGGESTED THAT THE DISCOUNT OFFERED BY THE CONTRACTOR WAS UNUSUALLY HIGH. THE CONTRACTOR SAYS A DISCOUNT OF 2 PERCENT WAS INITIALLY CONSIDERED BY IT FOR THIS BIDDING. FROM THE FOREGOING WE MUST CONCLUDE THAT ANY ERROR MADE BY THE CONTRACTOR WAS A UNILATERAL ONE ON ITS PART AND THAT THE CONTRACTING OFFICER WAS NOT ON CONSTRUCTIVE NOTICE OF SUCH ERROR.

B-152650, OCT. 28, 1963

TO ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 8, 1963, FROM THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, FILE 074B, REQUESTING OUR DECISION AS TO WHETHER EVEREST AND JENNINGS, INC., MAY CORRECT ITS BID AFTER AWARD OF SUPPLY CONTRACT NO. V7018P-3454B TO REFLECT A 1 PERCENT-20 DAY DISCOUNT INSTEAD OF THE 2 PERCENT-20 DAY DISCOUNT ACTUALLY BID.

IT IS REPORTED THAT CORRECTION OF THE ALLEGED ERROR WOULD NOT CHANGE THE STANDING OF THIS SUCCESSFUL BIDDER ON ANY OF THE ITEMS AWARDED TO IT. THE CONTRACTOR HAS SUBMITTED EVIDENCE INDICATING THAT IT HAS NOT OFFERED A 2 PERCENT DISCOUNT IN THE PAST, AND ALLEGES THAT THE PRICE BID WAS THE LOWEST IT HAD EVER OFFERED. HOWEVER, IT IS ALSO REPORTED, AND THE ABSTRACT OF BIDS CONFIRMS, THAT NOTHING IN THE PRICE BID OR THE DISCOUNTS OFFERED SHOULD HAVE PUT THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF A POSSIBLE ERROR. THREE OF THE FOUR BIDS EVIDENCED CLOSE PRICING. THE BIDDERS OFFERED DISCOUNTS OF ONE-HALF OF 1 PERCENT-20 DAYS, 1 PERCENT-20 DAYS, 2 PERCENT-20 DAYS AND 2 PERCENT 20 DAYS. NOTHING ON THE FACE OF THE BID SUGGESTED THAT THE DISCOUNT OFFERED BY THE CONTRACTOR WAS UNUSUALLY HIGH. INDEED, THE CONTRACTOR SAYS A DISCOUNT OF 2 PERCENT WAS INITIALLY CONSIDERED BY IT FOR THIS BIDDING, AND THE ALLEGED ERROR AROSE BECAUSE IT FAILED TO CHANGE THE OFFERED DISCOUNT IN ACCORDANCE WITH ITS SUBSEQUENT INTENTIONS.

FROM THE FOREGOING WE MUST CONCLUDE THAT ANY ERROR MADE BY THE CONTRACTOR WAS A UNILATERAL ONE ON ITS PART AND THAT THE CONTRACTING OFFICER WAS NOT ON CONSTRUCTIVE NOTICE OF SUCH ERROR. IT FOLLOWS, THEREFORE, THAT THE ACCEPTANCE OF THE INVOLVED BID WAS MADE IN GOOD FAITH AND SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. SEE SALIGMAN ET AL V. UNITED STATES, 56 F.SUPP. 505, 507. ACCORDINGLY, THERE IS NO LEGAL BASIS TO AMEND THE CONTRACT IN ORDER TO REDUCE THE OFFERED DISCOUNT.