B-153787, AUG. 5, 1964

B-153787: Aug 5, 1964

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TO ROCKE INTERNATIONAL CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11. YOUR FIRM WAS AWARDED A CONTRACT TO FURNISH AND DELIVER A LARGE NUMBER OF MISCELLANEOUS AUDIO COMPONENTS FOR USE IN SAIGON. THIS SUM WAS DISALLOWED ON THE BASIS THAT IT EXCEEDED THE AMOUNT AUTHORIZED. CLEARLY POINTS OUT THAT THE MISTAKE IN QUESTION WAS NOT BROUGHT TO LIGHT UNTIL PAYMENT WAS ACTUALLY RECEIVED. THE QUESTION FOR CONSIDERATION BY OUR OFFICE IS NOT WHETHER AN ERROR. THE COURTS AS WELL AS OUR OFFICE HAVE GENERALLY TAKEN THE VIEW THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF HIS BID AND THIS BID HAS BEEN ACCEPTED. THE BIDDER HIMSELF MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR ITSELF SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE UNDUE ADVANTAGE.

B-153787, AUG. 5, 1964

TO ROCKE INTERNATIONAL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 11, 1964, REQUESTING REVIEW OF THE SETTLEMENT DATED FEBRUARY 28, 1964, WHEREIN OUR CLAIMS DIVISION DENIED YOUR REQUEST FOR ADDITIONAL FREIGHT AND PACKING CHARGES UNDER PURCHASE ORDER NO. VN-P-1723.

THE RECORD SHOWS THAT PURSUANT TO INVITATION NO. 739, DATED APRIL 7, 1961, ISSUED BY THE UNITED STATES OPERATIONS MISSION TO VIET-NAM, YOUR FIRM WAS AWARDED A CONTRACT TO FURNISH AND DELIVER A LARGE NUMBER OF MISCELLANEOUS AUDIO COMPONENTS FOR USE IN SAIGON, VIET-NAM. UPON RECEIPT OF APPROPRIATE SHIPPING DOCUMENTS, THE DISBURSING OFFICER IN VIET-NAM AUTHORIZED PAYMENT FOR THE GOODS SHIPPED, LESS $3,468.67. THIS SUM WAS DISALLOWED ON THE BASIS THAT IT EXCEEDED THE AMOUNT AUTHORIZED. YOU CONTEND THAT YOUR CLERK-TYPIST ACCIDENTALLY ERRED IN TRANSFERRING VARIOUS ESTIMATED CHARGES FROM THE WORK SHEETS TO THE FINAL BID SUBMITTED, AND THEREFORE, SUCH ERROR MUST BE CONSIDERED "HUMAN" IN NATURE AND SHOULD WARRANT ADJUSTMENT.

AS PREVIOUSLY INDICATED, YOUR FIRM FAILED TO ALLEGE ANY ERROR WHATSOEVER UNTIL SOMETIME AFTER AWARD. AS A MATTER OF FACT, YOUR LETTER OF MARCH 11, CLEARLY POINTS OUT THAT THE MISTAKE IN QUESTION WAS NOT BROUGHT TO LIGHT UNTIL PAYMENT WAS ACTUALLY RECEIVED. ACCORDINGLY, THE QUESTION FOR CONSIDERATION BY OUR OFFICE IS NOT WHETHER AN ERROR, IN FACT, HAD OCCURRED, BUT WHETHER A VALID AND BINDING CONTRACT HAD BEEN CONSUMMATED. SEE 39 COMP. GEN. 36.

THE COURTS AS WELL AS OUR OFFICE HAVE GENERALLY TAKEN THE VIEW THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF HIS BID AND THIS BID HAS BEEN ACCEPTED, THE BIDDER HIMSELF MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR ITSELF SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE UNDUE ADVANTAGE. SEE 20 COMP. GEN. 652, AND CASES CITED THEREIN. THE CASE OF GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61, THE SUPREME COURT STATED:

"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE, WHEN 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.'"

IN THE PRESENT CASE, YOU EXPRESSLY NEGATE ANY SUCH CLAIM THAT THE CONTRACTING OFFICER KNEW OF THE ALLEGED MISTAKE. WE ARE THEREFORE OF THE VIEW THAT ANY ERROR WHICH MAY HAVE OCCURRED MUST BE CONSIDERED UNILATERAL AND AS SUCH WILL PRECLUDE THIS OFFICE FROM MAKING ANY ADJUSTMENT. SEE OUR DECISIONS B-138912, DATED MARCH 18, 1959, AND B 147726 DATED DECEMBER 14, 1961, COPIES OF WHICH ARE ENCLOSED.

ACCORDINGLY, OUR SETTLEMENT DATED FEBRUARY 28, 1964, IS HEREBY SUSTAINED.