B-154262, JUN. 24, 1964

B-154262: Jun 24, 1964

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EDUCATION AND WELFARE: REFERENCE IS MADE TO A LETTER DATED MAY 22. REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY EMERSON-SACK-WARNER CORPORATION TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. PH 43-62-778 IS BASED. THE FOLLOWING FIVE BIDS WERE RECEIVED ON THE ITEMS IN QUESTION: TABLE ITEM 2 ITEM 3 ITEM 4 TOTAL AMOUNT LENDERKING METAL PRODUCTS INC. $755.00 $7.80 15.50 $9. ITEM 1 AND 2 THROUGH 4 WERE AWARDED TO EMERSON SACK- WARNER CORPORATION. THE CORPORATION STATED THAT AN ERROR IS APPARENT ON THE FACE OF ITS BID BECAUSE ITS PRICE FOR ITEM 2. IS LESS THAN THE PRICE QUOTED BY IT FOR ITEM 1. LABOR AND OVERHEAD AND THE TOTAL OF SUCH PRICES IS SHOWN AS $11.

B-154262, JUN. 24, 1964

TO THE SECRETARY OF HEALTH, EDUCATION AND WELFARE:

REFERENCE IS MADE TO A LETTER DATED MAY 22, 1964, WITH ENCLOSURES, FROM THE CHIEF, PROCUREMENT AND SUPPLY MANAGEMENT BRANCH, OS-GS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY EMERSON-SACK-WARNER CORPORATION TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. PH 43-62-778 IS BASED.

THE NATIONAL INSTITUTES OF HEALTH, PUBLIC HEALTH SERVICE, BETHESDA, MARYLAND, BY INVITATION NO. 328-4-17-62 DATED APRIL 2, 1962, REQUESTED BIDS FOR FURNISHING 14 ITEMS OF ANIMAL CARE EQUIPMENT. THE INVITATION PROVIDED FOR AN AGGREGATE AWARD ON ITEM 2, 3 AND 4, THE ONLY ITEMS INVOLVED IN THE ALLEGED MISTAKE. THE FOLLOWING FIVE BIDS WERE RECEIVED ON THE ITEMS IN QUESTION:

TABLE

ITEM 2 ITEM 3 ITEM 4 TOTAL AMOUNT

LENDERKING METAL PRODUCTS INC. $755.00 $7.80 15.50 $9,619.20

THE EMERSON-SACK-WARNER CORP. 522.00 13.75 13.75 6,924.00

F. H. KLAUNBERG AND SON 840.00 10.00 18.00 10,752.00 CAMERON COMPANY

765.25 5.00 10.00 9,543.00

E. W. SCHULTZ AND SONS, INC. 715.00 18.00 11.00 9,276.00

ON APRIL 23, 1962, ITEM 1 AND 2 THROUGH 4 WERE AWARDED TO EMERSON SACK- WARNER CORPORATION.

BY LETTER DATED MAY 22, 1962, EMERSON-SACK-WARNER CORPORATION ALLEGED THAT IT HAD MADE A MISTAKE IN QUOTING ON ITEM 2 OF ITS BID IN THAT IT HAD INTENDED TO QUOTE A PRICE OF $822 INSTEAD OF $522 FOR THAT ITEM. THE CORPORATION REQUESTED THAT THE CONTRACT PRICE OF ITEM 2 BE ADJUSTED SO AS TO REFLECT THE CORRECT PRICE FOR THAT ITEM. THE CORPORATION STATED THAT AN ERROR IS APPARENT ON THE FACE OF ITS BID BECAUSE ITS PRICE FOR ITEM 2, A DOUBLE-TIER MONKEY CAGE, IS LESS THAN THE PRICE QUOTED BY IT FOR ITEM 1, A SINGLE-TIER CHIMPANZEE CAGE. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED ITS ESTIMATE SHEETS ON ITEM 2. THE SUMMARY ESTIMATE SHEET SHOWS THE PRICES FOR MATERIALS, LABOR AND OVERHEAD AND THE TOTAL OF SUCH PRICES IS SHOWN AS $11,584.80. THE ESTIMATE SHEET ALSO SHOWS THAT THE AMOUNT OF $11,584.80 WAS DIVIDED BY 24--- THE NUMBER OF CAGES REQUIRED TO MAKE UP THE 12 UNITS (ONE UNIT CONSISTING OF A BOTTOM CAGE AND A TOP CAGE) CALLED FOR UNDER ITEM 2--- AND THAT A QUOTIENT OF $482.70 WAS OBTAINED; AND THAT TO SUCH QUOTIENT OF $482.70 THE CORPORATION ADDED THE SUM OF $317 FOR LABOR AND THE SUM OF $22.30 FOR PROFIT TO ARRIVE AT A SELLING PRICE OF $822--- THE PRICE WHICH THE CORPORATION ALLEGES IT INTENDED TO QUOTE FOR ITEM 2. SINCE THE ESTIMATE SHEET SHOWS THAT THE $822 PER UNIT PRICE WAS BASED ON 24 UNITS RATHER THAN 12 UNITS AS CALLED FOR BY THE INVITATION, WE ARE OF THE OPINION THAT SUCH ESTIMATE SHEET IS OF LITTLE EVIDENTIARY VALUE. IT IS NOT CLEAR FROM THE RECORD WHETHER THE CORPORATION IS CLAIMING THAT ITS TOTAL BID PRICE FOR ITEM 2 SHOULD HAVE BEEN $9,864 (12 UNITS AT $822 PER UNIT) OR $19,728 (24 UNITS AT $822 PER UNIT). IN ITS LETTER OF MAY 22, 1962, THE CORPORATION STATES THAT IT SHOULD BE PAID $822 PER UNIT FOR 12 UNITS WHEREAS IN A LETTER DATED NOVEMBER 30, 1963, THE CORPORATION'S ATTORNEY STATES THAT THE CORPORATION SHOULD BE PAID $822 PER UNIT FOR 24 UNITS. IN A SUBSEQUENT LETTER DATED MARCH 31, 1964, THE SAME ATTORNEY STATES THAT THE CORRECT AMOUNT SHOULD HAVE BEEN $822 PER UNIT FOR ITEM 2 BUT HE DOES NOT CLEARLY STATE THE NUMBER OF UNITS FOR WHICH THE CORPORATION SHOULD BE PAID.

IRRESPECTIVE OF THE QUESTION AS TO WHETHER THE CORPORATION'S ESTIMATE SHEETS ESTABLISH THAT AN ERROR WAS MADE BY THE CORPORATION IN ITS BID, AS ALLEGED, WE ARE OF THE VIEW THAT THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER THE CORPORATION MADE A BONA FIDE MISTAKE IN ITS BID BUT WHETHER A VALID CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID. THE CONTRACTING OFFICE REPORTS THAT IT WAS NOT ON NOTICE OF ERROR PRIOR TO THE ACCEPTANCE OF THE BID BECAUSE THERE HAS BEEN A TREND IN RECENT PROCUREMENTS FOR THE BID PRICED ON DOUBLE-TIER MONKEY CAGES TO DECREASE. IT IS REPORTED THAT IN MAY 1961, DOUBLE-TIER MONKEY CAGES WERE PROCURED AT A UNIT PRICE OF $680 AND THAT ON JUNE 21, 1963, THESE DOUBLE-TIER CAGES WERE PROCURED AT A UNIT PRICE OF $650. THE CORPORATION HAS EMPHASIZED THE FACT THAT ITS BID PRICE FOR ITEM 2, A DOUBLE-TIER MONKEY CAGE, WAS LESS THAN ITS BID PRICE FOR ITEM 1, A SINGLE-TIER CHIMPANZEE CAGE. THE CORPORATION ALSO STRESSES THE FACT THAT ALL OTHER BIDDERS QUOTED A HIGHER PRICE FOR ITEM 1 THAN FOR ITEM 2. IN THAT REGARD, AN ANALYSIS OF THE FOUR BIDS RECEIVED ON ITEMS 1 AND 2 SHOWS THAT ALTHOUGH THE OTHER THREE BIDDERS SUBMITTED HIGHER BID PRICES ON ITEM 2 THAN THEY DID ON ITEM 1, THE BID OF ONE BIDDER ON ITEM 2 WAS ONLY $39 HIGHER THAN ITS BID ON ITEM 1. REGARD TO THE SIMILARITY OF THE CAGES REQUIRED UNDER ITEMS 1 AND 2, IT IS ADMINISTRATIVELY REPORTED THAT THE CAGE REQUIRED UNDER ITEM 1 IS LARGER IN SIZE THAN THE ONE REQUIRED UNDER ITEM 2. WE ARE OF THE OPINION THAT THE CIRCUMSTANCES PRESENT IN THIS CASE ARE NOT SUCH AS TO HAVE PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF AN ERROR IN THE BID OF THE CORPORATION. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE CORPORATION UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR IN THIS CASE WAS UNILATERAL--- NOT MUTUAL--- THE CORPORATION IS NOT ENTITLED TO RELIEF. SEE 20 COMP. GEN. 652; 26 ID. 415; AND 40 ID. 326, 332.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR PAYMENT OF ANY ADDITIONAL AMOUNT TO THE CORPORATION UNDER THE CONTRACT INVOLVED.