B-155009, OCT. 7, 1964

B-155009: Oct 7, 1964

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DEFENSE SUPPLY AGENCY: REFERENCE IS MADE TO A LETTER DATED AUGUST 20. DSA-7-63-1046 INVITED BIDS ON THE FOLLOWING TWO ITEMS (AND ON OTHERS WHICH ARE NOT DIRECTLY CONCERNED HERE): ITEM 1. DESTINATION. 305 EACH WERE TO BE DELIVERED TO THE NAVAL SUPPLY CENTER IN NORFOLK. DESTINATION. 420 EACH WERE TO BE DELIVERED NAVAL SUPPLY CENTER. 110 EACH WERE TO BE DELIVERED F.O.B. BIDS WERE OPENED IN ACCORDANCE WITH THE TERMS OF THE INVITATION ON MAY 22. NINE BIDS WERE RECEIVED ON THE TWO ITEMS CONCERNED. WERE AS FOLLOWS ON A PER-UNIT BASIS: CHART BIDDER ITEM 1 ITEM 2 1. DSA-7-02756 WAS MADE TO THE CRANE SUPPLY COMPANY FOR ITEMS 1 AND 2. SHIPMENTS WERE COMPLETED ON OCTOBER 4. FINAL PAYMENT WAS MADE NOVEMBER 7.

B-155009, OCT. 7, 1964

TO VICE ADMIRAL JOSEPH M. LYLE, DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 20, 1964, FROM YOUR ASSISTANT COUNSEL, REQUESTING OUR DECISION RELATIVE TO A MISTAKE IN BID ALLEGED BY THE CRANE SUPPLY COMPANY AFTER AWARD OF CONTRACT NO. DSA 7-02756, FOR THE PROCUREMENT OF A QUANTITY OF HIGH PRESSURE PIPE ELBOWS IN ACCORDANCE WITH BUREAU OF SHIPS DRAWING NO. 5000-S4823 1385766.

ON MAY 7, 1963, THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC) UNDER INVITATION FOR BIDS NO. DSA-7-63-1046 INVITED BIDS ON THE FOLLOWING TWO ITEMS (AND ON OTHERS WHICH ARE NOT DIRECTLY CONCERNED HERE):

ITEM 1, 610 EACH, FSN 4730-289-8475 ELBOW, TUBE, CAST BRONZE, 90 DEG ANGLE FROM STRAIGHT FLOW, BOTH ENDS IDENTICAL, UNTHREADED FEMALE, WITH GROOVE FOR BRAZING RING AND WITH PREINSERTED RING. 5-INCH NOMINAL PIPE SIZE, F.O.B. DESTINATION. 305 EACH WERE TO BE DELIVERED TO THE NAVAL SUPPLY CENTER IN NORFOLK, VIRGINIA, AND 305 EACH TO THE NAVAL SUPPLY CENTER IN OAKLAND, CALIFORNIA.

ITEM 2, 530 EACH, FSN 4730-289-8474 ELBOW, TUBE (IDENTICAL WITH ITEM 1 EXCEPT AS TO SIZE) 4-INCH NOMINAL PIPE SIZE, F.O.B. DESTINATION. 420 EACH WERE TO BE DELIVERED NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, AND 110 EACH WERE TO BE DELIVERED F.O.B. DESTINATION NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA.

BIDS WERE OPENED IN ACCORDANCE WITH THE TERMS OF THE INVITATION ON MAY 22, 1963. NINE BIDS WERE RECEIVED ON THE TWO ITEMS CONCERNED, AND WERE AS FOLLOWS ON A PER-UNIT BASIS:

CHART

BIDDER ITEM 1 ITEM 2 1. SMITH BROS. HARDWARE

$14.405 $ 7.8671 2. STANLEY G. FLAGG 15.39 8.405 3. MINDICO CORP. 13.917 7.60 4. CRANE SUPPLY CO. 13.8704 7.2506 5. WALWORTH CO. 27.10 16.01 6. THOMAS SUMMERVILLE 13.92 7.605 7. TIOGA PIPE SUPPLY CO. 14.53 7.93 8. ROBERTS SUPPLY CO. 13.91 7.62 9. B. H. DEACON CO. 14.34 7.829

ON JUNE 6, 1963, AWARD OF CONTRACT NO. DSA-7-02756 WAS MADE TO THE CRANE SUPPLY COMPANY FOR ITEMS 1 AND 2, AMONG OTHERS SCHEDULED IN THE INVITATION. SHIPMENTS WERE COMPLETED ON OCTOBER 4, 1963, AND FINAL PAYMENT WAS MADE NOVEMBER 7, 1963.

BY LETTER DATED DECEMBER 3, 1963, TO DCSC, THE CONTRACTOR GAVE ITS FIRST NOTICE OF THE ALLEGED MISTAKE IN BID. SUBSEQUENT THERETO, A SERIES OF LETTERS WERE RECEIVED BY DCSC IN WHICH THE CLAIMANT SET FORTH THE FOLLOWING ALLEGATIONS.

THE CRANE SUPPLY COMPANY'S SUPPLIER, STANLEY G. FLAGG AND CO., INC., OFFERED TO FURNISH THE TWO ITEMS IN QUESTION F.O.B. STOWE, PENNSYLVANIA, WITH FREIGHT ALLOWED ON SHIPMENTS OF 250 POUNDS OR MORE AT $15.39 EACH FOR ITEM 1 AND $8.405 EACH FOR ITEM 2 LESS 10 PERCENT. CLAIMANT ALLEGES THAT FLAGG HAD QUOTED IN THE BELIEF THAT THE ITEMS WERE 200-POUND, TYPE "A" FITTINGS, WHEN, IN FACT, THE REQUIREMENT CALLED FOR 800- TO 1,500-POUND FITTINGS; AND THAT ALL BIDDERS BUT ONE INTENDED TO SUPPLY MATERIAL FURNISHED BY FLAGG. CRANE FURTHER ALLEGES THAT THE SAME ERROR WAS MADE BY FLAGG IN QUOTING TO THE OTHER BIDDERS, AND ADVISES THAT FLAGG QUOTED THE PRICES INCORRECTLY BECAUSE THE GOVERNMENT FAILED TO SPECIFY IN THE INVITATION THE PRESSURE RATINGS OF THE PIPE ELBOW FITTINGS. FLAGG, IN A LETTER DATED NOVEMBER 5, 1963, TO DCSC, ADVISED WITH RESPECT TO THE ALLEGED ERROR AS FOLLOWS:

"* * * UNFORTUNATELY, YOUR DESCRIPTION DOES NOT INCLUDE A PRESSURE RATING. AT THE TIME OF QUOTATION WE DID NOT HAVE AND STILL DO NOT HAVE RECORDS OF THE FEDERAL STOCK NUMBERS. THEREFORE, WE HAD NO PHYSICAL WAY OF CHECKING OUR QUOTATION WITH THE STOCK NUMBER.

"BETWEEN THE TIME OF OUR QUOTATION AND RECEIPT OF CRANE'S ORDER, WE, ON OUR OWN DEVELOPED A PARTIAL LIST OF THESE STOCK NUMBERS AS A RESULT OF QUOTATIONS OVER A LONG PERIOD OF TIME IN WHICH VARIOUS YARDS AND INSTALLATIONS HAD GIVEN US MORE COMPLETE INFORMATION. THIS LIST IS BY NO MEANS COMPLETE, WE WERE ABLE TO DETERMINE THAT CRANE'S ORDER CALLED FOR 800-1500 POUND FITTINGS AND NOT LOW PRESSURE FITTINGS.'

THE CONTRACTING OFFICER STATED THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID AT THE TIME OF AWARD SINCE ONLY ONE BID WAS OUT OF LINE WITH THE OTHER BIDS RECEIVED. WE AGREE THAT THE CONTRACTING OFFICER DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR AS ALLEGED BY CRANE. WHILE CRANE'S BID WAS ABOUT 50 PERCENT LESS THAN THE HIGHEST BID RECEIVED, THERE WAS APPROXIMATELY ONLY A 1 PERCENT DIFFERENCE BETWEEN ITS BID AND THE NEXT THREE BIDS. B-154125, MAY 21, 1964. IT IS CLEARLY THE RESPONSIBILITY OF THE BIDDER IN THE FIRST INSTANCE TO ASCERTAIN AND QUOTE A PRICE THAT WILL ALLOW IT A REASONABLE PROFIT, AND THE GOVERNMENT SHOULD NOT BE HELD LIABLE FOR ANY LOSS WHICH IS THE RESULT OF AN IMPROVIDENT QUOTATION. FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF THE CONTRACTOR SUBMITTED A BID BASED UPON AN ERRONEOUS QUOTATION FROM ITS SUPPLIER, THAT IS A MATTER WHICH DOES NOT INVOLVE THE GOVERNMENT AND THE CONTRACTOR MUST ASSUME THE CONSEQUENCES OF THE ERROR OR LOOK TO ITS SUPPLIER FOR ADJUSTMENT. 6 COMP. GEN. 504; 18 ID. 28; 31 ID. 479.

REGARDING THE ALLEGATION THAT THE SPECIFICATIONS WERE INADEQUATE, WE NOTE THAT THE REFERENCED BUREAU OF SHIPS DRAWINGS CONTAIN SERVICE RATING TABLES WHICH SHOW MAXIMUM PRESSURE RATINGS OF 800 TO 1,500 P.S.I. FOR THE SIZES OF PIPE ELBOWS BEING PROCURED HERE. IT WAS THE RESPONSIBILITY OF THE BIDDER TO ASCERTAIN FROM THE INVITATION AND ATTACHMENTS, OR BY INQUIRY PRIOR TO BID SUBMISSION, THE EXACT REQUIREMENTS OF THE GOVERNMENT. HENCE, ANY MISTAKE--- IF IT CAN AT ALL BE CALLED A MISTAKE--- WAS CLEARLY UNILATERAL IN NATURE AND DOES NOT ENTITLE THE CLAIMANT TO THE RELIEF REQUESTED. B-143802, SEPTEMBER 1, 1960; B-137053, OCTOBER 16, 1958; AND B -154125, MAY 21, 1964.

THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER AN ERROR IN BID HAS ACTUALLY BEEN MADE, BUT WHETHER A VALID AND BINDING CONTRACT AROSE. THE BASIS OF THE RECORD BEFORE US, WE CONCLUDE THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD, AND THAT THE ACCEPTANCE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDING, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT.CL. 249, 259.