B-155686, FEB. 12, 1965

B-155686: Feb 12, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 24. YOU MADE IN YOUR QUOTATION UPON WHICH THE PURCHASE ORDER WAS ISSUED. ONE OTHER BID OF $0.2869 A POUND WAS RECEIVED FOR THE ITEM BUT REJECTED BECAUSE IT WAS BASED ON FURNISHING AN ALTERNATE MINIMUM QUANTITY OF 5. SINCE THE PRICE QUOTED BY YOU OF $0.3159 A POUND FOR ITEM NO. 1 WAS THE LOWEST RESPONSIVE QUOTATION RECEIVED. 759 POUNDS OF THE ALLOY STEEL PLATES WAS RECEIVED BY THE SPACE FLIGHT CENTER ON APRIL 2. PAYMENT WAS MADE TO YOU ON NOVEMBER 30. IN YOUR LETTER TO THIS OFFICE YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR QUOTATION TO THE SPACE FLIGHT CENTER ON ITEM NO. 1. THAT IT WAS NECESSARY FOR YOU TO PURCHASE THE ALLOY STEEL PLATES FROM ANOTHER CORPORATION AT A PRICE OF $0.4060 A POUND.

B-155686, FEB. 12, 1965

TO J. M. TULL METALS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 24, 1964, WITH ENCLOSURE, REQUESTING WHATEVER RELIEF MAY BE POSSIBLE UNDER GEORGE C. MARSHALL SPACE FLIGHT CENTER PURCHASE ORDER NO. H-59212, DATED JANUARY 3, 1964, IN VIEW OF AN ERROR WHICH, YOU ALLEGE, YOU MADE IN YOUR QUOTATION UPON WHICH THE PURCHASE ORDER WAS ISSUED.

IN RESPONSE TO TELEPHONIC REQUESTS FOR QUOTATIONS FOR TWO ITEMS OF ALLOY STEEL PLATES MADE BY THE SPACE FLIGHT CENTER ON DECEMBER 26 AND DECEMBER 27, 1963, YOU QUOTED A PRICE FOR ITEM NO. 1, HERE INVOLVED, OF $0.3159 A POUND FOR THE 4,404 POUNDS COVERED BY THAT ITEM. ONE OTHER BID OF $0.2869 A POUND WAS RECEIVED FOR THE ITEM BUT REJECTED BECAUSE IT WAS BASED ON FURNISHING AN ALTERNATE MINIMUM QUANTITY OF 5,875 POUNDS INSTEAD OF THE 4,404 POUNDS SPECIFIED. SINCE THE PRICE QUOTED BY YOU OF $0.3159 A POUND FOR ITEM NO. 1 WAS THE LOWEST RESPONSIVE QUOTATION RECEIVED, THE SPACE FLIGHT CENTER ISSUED PURCHASE ORDER NO. H-59212 TO YOU ON JANUARY 3, 1964, FOR THE 4,404 POUNDS OF ALLOY STEEL PLATES SPECIFIED AT $0.3159 A POUND, AND INCLUDED IN THE ORDER A VARIATION IN QUANTITY OF PLUS OR MINUS FIFTEEN (15) PERCENT. SHIPMENT OF 4,759 POUNDS OF THE ALLOY STEEL PLATES WAS RECEIVED BY THE SPACE FLIGHT CENTER ON APRIL 2, 1964. YOU SUBMITTED AN INVOICE DATED NOVEMBER 16, 1964, AND PAYMENT WAS MADE TO YOU ON NOVEMBER 30, 1964, IN THE NET AMOUNT OF $1,495.85. IN YOUR LETTER TO THIS OFFICE YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR QUOTATION TO THE SPACE FLIGHT CENTER ON ITEM NO. 1, THAT IT WAS NECESSARY FOR YOU TO PURCHASE THE ALLOY STEEL PLATES FROM ANOTHER CORPORATION AT A PRICE OF $0.4060 A POUND, THAT THIS PURCHASE RESULTED IN A LOSS TO YOU OF $428.78 AND YOU REQUEST WHATEVER RELIEF MAY BE POSSIBLE IN THE MATTER.

AT THE OUTSET IT MAY BE OBSERVED THAT NOWHERE HAVE YOU SHOWN OR EXPLAINED IN WHAT RESPECT YOUR QUOTATION WAS IN ERROR, OTHER THAN TO STATE THAT YOU WERE REQUIRED TO PAY YOUR SUPPLIER A HIGHER PRICE FOR THE MATERIAL THAN THAT QUOTED BY YOU TO THE GOVERNMENT. THIS CIRCUMSTANCE ALONE DOES NOT JUSTIFY REFORMATION OR RESCISSION OF A CONTRACT. BUT, IN ANY EVENT, AN ERROR IN A BID ALLEGED AFTER A CONTRACT HAS BEEN AWARDED, AS IN THIS CASE, PRESENTS NO BASIS FOR RELIEF UNLESS IT CAN BE SHOWN THAT THE MISTAKE WAS MUTUAL OR WAS SO APPARENT AS TO CHARGE THE GOVERNMENT CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF THE MISTAKE AT THE TIME THE BID WAS ACCEPTED. SEE 23 COMP. GEN. 596 AND THE CASES CITED THEREIN. THERE CAN BE NO DOUBT, OF COURSE, THAT THE MISTAKE ALLEGED HERE WAS A UNILATERAL RATHER THAN A MUTUAL MISTAKE. IT IS EQUALLY CLEAR THAT THE CONTRACTING OFFICER CANNOT BE CHARGED WITH CONSTRUCTIVE NOTICE OF ANY ERROR IN THIS CASE. HERE THE CONTRACTING OFFICER WAS IN NO POSITION TO COMPARE BIDS WITH THE VIEW OF DETERMINING THE PROBABILITY OF ERROR SINCE YOURS WAS THE ONLY RESPONSIVE BID RECEIVED. IT IS NOTED, HOWEVER, THAT WHILE THE ONLY OTHER BID RECEIVED FOR ITEM NO. 1 WAS BASED ON FURNISHING A LARGER QUANTITY, IT WAS IN THE AMOUNT OF $0.2869 A POUND WHICH IS EVEN LOWER THAN THE PRICE QUOTED BY YOU.

UNDER THE CIRCUMSTANCES, IT MUST BE HELD THAT THE BID WAS ACCEPTED IN GOOD FAITH AND THAT SUCH AN ACCEPTANCE CONSUMMATES A VALID CONTRACT WHICH FIXES THE RIGHTS AND LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH CONTRACTS. YOUR CLAIM FOR AN ADDITIONAL AMOUNT ..END :