B-156771, JUL. 13, 1965

B-156771: Jul 13, 1965

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IN THE SPACE FOR INDICATING THE TYPE OF DELIVERY THE CONTRACTOR WAS OFFERING. THE BID OF KOGOD WAS ACCEPTED ON DECEMBER 19. PURCHASE ORDER NO. 1665-64 WAS ISSUED REQUESTING DELIVERY OF THE EQUIPMENT. IT ADVISED THE CONTRACTING OFFICER THAT IN FILLING OUT THE REQUEST FOR QUOTATIONS FORM IT HAD INADVERTENTLY INDICATED THEREON BY A CHECK MARK THAT ITS BID WAS F.O.B. THE CONTRACTING OFFICER ADVISED KOGOD THAT HE WAS UNABLE TO COMPLY WITH ITS REQUEST TO AMEND THE PURCHASE ORDER. THAT HE WAS INFORMED BY THEM THAT A FIRM SET PRICE FOR THE EQUIPMENT ALONE WOULD EXPEDITE THE PROCUREMENT OF SUCH EQUIPMENT AND THAT "THE FREIGHT WOULD BE TAKEN CARE OF AS A SEPARATE ENTIRETY.'. THAT AT THE TIME THE EQUIPMENT WAS DISCUSSED.

B-156771, JUL. 13, 1965

TO MR. A. J. BREINICH, FINANCE AND ACCOUNTING OFFICER, ARMY MAP SERVICE:

BY THIRD INDORSEMENT DATED APRIL 30, 1965, THE FINANCE CENTER, UNITED STATES ARMY, INDIANAPOLIS, INDIANA, FORWARDED YOUR REQUEST FOR AN ADVANCE DECISION AS TO THE LEGALITY OF MAKING PAYMENT ON A VOUCHER STATED IN FAVOR OF KOGOD-DUBB-REVERE, INC., WASHINGTON, D.C., IN THE AMOUNT OF $213.63, REPRESENTING FREIGHT CHARGES ON EQUIPMENT DELIVERED TO THE ARMY MAP SERVICE UNDER PURCHASE ORDER NO. 1665-64.

IT APPEARS THAT IN RESPONSE TO A REQUEST FOR QUOTATIONS ISSUED BY THE ARMY MAP SERVICE, WASHINGTON, D.C., KOGOD-DUBB-REVERE, INC., HEREINAFTER REFERRED TO AS KOGOD, SUBMITTED A BID OFFERING TO INSTALL AND DELIVER CERTAIN COUNTER, DISPLAY AND TURNSTILE EQUIPMENT FOR THE AGGREGATE TOTAL AMOUNT OF $2,402.64. IN THE SPACE FOR INDICATING THE TYPE OF DELIVERY THE CONTRACTOR WAS OFFERING, THE COMPANY CHECKED THE BOX COVERING DELIVERY F.O.B. DESTINATION. THE BID OF KOGOD WAS ACCEPTED ON DECEMBER 19, 1963, AND PURCHASE ORDER NO. 1665-64 WAS ISSUED REQUESTING DELIVERY OF THE EQUIPMENT.

THE RECORD INDICATES THAT AFTER KOGOD DELIVERED THE EQUIPMENT AND HAD BEEN PAID THEREFOR, IT ADVISED THE CONTRACTING OFFICER THAT IN FILLING OUT THE REQUEST FOR QUOTATIONS FORM IT HAD INADVERTENTLY INDICATED THEREON BY A CHECK MARK THAT ITS BID WAS F.O.B. DESTINATION RATHER THAN F.O.B. ORIGIN. THE CORPORATION REQUESTED THAT THE PURCHASE ORDER BE AMENDED TO PROVIDE FOR REIMBURSEMENT OF FREIGHT CHARGES IN THE AMOUNT OF $213.63. SUPPORT OF ITS REQUEST THE CORPORATION SUBMITTED COPIES OF RECEIPTED FREIGHT BILLS. ON APRIL 2, 1964, THE CONTRACTING OFFICER ADVISED KOGOD THAT HE WAS UNABLE TO COMPLY WITH ITS REQUEST TO AMEND THE PURCHASE ORDER.

IN A LETTER DATED OCTOBER 8, 1964, MR. FOLSTEIN, SALES ENGINEER FOR KOGOD, AGAIN REQUESTED PAYMENT OF THE FREIGHT INVOICE AND STATED THAT PRIOR TO THE SUBMISSION OF THE CORPORATION'S FORMAL BID, HE HAD DISCUSSED THE EQUIPMENT WITH TWO EMPLOYEES OF THE ARMY MAP SERVICE PROPERTY MANAGEMENT OFFICE, MR. JOHN KENYON AND MR. EGGER, AND THAT HE WAS INFORMED BY THEM THAT A FIRM SET PRICE FOR THE EQUIPMENT ALONE WOULD EXPEDITE THE PROCUREMENT OF SUCH EQUIPMENT AND THAT "THE FREIGHT WOULD BE TAKEN CARE OF AS A SEPARATE ENTIRETY.' IN THAT CONNECTION, MR. EGGER STATES IN A MEMORANDUM DATED OCTOBER 19, 1964, THAT AT THE TIME THE EQUIPMENT WAS DISCUSSED, HE INFORMED MR. FOLSTEIN THAT WHEN HE SUBMITTED THE CORPORATION'S FORMAL QUOTATION HE SHOULD LIST THE ESTIMATED FREIGHT CHARGES AS A SEPARATE ITEM OR QUOTE A PRICE F.O.B. ORIGIN, IN WHICH CASE THE MATERIAL WOULD BE SHIPPED ON A GOVERNMENT BILL OF LADING. MR. EGGER ALSO STATED THAT MR. FOLSTEIN EVIDENTLY MISUNDERSTOOD HIM OR OVERLOOKED THE ITEM OF FREIGHT WHEN SUBMITTING HIS CORPORATION'S QUOTATION TO THE CONTRACTING OFFICE. THE RECORD CONTAINS AN ESTIMATE SHEET WHICH WAS PREPARED BY MR. FOLSTEIN FOR MR. EGGAR AND IT SHOWS THAT MR. FOLSTEIN ESTIMATED THE COST OF THE REQUIRED EQUIPMENT AS BEING $2,460.74--- $58.10 MORE THAN THE CORPORATIONS' FORMAL F.O.B. DESTINATION BID PRICE--- AND THAT THE PRICE WAS BASED ON F.O.B.POINT ORIGIN.

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN THE BID; THAT THE CORPORATION'S FORMAL QUOTATION CONFIRMED AN UNSOLICITED LETTER PROPOSAL DATED OCTOBER 30, 1963; THAT THE LETTER PROPOSAL DID NOT INDICATE OTHER THAN F.O.B.DESTINATION; AND THAT THE INFORMATION FURNISHED TO MR. EGGER AND MR. KENYON OF THE PROPERTY MANAGEMENT OFFICE BY MR. FOLSTEIN WAS NOT AVAILABLE TO THE PROCUREMENT DIVISION WHEN THE ORDER WAS PLACED WITH KOGOD. THE ABSTRACT OF BIDS SHOWS THAT THE ONLY OTHER BIDDER QUOTED AN AGGREGATE TOTAL PRICE OF $2,681 FOR THE REQUIRED EQUIPMENT. 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 EDWIN DOUGHERTY AND M. H. OGDEN 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 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 39 ID. 36.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN PURCHASE ORDER NO. 1665-64, AS REQUESTED BY KOGOD. THEREFORE, PAYMENT OF THE VOUCHER FOR $213.63 IS NOT AUTHORIZED. THE VOUCHER AND ITS ACCOMPANYING PAPERS ARE BEING RETAINED HERE.