B-157226, SEP. 21, 1965

B-157226, SEP. 21, 1965

TO SYST-A-MATIC JANITOR SERVICES AND AAA JANITOR SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1965, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH WAS THE BASIS OF CONTRACT NO. AF 38/601/-3265, SHAW AIR FORCE BASE, SOUTH CAROLINA.

INVITATION FOR BIDS NO. AF 38-601-65-3 WAS ISSUED ON JULY 31, 1965, BY HEADQUARTERS, 363 COMBAT SUPPORT GROUP (TAC), SHAW AIR FORCE BASE, SOUTH CAROLINA, AND CONTEMPLATED CUSTODIAL SERVICES FOR SPECIFIC BUILDINGS AT SHAW AIR FORCE BASE, SOUTH CAROLINA, FOR THE PERIOD OCTOBER 1, 1964, THROUGH JUNE 30, 1965. NINE BIDDERS RESPONDED TO THE INVITATION. ALL BIDDERS INDICATED THEIR BIDS WOULD REMAIN FIRM FOR SIXTY DAYS. TWO OF THE BIDDERS QUALIFIED THEIR BIDS "ALL OR NONE" AND THESE BIDS WERE REJECTED BY THE CONTRACTING OFFICER. ONE BIDDER, MANPOWER, INCORPORATED, AFTER BID OPENING, BUT BEFORE AWARD, ALLEGED IT HAD MADE A MISTAKE IN ITS BID, AND WAS AUTHORIZED TO WITHDRAW ITS BID. THE RECORD SHOWS THAT MANPOWER, INCORPORATED, WAS LOW BIDDER WITH AAA JANITOR SERVICE AS SECOND LOW BIDDER.

THE RECORD SHOWS THAT VERIFICATION OF YOUR BID WAS SOUGHT ON SEPTEMBER 21, 1964; THAT YOUR BID WAS ORALLY CONFIRMED AT $36,297 AND THAT THE PRICE INCLUDED ALL ELEMENTS OF PERFORMANCE REQUIRED TO PERFORM CUSTODIAL SERVICE DURING THE PERIOD OCTOBER 1, 1964, THROUGH JUNE 30, 1965. YOU WERE REQUESTED TO VERIFY YOUR BID IN WRITING AND SUPPLY A STATEMENT OF ASSETS AND LIABILITIES. IN YOUR LETTER DATED SEPTEMBER 22, 1964, ADDRESSED TO THE BASE PROCUREMENT OFFICE, SHAW AIR FORCE BASE, YOU CONFIRMED YOUR BID AND SUPPLIED THE FINANCIAL INFORMATION REQUESTED.

THE RECORD SHOWS THAT ON SEPTEMBER 25, 1964, AWARD OF A CONTRACT WAS MADE TO YOUR COMPANY IN THE AMOUNT OF $27,487.80 FOR CUSTODIAL SERVICE OF CERTAIN SPECIFIED BUILDINGS ON THE BASE; THAT A SUPPLEMENTAL AGREEMENT WAS ISSUED ON OCTOBER 1, 1964, ADDING ADDITIONAL BUILDINGS TO THE CONTRACT FOR A TOTAL INCREASE PER MONTH OF $521.92. THIS LATTER ADDITION INCREASED THE TOTAL CONTRACT PRICE TO $32,185.08. FOLLOWING THE AWARD OF THE CONTRACT TO YOU, REPRESENTATIONS WERE MADE BY TELEPHONE CALLS AND BY LETTER DATED SEPTEMBER 27, 1964, TO THE CONTRACTING OFFICER THAT YOU HAD ERRED IN PREPARING YOUR BID AND WISHED TO REFUSE THE AWARD AND WITHDRAW FROM THE CONTRACT. IN YOUR LETTERS OF SEPTEMBER 27, 1964, AND OCTOBER 6, 1964, IT IS ALLEGED THAT THE WORKING CONDITIONS WERE MISREPRESENTED SINCE MANY OF THE BUILDINGS TO BE SERVICED WERE IN CONSTANT USE; THAT THE AWARD WAS UNTIMELY; AND THE MISTAKE IN BID WAS OCCASIONED BY THE FAILURE TO INCLUDE PRICING FOR QUARTERLY STRIPPING OPERATION AND SEMI-ANNUAL REQUIREMENT FOR WINDOW WASHING. IN SUPPORT OF THE ALLEGATION OF ERROR IN THE LETTER OF OCTOBER 6, 1964, WORKSHEETS WERE SUBMITTED WHICH SHOW COMPUTATIONS OF MAN HOURS AND PRICES FOR VARIOUS ITEMS OF WORK.

IRRESPECTIVE OF THE QUESTION AS TO WHETHER YOUR WORKSHEETS ESTABLISH THAT AN ERROR WAS MADE IN YOUR BID, AS ALLEGED, WE ARE OF THE VIEW THAT THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER A BONA FIDE MISTAKE WAS MADE IN THE BID BUT WHETHER A VALID CONTRACT WAS CONSUMMATED BY ACCEPTANCE OF THE BID. THE CONTRACTING OFFICER HAS REPORTED AND THE FILE EVIDENCES THAT YOU WERE REQUESTED TO VERIFY YOUR BID BOTH ORALLY AND IN WRITING AND THAT YOU DID, IN FACT, CONFIRM YOUR BID AS MADE, PRIOR TO AWARD. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH-- - NO ERROR HAVING BEEN ALLEGED 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, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO YOUR COMPANY'S NEGLIGENCE AND SINCE THE ERROR IN THIS CASE WAS UNILATERAL--- NOT MUTUAL--- YOU ARE NOT ENTITLED TO RELIEF. SEE 20 COMP. GEN. 652; 26 ID. 415; AND 40 ID. 326, 332.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING OR REFORMING THE CONTRACT.