B-157683, OCT. 7, 1965

B-157683, OCT. 7, 1965

TO THE HONORABLE JAMES E. WEBB, ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 17, 1965, FILE REFERENCE KDG, FROM THE ACTING DIRECTOR, OFFICE OF PROCUREMENT, REQUESTING A DECISION AS TO WHETHER THE RELIEF SOUGHT BY THE CONTINENTAL WIRE CORPORATION UNDER CONTRACT NO. NAS5 7935 MAY BE GRANTED.

THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, GODDARD SPACE FLIGHT CENTER, GREENBELT, MARYLAND, BY INVITATION NO. IFB S-22887/542, REQUESTED BIDS FOR FURNISHING 25 ITEMS OF CABLE, CONTROL AND COAXIAL, CONNECTORS AND RELATED ACCESSORIES. ITEM 25 CALLED FOR A QUANTITY OF 24,700 FEET OF:

"NINETEEN - CONDUCTOR SHIELDED NO. 12 CONTROL CABLE, CONSISTING OF NINETEEN (19) INDIVIDUALLY SHIELDED NO. 12 CONDUCTORS, STRANDED (7/0.0305) TINNED COPPER CONDUCTORS, WITH POLYETHYLENE INSULATION, EACH CONDUCTOR SHIELDED WITH AN ALUMINUM MYLAR SHIELD AND A TINNED COPPER DRAIN WIRE WITH EACH CONDUCTOR, POLYETHYLENE OR POLYVINYLCHLORIDE JACKET. CABLE SHALL BE SUITABLE IN ALL RESPECTS FOR DIRECT BURIAL. EACH CONDUCTOR SHALL BE SUITABLE FOR 300 VOLT OPERATION.'

IN RESPONSE THE CONTINENTAL WIRE CORPORATION SUBMITTED A BID OFFERING TO FURNISH, AMONG OTHER ITEMS, THE CABLE COVERED BY ITEM 25 AT A PRICE OF $0.44 PER FOOT. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEM 25 AND OTHER ITEMS ON MAY 20, 1965.

IT IS REPORTED THAT ON MAY 27, 1965, A REPRESENTATIVE OF THE CONTINENTAL WIRE CORPORATION VERBALLY ALLEGED THAT THE COMPANY HAD MADE A MISTAKE IN COMPUTING ITS BID PRICE FOR ITEM 25. IN A CONFIRMING LETTER DATED MAY 27, 1965, THE COMPANY STATED THAT IN COMPUTING ITS BID PRICE FOR ITEM 25, IT ERRONEOUSLY BASED IT ON FURNISHING 12-CONDUCTOR CABLE RATHER THAN 19- CONDUCTOR CABLE AS REQUIRED BY THE INVITATION FOR BIDS. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED ITS ORIGINAL ESTIMATE SHEET AND ITS PUBLISHED PRICE LIST FOR TYPE PN CABLE WHICH SHOWS THE PRICE (FOR 2,000 FEET AND OVER) FOR 12-CONDUCTOR CABLE AS $472 PER THOUSAND FEET AND 19-CONDUCTOR CABLE AS $718 PER THOUSAND FEET. THE COMPANY STATED THAT BASED ON THE PERCENTILE DIFFERENCES BETWEEN $472 AND $718 OF APPROXIMATELY 34 PERCENT, THE CORRESPONDING PRICE TO THE $0.44 PER FOOT QUOTED WOULD HAVE BEEN $0.666 PER FOOT AND THAT BASED ON ACTUAL COST IT WOULD HAVE QUOTED $0.645 PER FOOT. THE COMPANY REQUESTED THAT IT BE PAID ITS ACTUAL COST OF $0.58 PER FOOT FOR THE CABLE TO BE FURNISHED UNDER ITEM 25.

IRRESPECTIVE OF THE QUESTION AS TO WHETHER THE COMPANY'S WORKSHEETS ESTABLISH THAT AN ERROR WAS MADE BY THE COMPANY IN ITS BID, AS ALLEGED, WE ARE OF THE VIEW THAT THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER THE COMPANY MADE A BONA FIDE MISTAKE IN ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF ITS BID. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN THE COMPANY'S BID. IT IS REPORTED THAT THE FOUR OTHER BIDS ON ITEM 25 WERE IN THE AMOUNTS OF $0.642, $0.831, $0.9812 AND $1.534 PER FOOT. VIEW OF THE WIDE RANGE OF BIDS RECEIVED ON THE CABLE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN THE COMPANY'S BID. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE COMPANY 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 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 COMPANY'S NEGLIGENCE AND SINCE THE ERROR IN THIS CASE WAS UNILATERAL--- NOT MUTUAL--- THE COMPANY IS 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 INCREASING THE CONTRACT PRICE FOR ITEM 25, AS REQUESTED.