B-160501, APR. 24, 1967

B-160501, APR. 24, 1967

TO WOODHILL NIPPLE AND SUPPLY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1966, AND YOUR ATTORNEY'S LETTER OF JANUARY 5, 1967, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF DEFENSE SUPPLY AGENCY CONTRACT NO. DSA-700-26549, WITH THE DEFENSE CONSTRUCTION SUPPLY CENTER, COLUMBUS, OHIO.

THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC), DIRECTORATE OF PROCUREMENT AND PRODUCTION, COLUMBUS, OHIO, BY INVITATION FOR BIDS (IFB) NO. DSA-700- 66-3264 ISSUED ON FEBRUARY 23, 1966, REQUESTED BIDS FOR FURNISHING FOUR ITEMS CONSISTING OF PIPE NIPPLES OF VARIOUS SIZES AND DIMENSIONS. ISSUED THE IFB REQUIRED PACKAGING, PACKING AND MARKING IN ACCORDANCE WITH PACKAGING SHEET NO. 914. ON MARCH 2, 1966, AMENDMENT NO. 1 TO THE IFB WAS ISSUED AND IT DELETED PACKAGING SHEET NO. 914 AS TO ALL ITEMS AND SUBSTITUTED THEREFOR THE VARIOUS REQUIREMENTS SET FORTH ON DCSC FORM 772/R2), ATTACHED TO THE AMENDMENT. THE EXTENSIVE CHANGES IN PACKAGING REQUIREMENTS, EFFECTED BY AMENDMENT NO. 1, WERE DETAILED AND NOT SUCH AS COULD EASILY BE OVERLOOKED. AMENDMENT NO. 1 WAS ACKNOWLEDGED BY ALL BIDDERS EXCEPT SOUTHEASTERN SALES COMPANY.

SIX BIDS WERE RECEIVED WITH UNIT PRICES ON THE FOUR ITEMS AS FOLLOWS:

TABLE

UNIT PRICES

BIDDER ITEM 1 ITEM 2 ITEM 3 ITEM 4 WOODHILL NIPPLE AND $ .177 $1.067 $1.396 $ .045

SUPPLY COMPANY (*) SOUTHEASTERN .196 1.61 2.05 .0495

SALES COMPANY NORCO FOUNDRY AND .2349 1.19 1.47 .077

SPECIALTY COMPANY, INC. ROBERTS SUPPLY COMPANY .25 1.45 1.90 .08 MINDECO CORPORATION .321 1.61 2.22 .091 SAMUEL LEVINE PLUMBING .51 1.79 2.46 .156

AND HEATING SUPPLIES,

INC.

(*) BIDDER FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT.

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

IT IS REPORTED THAT ON AUGUST 10, 1966, YOU ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT YOUR FIRM HAD MADE AN ERROR IN ITS BID. IN A LETTER DATED AUGUST 9, 1966, TO THE CONTRACTING OFFICER, YOU STATED THAT THE MISTAKE IN YOUR BID WAS DUE TO THE FAILURE OF YOUR PACKAGING SUBCONTRACTOR, OVERSEAS PACKING AND PROCESSING CO., TO MODIFY ITS PRICE QUOTATION AFTER BEING ADVISED BY YOU OF THE CHANGES IN PACKAGING MADE BY AMENDMENT NO. 1 TO THE INVITATION FOR BIDS. YOU ALSO STATED THAT WHEN ONE OF YOUR REPRESENTATIVES WENT WITH THE GOVERNMENT INSPECTOR TO INSPECT THE MERCHANDISE AT OVERSEAS, A REPRESENTATIVE OF THAT COMPANY POINTED OUT TO YOUR REPRESENTATIVE THAT THERE WAS A SUBSTANTIAL DIFFERENCE IN COST BETWEEN THE PACKAGING REQUIRED BY SHEET NO. 914, WHICH ACCOMPANIED THE ORIGINAL INVITATION, AND THE PACKAGING REQUIRED BY SHEET NO. 772/R2), WHICH ACCOMPANIED AMENDMENT NO. 1; THAT WHEN YOUR REPRESENTATIVE ASKED BY OVERSEAS DID NOT SUBMIT A NEW QUOTATION BASED ON SHEET NO. 772/R2), HE WAS TOLD THAT THERE MUST HAVE BEEN A MISUNDERSTANDING AS ITS CONTRACT FOR PACKAGING CALLED FOR PACKING IN ACCORDANCE WITH SHEET NO. 14; AND THAT YOUR REPRESENTATIVE WAS FURTHER ADVISED THAT THE CORRECT PRICE FOR THE REQUIRED PACKAGING WAS $11,000 INSTEAD OF $1,136 AS ORIGINALLY QUOTED. YOU REQUESTED THAT YOU BE PERMITTED TO PACK THE MERCHANDISE IN ACCORDANCE WITH THE PROVISIONS OF SHEET NO. 914 OR, IN THE ALTERNATIVE, THE GOVERNMENT PERFORM THE PACKAGING.

BY LETTER DATED AUGUST 16, 1966, THE CONTRACTING OFFICER ADVISED YOU THAT HE WAS WITHOUT AUTHORITY TO GRANT THE RELIEF REQUESTED AND IN RESPONSE TO HIS REQUEST YOU SUBMITTED YOUR WORKSHEETS AND COPIES OF VARIOUS QUOTATIONS RECEIVED FROM PACKAGING SUBCONTRACTORS. YOU REQUESTED THAT THE CONTRACT PRICE OF THE SUPPLIES BE INCREASED TO $6,633 TO COVER THE INCREASED COST OF PACKAGING ATTRIBUTABLE TO AMENDMENT NO. 1. YOU STATED THAT AT THE TIME YOU RECEIVED AMENDMENT NO. 1 AND SHEET NO. 772/R2), YOU TELEPHONED MR. PETRIME, JR., PACKING ENGINEER OF OVERSEAS, AND ADVISED HIM OF THE NEW PACKAGING REQUIREMENTS OF SHEET NO. 772/R2); THAT MR. PETRIME DID NOT ASK FOR A COPY OF SHEET NO. 772/R2); THAT YOU DID NOT SEND MR. PETRIME A COPY OF SHEET NO. 772/R2) BECAUSE YOU ASSUMED THAT HE WOULD HAVE A COPY THEREOF; AND THAT SUBSEQUENTLY MR. PETRIME TELEPHONED AND ADVISED THAT HIS COMPANY WOULD HOLD TO ITS ORIGINAL QUOTATION FOR THE REQUIRED PACKAGING. IT IS FURTHER STATED THAT DURING THE FIRST WEEK OF AUGUST 1966, A REPRESENTATIVE OF YOUR FIRM, TOGETHER WITH THE GOVERNMENT INSPECTOR, VISITED THE PLANT OF OVERSEAS AND THAT AT THIS TIME MR. PETRIME STATED THAT THE PACKAGING REQUIREMENTS LISTED ON SHEET NO. 772/R2) WERE COMPLICATED AND COSTLY AND THAT HE HAD NO PRIOR EXPERIENCE WITH THIS TYPE OF SPECIAL PACKAGING REQUIREMENTS; AND THAT MR. PETRIME GAVE YOUR REPRESENTATIVE A NEW QUOTATION OF $7,769 FOR THE PACKAGING REQUIRED BY SHEET NO. 772/R2).

IN HIS LETTER OF JANUARY 5, 1967, YOUR ATTORNEY INVITES OUR ATTENTION TO A STATEMENT MADE BY DCSC COUNSEL IN HIS LETTER OF NOVEMBER 8, 1966, TO YOUR FIRM, TO THE EFFECT THAT BECAUSE THE NEXT LOWEST BIDDER, SOUTHEASTERN SALES COMPANY, SUBMITTED UNIT BID PRICES OF $0.196, AND $0.495 FOR ITEMS 1 AND 4, THE CONTRACTING OFFICER COULD NOT REASONABLY HAVE BEEN ON NOTICE THAT AN ERROR HAD BEEN MADE IN THE BID OF YOUR FIRM. YOUR ATTORNEY CONTENDS THAT DCSC COUNSEL SHOULD NOT HAVE COMPARED YOUR FIRM'S BID PRICES WITH THE PRICES QUOTED BY SOUTHEASTERN BECAUSE THAT FIRM BY FAILING TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1 HAD INDICATED THAT ITS BID PRICES DID NOT INCLUDE THE EXTRA PACKAGING COST RESULTING FROM THE CHANGES MADE BY THAT AMENDMENT. IT ALSO IS CONTENDED BY YOUR ATTORNEY THAT YOUR BID SHOULD HAVE BEEN COMPARED WITH THE BID OF THE THIRD LOWEST BIDDER, NORCO FOUNDRY AND SPECIALTY COMPANY, INC., WHICH BID WAS APPROXIMATELY $7,000 HIGHER THAN YOUR BID.

SINCE SOUTHEASTERN FAILED TO ACKNOWLEDGE RECEIPT OF AMENDMENT NO. 1, IT WOULD APPEAR THAT ITS BID IS NONRESPONSIVE AND, THEREFORE, IS NOT FOR CONSIDERATION IN THE COMPARISON OF BIDS. HOWEVER, THIS FACT DOES NOT, IN OUR OPINION, HAVE ANY MATERIAL BEARING ON THE MATTER. THE SOLE QUESTION HERE FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN YOUR BID, AS ALLEGED, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. YOU WERE RESPONSIBLE FOR THE PREPARATION OF YOUR BID, AND ANY ERROR THAT MAY HAVE BEEN MADE THEREIN WAS UNILATERAL AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT.CL. 249; SALIGMAN V. UNITED STATES, 56 P.SUPP. 505. SEE, ALSO, 26 COMP. GEN. 415 AND 36 ID. 27. THE RECORD ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT TO ASCERTAIN THE CORRECTNESS OF YOUR BID WHEN YOU WERE REQUESTED TO CONFIRM YOUR BID PRICES AND TO VERIFY WHETHER THE ITEMS YOU PROPOSED TO FURNISH WOULD BE IN STRICT ACCORDANCE WITH THE DESCRIPTION GIVEN IN THE INVITATION FOR BIDS, AS WELL AS CONFORMING TO DELIVERY INSTRUCTIONS (PACKAGING INSTRUCTIONS) CITED IN AMENDMENT NO. 1. IT IS UNFORTUNATE THAT YOU ERRONEOUSLY ASSUMED THAT YOUR PACKAGING SUBCONTRACTOR HAD A COPY OF PACKING INSTRUCTION 772/R2), WHICH WAS THE BASIS FOR ISSUING AMENDMENT NO. 1. IT WAS NOT UNTIL AFTER YOU UNEQUIVOCALLY CONFIRMED YOUR BID THAT THE CONTRACTING OFFICER CONSIDERED IT CORRECT AND PROPER FOR AWARD. HAD THE CONTRACTING OFFICER THEREAFTER NOT AWARDED THE CONTRACT TO YOU AS THE LOWEST RESPONSIBLE BIDDER, HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. SEE CARNEGIE STEEL CO. V. CONNELLY, 97 ATL. 774; SHRIMPTON MFG. CO. V. BRIN, 125 S.W. 942; ALABAMA SHIRT AND TROUSER CO. V. UNITED STATES, 121 CT.CL. 313; 37 COMP. GEN. 786.

THE ACCEPTANCE, AFTER CONFIRMATION, OF YOUR BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD--- AND UNDER THE CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED BY ANY OFFICER OF THE GOVERNMENT IN THE ABSENCE OF ADEQUATE CONSIDERATION, AND CONSIDERATIONS OF SYMPATHY FOR POSSIBLE HARDSHIPS OR MISFORTUNES TO THE CONTRACTOR DO NOT AUTHORIZE ANY EXCEPTION TO THE RULE. SEE 22 COMP. GEN. 260; DAY V. UNITED STATES, 245 U.S. 159.

ACCORDINGLY, FOR THE FOREGOING REASONS NO VALID BASIS APPEARS FOR INCREASING THE CONTRACT PRICE.