B-162121, AUG. 2, 1967

B-162121: Aug 2, 1967

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WHO AFTER ALWARD ALLEGED THROUGH OVERSIGHT THAT IT NEGLECTED TO LIMIT ITS BID TO A 5-DAY DELIVERY PLAN SO AS NOT TO CONFLICT WITH DELIVERY UNDER EXISTING CONTRACT MAY NOT HAVE CONTRACT REFORMED IN ABSENCE OF CONSIDERATION FOR SUCH AMENDMENT AND CONTRACTOR IS REQUIRED TO CONTINUE DELIVERIES ON 6 DAY BASIS. VETERANS ADMINISTRATION: THIS IS IN RESPONSE TO A LETTER DATED JULY 20. WE HAVE REVIEWED THE FILE OF THIS CASE AND THERE APPEARS TO BE NO IRREGULARITY IN THE CORPORATION'S BID. WHICH SHOULD HAVE ALERTED THE CONTRACTING OFFICER OF INTERSTATE'S ALLEGED MISTAKE PRIOR TO AWARD. THE RESPONSIBILITY FOR THE PREPARATION OF A BID RESTS UPON THE BIDDERS AND THE CONSEQUENCES OF A MISTAKE IN BID WHICH HAS BEEN ACCEPTED BY THE GOVERNMENT MUST BE BORNE BY THE BIDDER UNLESS THE MISTAKE WAS MUTUAL OR THE MISTAKE WAS KNOWN TO THE CONTRACTING OFFICER.

B-162121, AUG. 2, 1967

CONTRACTS - REFORMATION - JUSTIFICATION DECISION TO ADMINISTRATOR VETERANS ADMIN. RE REFORMATION OF CONTRACT OF INTERSTATE BAKERIES CORPORATION TO FURNISH QUANTITIES OF BREAD AND ROLLS ON 5-DAY DELIVERY BASIS RATHER THAN 6 DAY BASIS. CONTRACTOR, WHO AFTER ALWARD ALLEGED THROUGH OVERSIGHT THAT IT NEGLECTED TO LIMIT ITS BID TO A 5-DAY DELIVERY PLAN SO AS NOT TO CONFLICT WITH DELIVERY UNDER EXISTING CONTRACT MAY NOT HAVE CONTRACT REFORMED IN ABSENCE OF CONSIDERATION FOR SUCH AMENDMENT AND CONTRACTOR IS REQUIRED TO CONTINUE DELIVERIES ON 6 DAY BASIS.

TO THE HONORABLE W. J. DRIVER, ADMINISTRATOR, VETERANS ADMINISTRATION:

THIS IS IN RESPONSE TO A LETTER DATED JULY 20, 1967, YOUR REFERENCE 134G, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, FORWARDING, FOR OUR DECISION, THE REQUEST BY INTERSTATE BAKERIES CORPORATION TO AMEND CONTRACT NO. V6152P-799, FOR SUPPLYING THE GOVERNMENT WITH QUANTITIES OF BREAD AND ROLLS BY SUBSTITUTING A 5 DAY DELIVERY PLAN FOR THE REQUIRED 6-DAY SCHEDULE.

THE CONTRACTOR HAS ALLEGED AFTER AWARD THAT THROUGH OVERSIGHT IT NEGLECTED TO LIMIT ITS BID TO A 5-DAY DELIVERY PLAN. APPARENTLY THE 6 DAY SCHEDULE REQUIRED IN THE CONTRACT CONFLICTS WITH AN EXISTING CONTRACT BY THE CORPORATION AND ITS DELIVERY PERSONNEL WHICH REQUIRES A 5-DAY WORK WEEK.

WE HAVE REVIEWED THE FILE OF THIS CASE AND THERE APPEARS TO BE NO IRREGULARITY IN THE CORPORATION'S BID, OR ANY OTHER REASON, WHICH SHOULD HAVE ALERTED THE CONTRACTING OFFICER OF INTERSTATE'S ALLEGED MISTAKE PRIOR TO AWARD. NEITHER HAS THE CONTRACTOR ALLEGED THAT THE GOVERNMENT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF A MISTAKE PRIOR TO AWARD.

GENERALLY, THE RESPONSIBILITY FOR THE PREPARATION OF A BID RESTS UPON THE BIDDERS AND THE CONSEQUENCES OF A MISTAKE IN BID WHICH HAS BEEN ACCEPTED BY THE GOVERNMENT MUST BE BORNE BY THE BIDDER UNLESS THE MISTAKE WAS MUTUAL OR THE MISTAKE WAS KNOWN TO THE CONTRACTING OFFICER. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT. CLS. 120, 123; 31 COMP. GEN. 323; 23 ID. 596. FURTHERMORE, THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED IN THE ABSENCE OF ADEQUATE CONSIDERATION, AND IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY NO AGENT OF THE GOVERNMENT MAY WAIVE SUCH VESTED RIGHT BECAUSE OF HARDSHIPS OR EQUITIES IN FAVOR OF THE CONTRACTOR. 22 COMP. GEN. 260; DAY V. UNITED STATES, 245 U.S. 159. IN THE INSTANT CASE, SINCE ANY MISTAKE THAT WAS MADE WAS UNILATERAL, AND SINCE THE CONTRACTING OFFICER MAY NOT BE CHARGED WITH NOTICE OF THE PROBABILITY OF ERROR, ACCEPTANCE OF INTERSTATE'S BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT. CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505.

ACCORDINGLY, IN THE ABSENCE OF CONSIDERATION FOR SUCH AMENDMENT THERE APPEARS TO BE NO LEGAL BASIS FOR AMENDING THE CONTRACT'S DELIVERY TERMS. WE MUST THEREFORE AGREE WITH THE RECOMMENDATION OF THE CONTRACTING OFFICER AND THE DIRECTOR, SUPPLY SERVICE THAT THE CONTRACTOR BE REQUIRED TO CONTINUE WITH DELIVERIES ON A 6-DAY PER WEEK BASIS.