B-163873, JUN. 21, 1968

B-163873: Jun 21, 1968

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 25. THE AWARD WAS MADE TO YOU UNDER SOLICITATION NO. FIVE BIDS WERE RECEIVED AS FOLLOWS: COMPANY UNIT PRICE MINOR RUBBER CO. THE CONTRACTING OFFICER IS REQUIRED TO CONTACT THE BIDDER. ESPECIALLY WITH RESPECT TO THE TYPE OF RUBBER COMPOUND UPON WHICH THE PRICE WAS PREDICATED. AWARD WAS MADE TO YOU ON JANUARY 26. BECAUSE YOU WERE QUERIED AS TO THE RUBBER COMPOUND REQUIREMENT WHEN BID VERIFICATION WAS REQUESTED. AWARD WAS MADE TO YOU AT YOUR VERIFIED BID PRICE. YOU CONTEND THAT THE CONTRACTING OFFICER DID NOT ADVISE THAT "VITRON" WAS REQUIRED RATHER THAN "NEOPRENE" WHEN SHE REQUESTED VERIFICATION OF YOUR PRICE. GLEASON ATTESTING TO THE FACT THAT THE CONTRACTING OFFICER MADE NO MENTION OF THE REASON FOR BID VERIFICATION AND THAT NO MENTION WAS MADE OF "VITON" AS OPPOSED TO "NEOPRENE.'.

B-163873, JUN. 21, 1968

TO MINOR RUBBER COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 25, 1968, WITH ENCLOSURES, REQUESTING RELIEF ON ACCOUNT OF A MISTAKE IN BID ALLEGED AFTER AWARD OF CONTRACT NO. DSA-500-67-C-A143, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE INDUSTRIAL SUPPLY CENTER, PHILADELPHIA, PENNSYLVANIA. THE CONTRACT CALLED FOR A QUANTITY OF 126,200 RUBBER BUSHINGS AT A UNIT PRICE OF $0.05 EACH FOR A TOTAL PRICE OF $6,310. THE AWARD WAS MADE TO YOU UNDER SOLICITATION NO. DSA-500-67-B-3069, DATED NOVEMBER 22, 1966, AND OPENED DECEMBER 12, 1966.

FIVE BIDS WERE RECEIVED AS FOLLOWS:

COMPANY UNIT PRICE

MINOR RUBBER CO., INC. $0.05

STERLING LABORATORY AND DEVELOPMENT CO. $0.082

PACIFIC MOULDED PRODUCTS CO. $0.1924

ELECTRO-SONIC COMPONENTS, INC. $0.22

ALPHA RUBBER COMPANY, INC. $0.50

AFTER EVALUATING THE BIDS, THE CONTRACTING OFFICER SUSPECTED A MISTAKE IN YOUR BID. PURSUANT TO PARAGRAPH 2-406.3/E) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), THE CONTRACTING OFFICER IS REQUIRED TO CONTACT THE BIDDER, CALL ATTENTION TO THE SUSPECTED MISTAKE AND REQUEST A VERIFICATION OF THE BID. IN HER REQUEST FOR VERIFICATION OF DECEMBER 28, 1966, THE CONTRACTING OFFICER REQUESTED YOUR GOVERNMENT SALES MANAGER, MR. GLEASON, TO CHECK THE BID PRICE, ESPECIALLY WITH RESPECT TO THE TYPE OF RUBBER COMPOUND UPON WHICH THE PRICE WAS PREDICATED. IN THIS REGARD, THE CONTRACTING OFFICER ADVISES THAT SHE SPECIFICALLY MENTIONED "VITON" RUBBER AS OPPOSED TO ,NEOPRENE" RUBBER. BY LETTER OF JANUARY 4, 1967, MR. GLEASON MADE A BLANKET VERIFICATION OF YOUR BID AS FOLLOWS:

"THE QUOTED PRICE OF .05 EACH FOR 126,200 PCS-5340-598-5406 BUSHINGS, HAS BEEN CHECKED, AND HAS BEEN FOUND TO BE CORRECT.'

AWARD WAS MADE TO YOU ON JANUARY 26, 1967, AT YOUR BID PRICE. BY LETTERS OF MARCH 17 AND MAY 1, 1967, YOU ALLEGED THAT YOU HAD MADE A MISTAKE IN YOUR BID AND REQUESTED RELIEF THEREFROM. IN SUPPORT OF YOUR CLAIM OF ERROR, YOU FURNISHED YOUR BID WORKSHEETS. IT APPEARS THAT YOU HAD ERRONEOUSLY COMPUTED YOUR PRICES ON THE BASIS OF A "NEOPRENE" RUBBER COMPOUND AT $0.50 PER POUND RATHER THAN ON THE BASIS OF "VITON" RUBBER COMPOUND AT $8.50 PER POUND AS REQUIRED BY THE SPECIFICATIONS. THE CONTRACTING OFFICER DENIED YOUR CLAIM ON JULY 7, 1967, BECAUSE YOU WERE QUERIED AS TO THE RUBBER COMPOUND REQUIREMENT WHEN BID VERIFICATION WAS REQUESTED. ON THE BASIS OF MR. GLEASON'S UNEQUIVOCAL CONFIRMATION, AWARD WAS MADE TO YOU AT YOUR VERIFIED BID PRICE. IN YOUR LETTER OF MARCH 25, 1968, TO OUR OFFICE, YOU CONTEND THAT THE CONTRACTING OFFICER DID NOT ADVISE THAT "VITRON" WAS REQUIRED RATHER THAN "NEOPRENE" WHEN SHE REQUESTED VERIFICATION OF YOUR PRICE. IN SUPPORT THEREOF, YOU SUBMITTED A SWORN STATEMENT FROM MR. GLEASON ATTESTING TO THE FACT THAT THE CONTRACTING OFFICER MADE NO MENTION OF THE REASON FOR BID VERIFICATION AND THAT NO MENTION WAS MADE OF "VITON" AS OPPOSED TO "NEOPRENE.' YOU CITE UNITED STATES V. METRO NOVELTY MANUFACTURING CO., 125 F.SUPP. 713 IN SUPPORT OF YOUR REQUEST FOR RELIEF.

THE QUESTION PRESENTED IN THIS CASE IS WHETHER AN AWARD PURSUANT TO THE FACTS AS STATED ABOVE RESULTED IN A VALID AND BINDING CONTRACT. IN REGARD TO SITUATIONS OF THIS NATURE, IT IS WELL ESTABLISHED THAT THE RESPONSIBILITY FOR THE PREPARATION OF BIDS IS ON THE BIDDER WHO IS PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICES WHICH CAN BE CHARGED IN ORDER FOR A BIDDER TO REALIZE A REASONABLE PROFIT. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT. CL. 120, 163. ASPR 2-406.3 (E) (1) PLACED A DUTY ON THE CONTRACTING OFFICER TO VERIFY A BID IF THERE IS AN APPARENT MISTAKE IN THE BID OR IF THE CONTRACTING OFFICER HAS REASON TO BELIEVE THAT A MISTAKE HAS BEEN MADE. HOWEVER, IF THE BIDDER DOES VERIFY HIS BID AND AWARD IS MADE PURSUANT TO SUCH VERIFICATION ANY PRESUMPTION OF BAD FAITH ON THEPART OF THE CONTRACTING OFFICER IS PRECLUDED. SEE 27 COMP. GEN. 17. THE AFFIDAVIT OF THE CONTRACTING OFFICER RESPECTING BID VERIFICATION IS AS FOLLOWS:

"MRS. VIOLET TAFLAN, BEING DULY SWORN, DEPOSES AND SAYS:

"THAT SHE WAS THE PROCURING AGENT WITH RESPECT TO ADVERTISED SOLICITATION NO. DSA-500-67-B-3069 ISSUED BY THE DEFENSE INDUSTRIAL SUPPLY CENTER.

"THAT BY TELEPHONE ON 28 DECEMBER 1966 SHE ADVISED MR. GLEASON OF MINOR RUBBER COMPANY THAT SHE SUSPECTED THAT HE MIGHT HAVE MADE A MISTAKE IN HIS PRICE AND THAT SHE WOULD LIKE HIM TO CHECK TO SEE IF HE IS CONFORMING TO THE SPECIFICATION WHICH REQUIRES VITON RUBBER OR IF HE BID ON NEOPRENE RUBBER.

"THAT MR. GLEASON STATED THAT HE DID NOT KNOW WHAT TYPE OF RUBBER HE BID ON BUT THAT HE WOULD CHECK.

"THAT SHE ADVISED HIM THAT IF HE MADE A MISTAKE SHE WOULD WANT CLEAR AND CONVINCING EVIDENCE AS TO WHERE THE MISTAKE OCCURRED AND THAT SHE WOULD REQUIRE HIS WORKSHEETS IF HE WANTED TO WITHDRAW OR CORRECT HIS BID.

"THAT SHE ADVISED HIM FURTHER THAT IF HIS PRICE WAS CORRECT AND HE DID NOT MAKE A MISTAKE, THAT SHE WOULD LIKE TO HAVE A LETTER CONFIRMING THE PRICE.

"THAT BY LETTER DATED 5 JANUARY 1967 MR. GLEASON ADVISED THAT HE HAD CHECKED THE QUOTED PRICE AND THAT IT WAS CORRECT.

"THAT SHE THEREUPON PROCESSED THE OFFER OF MINOR RUBBER COMPANY FOR AWARD.'

UPON AN UNEQUIVOCAL VERIFICATION THE CONTRACTING OFFICER HAS A DUTY TO MAKE THE AWARD TO THE LOW AGGREGATE BIDDER AND AN AWARD MADE ON SUCH BASIS HAS BEEN HELD TO BE FULLY JUSTIFIED. SEE CARNEGIE STEEL CO. V. CONNELLY, 89 N.J.L. 1, 97 A. 774; SHRIMPTON MFG. CO. V. BRIN, 59 TEX. CIV. APP. 352, 125 S.W. 942; AND ALABAMA SHIRT AND TROUSER CO. V. UNITED STATES, 121 CT. CL. 313.

ALTHOUGH MR. GLEASON HAS DEPOSED THAT THE VERIFICATION REQUESTED BY MRS. TAFLAN WAS NOT IN FACT MADE, WE ARE REQUIRED TO ACCEPT THE STATEMENT MADE BY MRS. TAFLAN AS FACTUALLY CORRECT IN ACCORDANCE WITH OUR LONG- ESTABLISHED RULE THAT DISPUTED QUESTIONS OF FACT ARE TO BE RESOLVED IN FAVOR OF THE GOVERNMENT IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS THEREOF. SEE 16 COMP. GEN. 325; ID. 410.

WHILE THE ERROR AS ALLEGED MAY WELL HAVE OCCURRED IN THE PREPARATION OF YOUR BID, IN VIEW OF YOUR UNQUALIFIED VERIFICATION OF THE BID PRIOR TO AWARD, YOUR REQUEST FOR RELIEF MUST BE DENIED.