B-164042, JUN. 28, 1968

B-164042: Jun 28, 1968

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INC.: THIS IS IN REPLY TO YOUR LETTER OF APRIL 11. YOU CONTEND THAT YOUR BID WAS NOT COMPUTED ON THE BASIS OF THE PACKING REQUIREMENTS STATED IN THE APPLICABLE SPECIFICATIONS. WHILE "LEVEL C" PACKING IN WIRE-BOUND WOOD BOXES WAS REQUIRED BY THE SPECIFICATIONS. YOU ALLEGE THIS REQUIREMENT WAS "AMBIGUOUS" BECAUSE PACKING IN WOOD BOXES IS GENERALLY CONSIDERED AS "LEVEL A" OR "LEVEL B" AND. YOU BELIEVE THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF A MISTAKE IN YOUR BID PRICE OF ?999 EACH SINCE THE NEXT TWO HIGHER BIDS WERE .86 AND $2.00 EACH. SUPPLEMENTAL AGREEMENT WAS EXECUTED ON JANUARY 10. THE RECORD INDICATES THAT THE CONTRACT ITEMS WERE SHIPPED ON FEBRUARY 12. FINAL PAYMENT WAS MADE TO YOU ON FEBRUARY 25.

B-164042, JUN. 28, 1968

TO WHITE PLAINS ELECTRICAL SUPPLY CO., INC.:

THIS IS IN REPLY TO YOUR LETTER OF APRIL 11, 1968, REQUESTING PAYMENT OF $529.88, AS ADDITIONAL COMPENSATION FOR PERFORMANCE RENDERED UNDER DEFENSE SUPPLY AGENCY CONTRACT NUMBER DSA-400-68-C 1059, FOR A QUANTITY OF BRIDLE RINGS BECAUSE OF AN ALLEGED MISTAKE IN BID.

YOU CONTEND THAT YOUR BID WAS NOT COMPUTED ON THE BASIS OF THE PACKING REQUIREMENTS STATED IN THE APPLICABLE SPECIFICATIONS. WHILE "LEVEL C" PACKING IN WIRE-BOUND WOOD BOXES WAS REQUIRED BY THE SPECIFICATIONS, YOU ALLEGE THIS REQUIREMENT WAS "AMBIGUOUS" BECAUSE PACKING IN WOOD BOXES IS GENERALLY CONSIDERED AS "LEVEL A" OR "LEVEL B" AND, BECAUSE PRIOR PROCUREMENTS FOR THIS ITEM SPECIFIED "LEVEL C" PACKING IN CARTONS. FURTHER, YOU BELIEVE THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF A MISTAKE IN YOUR BID PRICE OF ?999 EACH SINCE THE NEXT TWO HIGHER BIDS WERE .86 AND $2.00 EACH.

BY LETTER OF NOVEMBER 3, 1967, YOUR FIRM REQUESTED A MODIFICATION OF THE CONTRACT'S PACKING REQUIREMENTS AND YOU PROPOSED ANY OF THREE ALTERNATIVE PACKING METHODS IN CONSIDERATION OF A REDUCTION IN THE CONTRACT PRICE. SUPPLEMENTAL AGREEMENT WAS EXECUTED ON JANUARY 10, 1968, WHICH ALTERED THE PACKING REQUIREMENTS AND REDUCED THE CONTRACT PRICE BY $250. THE RECORD INDICATES THAT THE CONTRACT ITEMS WERE SHIPPED ON FEBRUARY 12, 1968, AND FINAL PAYMENT WAS MADE TO YOU ON FEBRUARY 25, 1968.

AS A GENERAL RULE, WHEN A UNILATERAL ERROR IS ALLEGED AFTER AWARD, THE CONTRACT IS NOT SUBJECT TO REFORMATION SINCE A BINDING AND ENFORCEABLE CONTRACT ARISES UPON ACCEPTANCE. SALIGMAN V UNITED STATES, 56 F. SUPP. 505, AND CASES CITED THEREIN. IN THE ABSENCE OF FRAUD, MISTAKE, DURESS, AND THE LIKE, ONE WHO MERELY PERFORMS HIS CONTRACT CAN RECOVER MERELY THE CONTRACT PRICE. BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V O. D. WILSON COMPANY, INC., 133 F.2D 399. HOWEVER, THE COURTS AND THIS OFFICE HAVE AFFORDED APPROPRIATE RELIEF WHERE IT IS DETERMINED THAT A BINDING CONTRACT HAS NOT ARISEN BECAUSE THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR PRIOR TO AWARD AND HE FAILED TO FULFILL HIS RESPONSIBILITY WITH RESPECT TO OBTAINING A VERIFICATION OF THE BID. 37 COMP. GEN. 685, 17 ID. 575.

IN THE PRESENT CASE WE SEE NO BASIS FOR RELIEF SINCE, EVEN IF THE ORIGINAL CONTRACT IS DEEMED INVALID, WE BELIEVE THE CONTRACT MODIFICATION RELATIVE TO THE PACKAGING REQUIREMENTS EXECUTED BY BOTH PARTIES WITH FULL UNDERSTANDING OF THE SITUATION AFFIRMED THE AGREEMENT AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY NO AGENT OF THE GOVERNMENT MAY WAIVE A VESTED RIGHT OF THE GOVERNMENT BECAUSE OF HARDSHIPS OR EQUITIES IN FAVOR OF THE CONTRACTOR. DAY V UNITED STATES, 245 U.S. 159; 22 COMP. GEN. 260.

FOR THE REASONS STATED WE MUST DENY YOUR CLAIM FOR ADDITIONAL COMPENSATION UNDER THE CONTRACT.