B-164439, AUG. 26, 1968

B-164439: Aug 26, 1968

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 24. REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF DEPARTMENT OF THE ARMY CONTRACT NO. YOUR BID AS TO ITEM 1 WAS ACCEPTED. YOU ADVISED THAT IN COMPUTING YOUR BID PRICE FOR ITEM 1 YOU INADVERTENTLY INCLUDED A MARGIN OF 1 PERCENT RATHER THAN 10 PERCENT FOR PROFIT AND THAT YOUR INTENDED BID PRICE FOR ITEM 1 WAS $2. YOU STATED THAT TO PERFORM THE CONTRACT AT YOUR ORIGINAL BID PRICE WILL MEAN A LOSS TO YOUR COMPANY. THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. WE CANNOT SAY THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN YOUR BID.

B-164439, AUG. 26, 1968

TO STICKLEY-SIVER, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 24, 1968, WITH ENCLOSURES, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF DEPARTMENT OF THE ARMY CONTRACT NO. DAAG38-68-C0258, WITH THE PURCHASING AND CONTRACTING DIVISION, TOBYHANNA ARMY DEPOT, TOBYHANNA, PENNSYLVANIA.

BY SOLICITATION NO. DAAG38-68-B-0117 THE TOBYHANNA ARMY DEPOT REQUESTED BIDS FOR FURNISHING ONE PROCESSOR, GAS BURST, LEEDAL MODEL NBW SERIES OR EQUAL, ITEM 1. IN RESPONSE YOU SUBMITTED A BID OFFERING TO FURNISH THE PROCESSOR AT A PRICE OF $2,693. THE THREE OTHER BIDDERS ON ITEM 1 QUOTED PRICES OF $2,842, $2,859 AND $3,212. ON APRIL 23, 1968, YOUR BID AS TO ITEM 1 WAS ACCEPTED.

BY LETTER OF APRIL 29, 1968, YOU ADVISED OF AN ERROR IN YOUR BID PRICE FOR THE LEEDAL GAS BURST PROCESSOR COVERED BY ITEM 1. YOU REQUESTED THAT YOU BE PERMITTED TO WITHDRAW YOUR BID ON THAT ITEM. ON APRIL 30, 1968, THE CONTRACTING OFFICER REQUESTED YOUR FIRM TO SUBMIT EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ERROR.

IN A LETTER DATED MAY 1, 1968, YOU ADVISED THAT IN COMPUTING YOUR BID PRICE FOR ITEM 1 YOU INADVERTENTLY INCLUDED A MARGIN OF 1 PERCENT RATHER THAN 10 PERCENT FOR PROFIT AND THAT YOUR INTENDED BID PRICE FOR ITEM 1 WAS $2,925 INSTEAD OF $2,693. YOU STATED THAT TO PERFORM THE CONTRACT AT YOUR ORIGINAL BID PRICE WILL MEAN A LOSS TO YOUR COMPANY. IN SUPPORT OF YOUR ALLEGATION OF ERROR, YOU SUBMITTED A COPY OF THE QUOTATION RECEIVED FROM YOUR SUPPLIER, LEEDAL, INCORPORATED.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. AT THE TIME OF ACCEPTANCE, THE CONTRACTING OFFICER HAD RECEIVED NO NOTICE OR CLAIM OF ERROR AND, IN VIEW OF THE CLOSE RANGE IN THE PRICES RECEIVED, WE CANNOT SAY THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN YOUR BID. ALTHOUGH, AFTER AWARD, YOU FURNISHED EVIDENCE TENDING TO SUPPORT YOUR ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT PRIOR TO AWARD THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE DIFFERENT FACTORS USED BY YOU IN COMPUTING YOUR BID PRICE. THE ACCEPTANCE OF YOUR BID, IN THESE CIRCUMSTANCES, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU AS THE BIDDER. FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT. CL. 120, 163. WHILE IT MAY BE THAT AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO YOUR OWN OVERSIGHT OR NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - - NOT MUTUAL -- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT. CL. 249; SALIGMAN ET AL. V UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 652 AND 26 ID. 415.

ACCORDINGLY, NO LEGAL BASIS EXISTS FOR RELIEVING YOU FROM YOUR OBLIGATION TO FURNISH ITEM 1 AT THE CONTRACT PRICE OR FOR INCREASING THE CONSIDERATION UNDER THE CONTRACT.