B-164768, JUL. 22, 1968

B-164768, JUL. 22, 1968

TO MR. HARRISON:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1968, WITH ENCLOSURES, CONCERNING THE REQUEST OF THE EVANGELICAL PRESS, HARRISBURG, PENNSYLVANIA, FOR RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN ITS BID FOR THE MANUFACTURE OF 5,000 COPIES OF A BOOK.

THE CLAIM OF ERROR, ALLEGED AFTER AWARD, RELATES TO JACKET 241-891, PURCHASE ORDER 50676, DATED JANUARY 20, 19678 FOR 5,000 BOOKS OF 180 PAGES AND COVER, TO BE PRINTED ON STOCK PAPER TO BE FURNISHED BY THE CONTRACTOR. THE INVITATION UPON WHICH THE CONTRACT IS BASED WAS ISSUED ON JANUARY 5, 1967, AND AMENDED BY TELEGRAM ON JANUARY 12, 1967, FOR AN INCREASE OF 2,000 BOOKS. THE BID OPENING WAS EXTENDED TO JANUARY 19, 1967, AND THE SHIPPING DATE WAS EXTENDED TO MARCH 15, 1967. AWARD WAS MADE TO THE EVANGELICAL PRESS ON JANUARY 20, 1967, IN THE AMOUNT OF $2,729. SIX OTHER QUOTATIONS WERE RECEIVED RANGING IN PRICE FROM $3,100 TO $3,654.

ON FEBRUARY 17, 1967, THE CONTRACTOR REQUESTED ADDITIONAL COMPENSATION IN THE AMOUNT OF $501.90 BECAUSE OF A MATHEMATICAL ERROR IN COMPUTING THE AMOUNT OF TEXT STOCK REQUIRED. IT STATED THAT INCLUDED IN ITS BID WAS AN AMOUNT OF $911.05 FOR 18,152 SHEETS OF STOCK INSTEAD OF $1,412.95 FOR THE CORRECT AMOUNT OF 28,125 SHEETS.

THE CONTRACTOR HAS FURNISHED A COPY OF THE ESTIMATE WHICH CONFIRMS THE MATHEMATICAL ERROR IN COMPUTING THE AMOUNT OF TEXT STOCK. THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT SINCE THERE WAS ONLY A DIFFERENCE OF $371 BETWEEN ITS BID AND THE NEXT LOW BID, RELIEF WOULD BE LIMITED TO THIS AMOUNT. AN APPEAL FOR REIMBURSEMENT IN THE AMOUNT OF $335.54 WAS THEN MADE BY THE CONTRACTOR, ON THE BASIS THAT THIS AMOUNT WILL PERMIT IT TO RECOVER ITS COSTS.

THE CONTRACTING OFFICER BELIEVES THAT A BONA FIDE ERROR WAS MADE BY THE BIDDER IN FAILING TO PROPERLY COMPUTE THE COST OF THE ADDITIONAL TEXT STOCK REQUIRED BY THE TELEGRAPHED AMENDMENT TO THE INVITATION WHICH INCREASED THE QUANTITY OF BOOKS FROM 3,000 TO 5,000.

WHILE IT IS ADMINISTRATIVELY RECOMMENDED THAT THE CLAIM BE ALLOWED AS FAIR AND REASONABLE COMPENSATION "FOR MATERIAL NOT COVERED IN THE COMPANY'S ORIGINAL QUOTATION," IT IS NOTED THAT ONLY ONE QUOTATION WAS MADE BY THE CONTRACTOR AND THAT FOLLOWED THE AMENDMENT WHICH INCREASED THE REQUIREMENT TO 5,000 BOOKS. NO BASIS IS SHOWN IN THE RECORD FOR THE REQUESTED RELIEF OTHER THAN ITS WORKSHEETS INDICATING THAT AN ERROR IN ADDITION WAS MADE BY THE CONTRACTOR IN COMPUTING ITS MATERIAL COSTS.

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE.

IN CASES WHERE A MISTAKE HAS BEEN ALLEGED AFTER AWARD OF THE CONTRACT, OUR OFFICE WILL GRANT RELIEF ONLY IF THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD. THE RECORD DOES NOT ESTABLISH THAT THERE WAS A MUTUAL MISTAKE IN THE AWARD OF THE CONTRACT. THE ERROR ALLEGED BY THE CONTRACTOR WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT, THE BID INVITATION DESCRIPTION BEING CLEAR AS TO THE WORK AND MATERIALS REQUIRED. THERE WAS NOTHING ON THE FACE OF THE BID OF THE CONTRACTOR TO INDICATE THAT THE PRICE WAS NOT AS INTENDED FOR THE ENTIRE QUANTITY OF 5,000 BOOKS. THE ITEM PRICE WAS A LUMP-SUM BID FOR LABOR AND MATERIALS AS TO WHICH THERE WAS NO DUTY ON THE CONTRACTING OFFICER TO VERIFY THE COSTS OF MATERIALS AND LABOR. YOUR OFFICE HAS INFORMALLY ADVISED US THAT THERE WAS NO REASON TO SUSPECT AN ERROR IN THE BID SINCE THE OTHER BIDS RANGED CLOSELY IN AMOUNT WITH THAT OF THE CONTRACTOR AND ALL BIDS WERE WITHIN A RANGE CONSIDERED REASONABLE BY THE GOVERNMENT. UNDER THESE CIRCUMSTANCES, SUCH AN ERROR AS ALLEGED DOES NOT ENTITLE THE CONTRACTOR TO RELIEF FROM ITS OBLIGATION TO PERFORM AT THE CONTRACT PRICE. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS OF THE PARTIES THERETO. SEE EDWIN DOUGHERTY AND M.H. OGDEN V UNITED STATES, 102 CT. CL. 249; SALIGMAN ET AL. V UNITED STATES, 56 F.SUPP. 505.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE CONTRACTOR. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT. CL. 120. WHILE IT MAY BE THAT AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE CONTRACTOR'S NEGLIGENCE OR OVERSIGHT.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INCREASING THE COMPENSATION PAYABLE UNDER THE CONTRACT. HENCE, THE VOUCHER IN THE AMOUNT OF $371 MAY NOT BE CERTIFIED FOR PAYMENT. THE SUBMITTED FILE IS RETURNED HEREWITH.