B-165744, DEC. 19, 1968

B-165744: Dec 19, 1968

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HARRISON: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 26. REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY THE MARAN PLASTIC COMPANY TO HAVE BEEN MADE IN ITS BID UPON WHICH PURCHASE ORDER NO. 45997 IS BASED. THE BID OF THE COMPANY WAS ACCEPTED ON AUGUST 20. IT IS STATED THAT ON AUGUST 22. A REPRESENTATIVE OF THE MARAN PLASTIC COMPANY TELEPHONED THE CONTRACTING OFFICER ALLEGING THAT THE COMPANY'S SUPPLIER OF THE PLASTIC QUOTED AN INCORRECT PRICE FOR THE RAW MATERIAL WHICH WAS REFLECTED IN THE COMPANY'S BID PRICE. IT WAS ADVISED THAT AN INCORRECT PRICE FOR THE PLASTIC WAS QUOTED AND THAT THE CORRECT PRICE FOR THE PLASTIC WAS $108.56 PER HUNDRED OR A TOTAL PRICE OF $1.

B-165744, DEC. 19, 1968

TO MR. HARRISON:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 26, 1968, WITH ENCLOSURES, FROM YOUR COMPTROLLER, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY THE MARAN PLASTIC COMPANY TO HAVE BEEN MADE IN ITS BID UPON WHICH PURCHASE ORDER NO. 45997 IS BASED.

THE GOVERNMENT PRINTING OFFICE UNDER JACKET NO. 315-868 REQUESTED BIDS FOR THE PRINTING OF 1,000 COPIES OF A PUBLICATION ENTITLED "STATUS OF DEVELOPMENT OF THE NATIONAL SYSTEM OF INTERSTATE AND DEFENSE HIGHWAYS.' IN RESPONSE, THE MARAN PLASTIC COMPANY SUBMITTED THE ONLY BID ON AUGUST 17, 1968, WHEREIN IT OFFERED TO FURNISH 1,000 COPIES OF THE REQUIRED PUBLICATION FOR THE LUMP SUM OF $784. THE BID OF THE COMPANY WAS ACCEPTED ON AUGUST 20, 1968.

IT IS STATED THAT ON AUGUST 22, 1968, A REPRESENTATIVE OF THE MARAN PLASTIC COMPANY TELEPHONED THE CONTRACTING OFFICER ALLEGING THAT THE COMPANY'S SUPPLIER OF THE PLASTIC QUOTED AN INCORRECT PRICE FOR THE RAW MATERIAL WHICH WAS REFLECTED IN THE COMPANY'S BID PRICE. HOWEVER, THE COMPANY AGREED TO PROCEED WITH THE PRODUCTION OF THE PUBLICATION SINCE THE PURCHASE ORDER AND MATERIAL HAD BEEN RECEIVED BY IT.

IN A CONFIRMING LETTER DATED AUGUST 26, 1968, THE MARAN PLASTIC COMPANY STATED THAT PRIOR TO THE SUBMISSION OF ITS BID, ITS SUPPLIER, TRANSILWRAP COMPANY OF PHILADELPHIA, INC., QUOTED A PRICE OF $48.30 PER HUNDRED OR A TOTAL PRICE OF $531.30 FOR THE 1,100 SHEETS OF MYLAR PLASTIC REQUIRED FOR THE PRODUCTION OF THE PUBLICATION. HOWEVER, WHEN THE CONTRACTOR PLACED AN ORDER FOR THE PLASTIC WITH ITS SUPPLIER, IT WAS ADVISED THAT AN INCORRECT PRICE FOR THE PLASTIC WAS QUOTED AND THAT THE CORRECT PRICE FOR THE PLASTIC WAS $108.56 PER HUNDRED OR A TOTAL PRICE OF $1,194 FOR THE ENTIRE LOT OF 1,100 SHEETS. THE COMPANY REQUESTED THAT THE CONTRACT PRICE FOR THE PUBLICATION BE INCREASED FROM $784 TO $1,558.20. IN SUPPORT OF THE ALLEGATION OF ERROR, THE COMPANY SUBMITTED ITS ORIGINAL ESTIMATE SHEET AND A REVISED ESTIMATE SHEET. ALSO, THE COMPANY SUBMITTED COPIES OF LETTER QUOTATIONS DATED AUGUST 15 AND 22, 1968, RECEIVED FROM ITS SUPPLIER, TRANSILWRAP COMPANY OF PHILADELPHIA, INC. IN ITS SUPPLIER'S ORIGINAL QUOTATION DATED AUGUST 15, 1968, THE MARAN PLASTIC COMPANY WAS QUOTED A PRICE OF $48.30 PER HUNDRED SHEETS IN 1,100 SHEET QUANTITY FOR TRANSLUCENT MYLAR WITH MATTE FINISH ONE SIDE. IN THE REVISED QUOTATION DATED AUGUST 22, 1968, MARAN WAS QUOTED A PRICE OF $108.56 PER HUNDRED SHEETS IN A 1,100 QUANTITY FOR THE MYLAR PLASTIC.

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. IN FACT, IT IS NOT SHOWN THAT THERE WAS A MISTAKE, AS SUCH, IN THE BID, THE BID AND THE ACCEPTANCE THEREOF BEING AS INTENDED BY THE CONTRACTING PARTIES. THE ERROR ALLEGED BY THE SUPPLIER WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT -- THE BID INVITATION DESCRIPTION BEING CLEAR AS TO THE TYPE OF PLASTIC TO BE USED IN THE PRODUCTION OF THE PUBLICATION. THERE WAS NOTHING ON THE FACE OF THE BID OF THE CONTRACTOR TO INDICATE THAT THE PRICE WAS NOT AS INTENDED. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN THE COMPANY'S BID AND THAT WHILE THE COMPANY'S BID PRICE WAS LOWER THAN THE PRICE PREVIOUSLY QUOTED BY IT IN RESPONSE TO A PRIOR INVITATION, HE ASSUMED THAT THE COMPANY HAD ELIMINATED CERTAIN PRELIMINARY OPERATIONS IN THE SECOND PROCUREMENT WHICH WOULD BE REFLECTED IN ITS BID PRICE FOR THE SUBJECT PROCUREMENT. ALSO, SINCE THE BID OF THE COMPANY WAS THE ONLY BID RECEIVED, THE USUAL BID COMPARISON BASIS WAS NOT AVAILABLE TO THE CONTRACTING OFFICER SO AS TO INDICATE THE PROBABILITY OF AN ERROR IN THE BID. UNDER THESE CIRCUMSTANCES, SUCH AN ERROR AS ALLEGED DOES NOT ENTITLE THE CONTRACTOR TO RELIEF FROM ITS OBLIGATION TO PERFORM AT THE CONTRACT PRICE. RATHER, THE CONTRACTOR MUST ASSUME THE CONSEQUENCES OF THE ERROR OR LOOK TO ITS SUPPLIER FOR PRICE ADJUSTMENT. SEE 18 COMP. GEN. 28; 31 ID. 479; 38 ID. 517. 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 AND LIABILITIES OF THE PARTIES THERETO. SEE EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT. CL. 249, 259 AND SALIGMAN ET AL. V UNITED STATES, 56 F.SUPP. 505, 507.

MOREOVER, THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE THERETO IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT. CL. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE COMPANY'S NEGLIGENCE OR OVERSIGHT AND SINCE THE ERROR IN THIS CASE WAS UNILATERAL -- NOT MUTUAL -- THE COMPANY IS NOT ENTITLED TO RELIEF. SEE 40 COMP. GEN. 326, 332.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR PAYMENT OF ANY ADDITIONAL AMOUNT TO THE COMPANY UNDER THE CONTRACT INVOLVED. THE COMPANY'S BID AND THE COPY OF PAID VOUCHER NO. 743 ARE RETURNED.