B-166152, APR. 22, 1969

B-166152: Apr 22, 1969

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8. REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF DEPARTMENT OF THE NAVY CONTRACT NO. THE GOVERNMENT ESTIMATE FOR THE COOKER WAS $2. YOUR BID AS TO ITEMS 1 AND 1AA AND OTHER ITEMS WAS ACCEPTED. FOR THE COOKER WAS THE LIST PRICE RATHER THAN THE NET PRICE FOR THAT ITEM. IN WHICH YOUR FIRM WAS QUOTED A NET PRICE OF $3. YOU ALSO SUBMITTED COPIES OF PREVIOUS QUOTATIONS RECEIVED FROM YOUR SUPPLIER WHICH INDICATE THAT YOUR FIRM WAS QUOTED LIST PRICES LESS DISCOUNTS OF 30 AND 5 PERCENT FOR THE ITEMS LISTED THEREIN. 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.

B-166152, APR. 22, 1969

TO JACOB LICHT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1969, 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 NAVY CONTRACT NO. N62578-69-C-0088, WITH THE NAVAL FACILITIES ENGINEERING COMMAND CONTRACTS, DAVISVILLE, RHODE ISLAND.

BY INVITATION FOR BIDS NO. N62578-69-B-0077, THE NAVAL FACILITIES ENGINEERING COMMAND REQUESTED BIDS FOR FURNISHING GALLEY EQUIPMENT FOR CAMP ALERT, ITEMS 1 THROUGH 46. IN RESPONSE, YOU SUBMITTED A BID OFFERING TO FURNISH, AMONG OTHER ITEMS, THE TYPE III, SIZE 2 COOKERS CALLED FOR UNDER ITEMS 1 AND 1AA AT A UNIT PRICE OF $2,273. THE FOUR OTHER BIDDERS ON ITEMS 1 AND 1AA QUOTED UNIT PRICES OF $2,766.92, $2,941, $2,980 AND $3,223. THE GOVERNMENT ESTIMATE FOR THE COOKER WAS $2,540. ON JANUARY 24, 1969, YOUR BID AS TO ITEMS 1 AND 1AA AND OTHER ITEMS WAS ACCEPTED.

IN A LETTER DATED FEBRUARY 8, 1969, ADDRESSED TO OUR OFFICE, YOU ADVISED THAT IN COMPUTING YOUR BID PRICE FOR THE COOKER COVERED BY ITEMS 1 AND 1AA YOUR ESTIMATOR ERRONEOUSLY ASSUMED THAT THE PRICE QUOTED BY YOUR SUPPLIER, MARKET FORGE COMPANY, FOR THE COOKER WAS THE LIST PRICE RATHER THAN THE NET PRICE FOR THAT ITEM. YOU STATED THAT YOUR SUPPLIER USUALLY QUOTES YOUR FIRM LIST PRICES LESS YOUR TRADE DISCOUNTS OF 30 AND 5 PERCENT. YOU REQUESTED THAT ITEMS 1 AND 1AA OF THE CONTRACT BE CANCELED WITHOUT LIABILITY TO YOUR FIRM, OR IN THE ALTERNATIVE, THE CONTRACT PRICE FOR THE COOKER BE INCREASED FROM $2,273 TO $3,394.65. IN SUPPORT OF YOUR ALLEGATION OF ERROR, YOU SUBMITTED COPIES OF YOUR WORKSHEETS AND A COPY OF THE QUOTATION DATED JANUARY 7, 1969, RECEIVED FROM YOUR SUPPLIER, IN WHICH YOUR FIRM WAS QUOTED A NET PRICE OF $3,183 EACH FOR THE COOKER COVERED BY ITEMS 1 AND 1AA. YOU ALSO SUBMITTED COPIES OF PREVIOUS QUOTATIONS RECEIVED FROM YOUR SUPPLIER WHICH INDICATE THAT YOUR FIRM WAS QUOTED LIST PRICES LESS DISCOUNTS OF 30 AND 5 PERCENT FOR THE ITEMS LISTED THEREIN.

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. 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 ITEMS 1 AND 1AA AT THE CONTRACT PRICES OR FOR INCREASING THE CONSIDERATION UNDER THE CONTRACT.