B-168306, DEC. 23, 1969

B-168306: Dec 23, 1969

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RELIEF DENIED CONTRACTOR WHO CONFIRMED BID PRICE UPON REQUEST OF CONTRACTING OFFICER PRIOR TO AWARD BUT SUBSEQUENTLY ALLEGED ERROR IN SHEET METAL COST AND CLAIMED INSUFFICIENT TIME ALLOWED FOR CONFIRMATION OF BID PRICE IS NOT ENTITLED TO RELIEF SINCE BIDDER'S PROMPT VERIFICATION JUSTIFIED GOVERNMENT IN ASSUMING FIGURES HAD ALREADY BEEN CHECKED AND BIDDER WAS CONFIRMING RECALCULATION. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 10. REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF CONTRACT NO. THE BID OPENING DATE AS EXTENDED WAS JUNE 16. THE CONTRACTING OFFICER NOTED THAT THERE WAS A PRICE DISPARITY BETWEEN YOUR UNIT BID OF $1.

B-168306, DEC. 23, 1969

MISTAKES--ALLEGATION AFTER AWARD--VERIFICATION PRIOR TO ALLEGATION OF ERROR--RELIEF DENIED CONTRACTOR WHO CONFIRMED BID PRICE UPON REQUEST OF CONTRACTING OFFICER PRIOR TO AWARD BUT SUBSEQUENTLY ALLEGED ERROR IN SHEET METAL COST AND CLAIMED INSUFFICIENT TIME ALLOWED FOR CONFIRMATION OF BID PRICE IS NOT ENTITLED TO RELIEF SINCE BIDDER'S PROMPT VERIFICATION JUSTIFIED GOVERNMENT IN ASSUMING FIGURES HAD ALREADY BEEN CHECKED AND BIDDER WAS CONFIRMING RECALCULATION. SINCE PREPARATION OF BID RESTS UPON BIDDER AND ACCEPTANCE OF BID AFTER OPPORTUNITY HAD BEEN AFFORDED TO VERIFY PRICES, AWARD BEING MADE IN GOOD FAITH, CONSUMMATED VALID AND BINDING CONTRACT, GOVT. HAS VESTED RIGHT TO RECEIVE PERFORMANCE IN ACCORDANCE WITH ITS TERMS, WHICH RIGHT CANNOT BE SURRENDERED BY ANY GOVT. OFFICER WITHOUT ADEQUATE CONSIDERATION.

TO ELECTRO IMPULSE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 10, 1969, WITH ENCLOSURE, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF CONTRACT NO. DAAK01 69-C-A643 (C2).

BY INVITATION FOR BIDS NO. DAAK01-69-B-6870 DATED APRIL 2, 1969, THE U.S. ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI, REQUESTED BIDS FOR 706 FSN 4120-266-9074 AIR CONDITIONERS, AND ANCILLARY ITEMS, F.O.B. ORIGIN, CONFORMING TO MIL-A-11210E, AUGUST 18, 1966, DRAWING D13164-1 THROUGH 48. THE BID OPENING DATE AS EXTENDED WAS JUNE 16, 1969.

IN EVALUATING THE BIDS, THE CONTRACTING OFFICER NOTED THAT THERE WAS A PRICE DISPARITY BETWEEN YOUR UNIT BID OF $1,100 AND THAT OF THE SECOND LOW BIDDER ($1,292) OF $192 OR APPROXIMATELY 14.8 PERCENT, AND A GREATER DISPARITY BETWEEN THE LOW BID AND THE PREVIOUS PRICE FOR A SMALLER QUANTITY (112 UNITS) OF $353.75 OR A DIFFERENCE OF ABOUT 24 PERCENT. SATURDAY, JUNE 28, 1969, A PHONE CALL WAS MADE TO YOUR COMPANY AND YOUR MR. MARK RUBIN WAS ADVISED THAT THE ABOVE DISPARITY OF APPROXIMATELY 14.8 PERCENT BETWEEN YOUR LOW BID AND THE NEXT LOWEST BID HAD GIVEN THE CONTRACTING OFFICER REASON TO BELIEVE THAT A MISTAKE HAD BEEN MADE AND THAT THE CONTRACTING OFFICE WAS REQUESTING VERIFICATION OF YOUR BID. IS REPORTED THAT MR. RUBIN PROMPTLY STATED THAT NO MISTAKE HAD BEEN MADE.

TO BE ASSURED THAT YOUR COMPANY WAS NOT UNINTENTIONALLY ENTERING INTO A CONTRACT AT AN UNREALISTIC PRICE, THE PROCURING OFFICE COUNSEL THEN SPEAKING TO MR. RUBIN REQUESTED HIM TO INCLUDE A STATEMENT IN HIS WRITTEN VERIFICATION TO SHOW THAT YOUR FIRM WAS AWARE OF THE DISPARITY. HE AGREED TO DO SO. IT WAS REQUESTED THAT SUCH VERIFICATION BE FURNISHED AS SOON AS POSSIBLE IN ORDER THAT THE CONTRACTING OFFICE MIGHT TAKE TIMELY ACTION PRIOR TO THE END OF THE FISCAL YEAR ON MONDAY, JUNE 30, 1969. BY TELEGRAM DATED JUNE 28 YOU ADVISED THE PROCUREMENT ACTIVITY AS FOLLOWS: "THIS IS TO CONFIRM OUR TELECON OF 28 JUNE 1969 AM. ELECTRO IMPULSE, INC. CONFIRMS THAT ITS PRICE AS ORIGINALLY QUOTED IS FIRM NOT WITHSTANDING THE FACT THAT UPON EXAMINATION ABSTRACT OF COMPETITIVE BIDDING IT WAS NOTED THAT A LARGE DISPARITY EXISTED BETWEEN ELECTRO IMPULSE, INC. AND THE NEXT LOW BIDDER.'

BASED ON A FAVORABLE PREAWARD SURVEY, THE CONTRACTING OFFICE DETERMINED THAT YOUR FIRM WAS RESPONSIBLE AND AWARDED YOU THE CONTRACT ON JUNE 30, 1969. A POST AWARD AND PROVISIONING PLANNING CONFERENCE WAS HELD AT YOUR FACILITY IN RED BANK, NEW JERSEY, FROM JULY 30 THROUGH AUGUST 1, 1969. YOUR REPRESENTATIVES AT THOSE MEETINGS EXPRESSED CONFIDENCE THAT YOUR COMPANY WOULD MEET THE CONTRACTED REQUIREMENTS AND HOPED THE GOVERNMENT WOULD SOON EXERCISE ITS OPTION FOR ADDITIONAL QUANTITIES.

BY LETTER AND WIRE OF AUGUST 5, 1969, YOU REPORTED TO THE CONTRACTING OFFICE THAT YOUR FIRM HAD MADE A "GROSS ERROR" AND REQUESTED A MEETING TO DISCUSS IT. ON AUGUST 14, 1969, A MEETING WAS HELD WITH YOUR REPRESENTATIVES IN WHICH YOU ALLEGED THAT AN ERROR HAD BEEN MADE IN COMPUTING YOUR BID WHICH WOULD RESULT IN AN APPROXIMATE LOSS OF $275,000. ON AUGUST 15, 1969, THE 60-DAY PERIOD FOR BID PRICES TO REMAIN IN EFFECT EXPIRED. BY LETTER OF AUGUST 16, 1969, YOU REQUESTED RESCISSION OR ANY OTHER APPROPRIATE REMEDY BECAUSE OF THE ALLEGED PRICING ERROR. THE LETTER STATED THAT THE ERROR RESULTED FROM AN ADDING MACHINE ENTRY TRANSPOSING THE $393 COST OF SHEET METAL TO A $3.93 FIGURE. THUS, IT IS CONTENDED THAT THE ACTUAL COST OF SHEET METAL PER UNIT WAS $389.07 MORE THAN HAD BEEN INCORPORATED INTO YOUR UNIT BID PRICE. HAD YOUR ORIGINAL BID INCLUDED AN ADDITIONAL $389.07 FOR A UNIT BID PRICE OF $1,489.07, IT WOULD NOT HAVE BEEN THE LOWEST BID RECEIVED BUT THE FIFTH LOWEST BID.

THE ADMINISTRATIVE OFFICE DETERMINED THAT THE ERROR ALLEGED AFTER AWARD WAS UNILATERAL AND NOT MUTUAL, AND THAT, THEREFORE, NO RELIEF COULD BE AFFORDED TO YOUR FIRM IN THE CIRCUMSTANCES. YOUR REQUEST FOR RESCISSION OR ANY OTHER APPROPRIATE REMEDY WAS REFERRED TO OUR OFFICE BY HEADQUARTERS U.S. ARMY MATERIEL COMMAND ON NOVEMBER 3, 1969, WITH AN ADMINISTRATIVE REPORT THEREON. YOUR REPRESENTATIVE REQUESTED A MEETING TO DISCUSS THE MATTER BEFORE OUR OFFICE AND WAS GIVEN, UPON HIS REQUEST, A COPY OF THE ADMINISTRATIVE REPORT AT THAT MEETING. FOLLOWING THIS, YOUR LETTER OF NOVEMBER 10, 1969, WAS RECEIVED IN WHICH YOU SET FORTH, FOR THE FIRST TIME, YOUR CONTENTION THAT THE CONFIRMATION OF YOUR BID PRICE ON JUNE 28, 1969, IN EFFECT, WAS SOUGHT AND GIVEN UNDER SUCH CONDITIONS OF HASTE AND DURESS AS TO RENDER IT IMPROPER FOR CONSIDERATION BY THE CONTRACTING OFFICER IN MAKING THE AWARD TO YOUR FIRM. YOUR LETTER STRESSES THAT THE VERIFICATION WAS SOUGHT ON SATURDAY MORNING, JUNE 28, 1969, AND THAT THE REPRESENTATIVE OF THE PROCUREMENT ACTIVITY INSISTED UPON VERIFICATION THAT VERY SAME DAY BECAUSE THE FISCAL YEAR WOULD END ON MONDAY, JUNE 30, 1969, AND DUE TO THE DESIRE TO MAKE AN AWARD BEFORE THE CLOSE OF BUSINESS ON MONDAY. YOU STATE FURTHER THAT VERIFICATION OF A BID TRANSCENDS MERELY ADDING UP COSTS, AND THAT WITH OVER 242 PURCHASED ITEMS INVOLVED, VERIFICATION DEMANDS THAT AT LEAST THE MAJOR ITEMS BE REQUOTED WHICH NOT ONLY WOULD HAVE BEEN DIFFICULT TO DO IN ONE DAY BUT IMPOSSIBLE ON A SATURDAY. YOU CONTEND FURTHER: "3. KECO INDUSTRIES INC. HAD A PREVIOUS CONTRACT FOR 112 OF THESE UNITS AT A PRICE OF $1453.75. ON THIS PROCUREMENT FOR 709 UNITS, THEY BID OVER $1570 EACH. FURTHER, IT IS OUR UNDERSTANDING THAT KECO INDUSTRIES INC. HAS BEEN TRYING TO GET MORE MONEY ON THE ORIGINAL CONTRACT. IN LIGHT OF THIS SITUATION, THE 14.8 PERCENT DIFFERENCE BETWEEN ELECTRO IMPULSE INC.'S PRICE AND THE NEXT HIGHEST BIDDER IS NOT AS SIGNIFICANT AS THE KECO INDUSTRIES INC. HISTORY. FOR THE CONTRACTING OFFICER TO CALL ON A SATURDAY, INSIST ON AND GET VERIFICATION WITHIN ONE HOUR AFTER HIS CALL WHILE HE WAS AWARE OF THE KECO INDUSTRIES INC. HISTORY WAS AN ACTION THAT PARTIALLY COMPLIED WITH THE FORM BUT COMPLETELY IGNORED THE INTENT AND SPIRIT OF THE REGULATIONS.'4. THE ASPR REGULATION 2-406.3 (E) (1) CLEARLY STATES THAT -IN THE CASE OF ANY SUSPECTED MISTAKE IN BID, THE CONTRACTING OFFICER WILL IMMEDIATELY CONTACT THE BIDDER IN QUESTION CALLING ATTENTION TO THE SUSPECTED MISTAKE, AND REQUEST VERIFICATION OF HIS BID. THE ACTION TAKEN TO VERIFY BIDS MUST BE SUFFICIENT TO EITHER REASONABLY ASSURE THE CONTRACTING OFFICER THAT THE BID AS CONFIRMED IS WITHOUT ERROR OR ELICIT THE ANTICIPATED ALLEGATION OF A MISTAKE BY THE BIDDER.-"

YOU MAINTAIN THEREFORE THAT THE VERIFICATION REQUESTED DID NOT MEET THE CRITERIA OF PARAGRAPH 2-406.3 (E) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) REFERRED TO ABOVE.

WE ARE ADVISED BY THE PROCUREMENT ACTIVITY IN REPORTING ON YOUR NOVEMBER 10 LETTER THAT THERE WAS NO INTENTION, AS YOU IMPLY, ON THE GOVERNMENT'S PART TO DELAY BID VERIFICATION UNTIL THE LAST POSSIBLE MOMENT SO AS TO FORCE YOUR FIRM INTO A CONTRACT AT AN UNREALISTIC PRICE. BEFORE BID VERIFICATION COULD BE UNDERTAKEN BY THE PROCUREMENT ACTIVITY, MANY INTERNAL PRELIMINARY ACTIONS WERE REQUIRED TO BE TAKEN BY THE PROCUREMENT ACTIVITY. THE FIRST CONSISTED OF A REQUEST ON JUNE 17, 1969, TO THE DEFENSE CONTRACT ADMINISTRATION SERVICES DISTRICT FOR PREAWARD SURVEYS TO BE CONDUCTED ON THE THREE LOWEST BIDDERS. THEN GOVERNMENT TRANSPORTATION PERSONNEL WERE REQUESTED TO FURNISH A TRANSPORTATION EVALUATION ON JUNE 23, 1969. ON JUNE 25, 1969, THE BIDS WERE REFERRED TO THE OFFICE OF THE CHIEF COUNSEL FOR LEGAL REVIEW. FINALLY, ON JUNE 26, 1969, THE FAVORABLE PREAWARD SURVEY ON YOUR FIRM WAS FORWARDED TO THE CONTRACTING OFFICER. THEREFORE CONCLUDE THAT THESE NECESSARY ACTIONS PRELIMINARY TO AWARD DID NOT CONSTITUTE DELIBERATE DELAYS TO YOUR DISADVANTAGE.

STATEMENTS BY THE CONTRACT SPECIALIST, PROCUREMENT COUNSEL, AND THE CONTRACTING OFFICER REFUTE MR. RUBIN'S AFFIDAVIT, PREPARED ON NOVEMBER 7, 1969, WHICH GAVE HIS VERSION OF THE JUNE 28, 1969, TELEPHONE CONVERSATION BETWEEN THE GOVERNMENT AND MR. RUBIN RESPECTING BID VERIFICATION. INDICATED IN THOSE STATEMENTS, THERE WAS NO ATTEMPT MADE BY THE GOVERNMENT TO PRESSURE YOUR COMPANY INTO VERIFICATION OF ITS BID WITHOUT RECALCULATING ITS FIGURES OR OTHERWISE CHECKING FOR POSSIBLE ERROR. THE CONTRARY, IT WAS YOUR REPRESENTATIVE'S OWN DECISION, MADE WITHOUT DURESS, TO IMMEDIATELY VERIFY THE BID NOTWITHSTANDING THE GOVERNMENT'S SPECIFIC ADVICE OF THE POSSIBILITY OF A MISTAKE AND ITS REASON FOR REQUESTING VERIFICATION. ALTHOUGH THE RECORD, AS NOW SUPPLEMENTED, AND SWORN STATEMENTS BY THE GOVERNMENT REPRESENTATIVES INVOLVED ARE AT VARIANCE WITH YOUR VERSION OF THE FACTS, IT IS THE INVARIABLE RULE OF OUR OFFICE TO ACCEPT AS CORRECT THOSE FACTS REPORTED IN OFFICIAL CORRESPONDENCE TO OUR OFFICE IN THE ABSENCE OF OVERRIDING EVIDENCE TO THE CONTRARY. UPON REVIEW, WE CANNOT SAY THAT THE ADMINISTRATIVELY REPORTED FACTS ARE IN ERROR OR SIGNIFICANTLY CONTRAVENED BY YOUR WRITTEN STATEMENTS.

IT IS POINTED OUT FURTHER THAT IT WAS REASONABLE FOR THE GOVERNMENT TO ASSUME THAT YOUR COMPANY HAD FIRM QUOTES FROM ITS SUPPLIERS AND WOULD NOT NEED TO VERIFY THE PRICE OF EACH PURCHASED PART AND THAT BY RECHECKING YOUR FIGURES POSSIBLE ERROR COULD HAVE BEEN ASCERTAINED. SINCE YOUR VERIFICATION WAS VOLUNTARILY DISPATCHED SO PROMPTLY, THE GOVERNMENT WAS JUSTIFIED IN ASSUMING THAT YOUR FIRM HAD ALREADY RECHECKED ITS FIGURES ON ITS OWN INITIATIVE (AS ANY PRUDENT BUSINESSMAN WOULD HAVE DONE WHEN CONFRONTED WITH THE DISPARITY REVEALED WHEN THE BIDS WERE OPENED) AND WAS MERELY CONFIRMING THAT RECALCULATION.

IN ANY EVENT, EVEN HAD THERE BEEN A REQUEST FOR VERIFICATION ON AN EARLIER DATE THAN JUNE 28, 1969, IT IS DOUBTFUL THAT YOUR COMPANY WOULD HAVE ALLEGED ERROR SINCE YOU FIRST ALLEGED ERROR MORE THAN A MONTH AFTER THE AWARD HAD BEEN MADE.

THE RECORD ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT TO ASCERTAIN THE CORRECTNESS OF YOUR BID; IN FACT, YOUR OFFICIAL REPRESENTATIVE WAS SPECIFICALLY ADVISED THAT YOUR BID WAS $192 OR APPROXIMATELY 14.8 PERCENT LOWER THAN THAT OF THE SECOND LOW BIDDER AND THAT IT WAS THIS FACT THAT PROMPTED THE CONTRACTING OFFICER TO REQUEST VERIFICATION TO ELIMINATE ANY SUSPICION OF ERROR. YOUR REPRESENTATIVE VOLUNTARILY STATED THAT NO MISTAKE HAD BEEN MADE. HE WAS ASKED TO CONFIRM THIS IN WRITING AS SOON AS POSSIBLE IN ORDER THAT TIMELY AWARD ACTION MIGHT BE TAKEN PRIOR TO THE END OF THE FISCAL YEAR ON MONDAY, JUNE 30, 1969. HE AGREED TO DO SO. HE OFFERED TO SEND A TELEGRAM VERIFYING HIS BID THE SAME DAY AS BID VERIFICATION WAS REQUESTED. THIS MR. RUBIN DID AS INDICATED ABOVE. IT WAS NOT UNTIL AFTER YOUR FIRM CONFIRMED ITS BID THAT THE CONTRACTING OFFICER CONSIDERED IT CORRECT AND PROPER FOR AWARD. HAD HE THEREAFTER NOT AWARDED THE CONTRACT TO ELECTRO IMPULSE, INC., AS THE LOWEST RESPONSIVE RESPONSIBLE BIDDER, HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. SEE CARNEGIE STEEL CO. V CONNELLY, 97 A. 774 (1916); SHRIMPTON MFG. CO. V BRIN, 125 S.W. 942 (1910); ALABAMA SHIRT AND TROUSER CO. V UNITED STATES, 121 CT. CL. 313 (1952). MOREOVER, THE FACTS OF RECORD PRECLUDE ANY ASSUMPTION OF BAD FAITH OR ARBITRARY ACTION ON THE PART OF THE CONTRACTING OFFICER. 27 COMP. GEN. 17 (1947).

THE SOLE QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. A RELATIVE ISSUE FOR DETERMINATION IS WHETHER A UNILATERAL MISTAKE ALLEGED AFTER AWARD FURNISHED GROUNDS FOR RESCISSION, REFORMATION, OR ANY OTHER TYPE OF RELIEF WHEN THE CONTRACTOR HAS BEEN PLACED ON NOTICE OF A SUSPECTED MISTAKE BUT HAS VERIFIED HIS BID PRIOR TO AWARD. YOU QUARREL WITH THE SUFFICIENCY OF THE OPPORTUNITY FOR VERIFICATION. THE INVITATION WAS CLEAR AND UNAMBIGUOUS AS TO THE GOVERNMENT'S NEEDS. YOUR FIRM WAS ALONE RESPONSIBLE FOR THE PREPARATION OF ITS BID AND WAS GIVEN AN OPPORTUNITY PRIOR TO AWARD TO RECHECK AND RECOMPUTE ITS FIGURES. WHILE YOU STRESS THE FACT THAT VERIFICATION WAS INITIATED ON A SATURDAY, THE FACTS ALSO ARE CLEAR THAT A RESPONSIBLE OFFICER OF YOUR FIRM WAS MADE AWARE OF THE SITUATION AND WAS GIVEN AN OPPORTUNITY TO VERIFY YOUR BID. AT THAT TIME, IT WAS WITHIN YOUR REPRESENTATIVE'S DISCRETION TO EITHER VERIFY YOUR BID OR REFUSE TO CONFIRM YOUR BID UNTIL SUCH TIME AS HE HAD SATISFIED HIMSELF OF THE CORRECTNESS OF THE BID FIGURES. WHEN THE BID PRICE WAS CONFIRMED, THE CONTRACTING OFFICER HAD NO WAY OF KNOWING, AS THERE WAS NOTHING ON THE FACE OF THE BID ITSELF TO INDICATE ERROR, THAT THERE EXISTED AN ERROR IN COMPUTATION. THE COURT OF CLAIMS IN THE CASE OF FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT. CL. 120, 163 (1943), STATED IN LANGUAGE PARTICULARLY APPLICABLE HERE THAT:

"* * * THE PARTIES ARE DEALING AT ARMS LENGTH AND BIDDERS ARE PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN PERFORM THE WORK SPECIFIED AT A REASONABLE PROFIT. IF THEY FAIL TO DO SO, AS PLAINTIFF DID IN THIS CASE, THE GOVERNMENT CANNOT FOR THAT REASON BE HELD FOR THE RESULTING LOSS.' IT IS CLEAR THAT THE ERROR AS ALLEGED WAS UNILATERAL AND NOT MUTUAL AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT, AND HENCE DOES NOT ENTITLE YOUR FIRM TO THE RELIEF CLAIMED. SEE EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT. CL. 249 (1944); SALIGMAN ET AL. V UNITED STATES, 56 F.SUPP. 505 (1944). SEE, ALSO, 26 COMP. GEN. 415 (1946); 36 ID. 27 (1956). WHILE YOU CITE ASPR 2-406.3 (E) (1) AS REQUIRING THE CONTRACTING OFFICER TO DO MUCH MORE THAN HE DID IN REQUESTING VERIFICATION OF YOUR BID, HE DID ALL THAT WAS REQUIRED OF HIM UNDER THE REGULATIONS. 37 COMP. GEN. 786, 788 (1958) AND 47 ID. 616 (1968). WITH REGARD TO YOUR STATEMENT THAT THE PREVIOUS PROCUREMENT WITH KECO INDUSTRIES, INC., WAS MORE SIGNIFICANT THAN THE DISPARITY IN BID PRICES IN THE INSTANT PROCUREMENT, THE PROCUREMENT ACTIVITY HAS REPORTED THAT IT WAS AWARE OF THIS FACT AND THAT IT WAS ONE OF THE REASONS FOR ITS ACTION IN SEEKING VERIFICATION OF YOUR BID.

IN THESE CIRCUMSTANCES, WE CONCLUDE THAT THE ERROR WAS DUE SOLELY TO THE NEGLIGENCE OF YOUR FIRM IN NOT VERIFYING ITS BID FIGURES BEFORE MAKING THE REQUESTED CONFIRMATION. IT IS WELL ESTABLISHED THAT WHERE AN ERROR IN THE PREPARATION OF A BID WAS DUE SOLELY TO THE NEGLIGENCE OF A COMPANY AND NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT, SUCH ERROR DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE 27 COMP. GEN. 17, 19 (1947); 31 COMP. GEN. 384, 386 (1952); AND 18 FED. B.J. 75, 82 (1958).

THE RECORD ESTABLISHES THAT THE AWARD WAS MADE IN GOOD FAITH AND, CONSEQUENTLY, A VALID AND BINDING CONTRACT RESULTED BETWEEN YOUR COMPANY AND THE GOVERNMENT. IN VIEW THEREOF, THE GOVERNMENT IS ENTITLED TO RECEIVE CONTRACT PERFORMANCE STRICTLY IN ACCORDANCE WITH ITS TERMS AND THAT VESTED RIGHT CANNOT BE SURRENDERED BY ANY OFFICER OF THE GOVERNMENT WITHOUT ADEQUATE CONSIDERATION. IN THIS REGARD, SEE 36 COMP. GEN. 27 (1956).

ACCORDINGLY, YOUR REQUEST FOR RELIEF FROM THE OBLIGATIONS RESULTING FROM THE AWARD PROPERLY MADE TO YOU IS DENIED.