B-174962, FEB 7, 1972

B-174962: Feb 7, 1972

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ALTHOUGH CLAIMANT MAY HAVE A RIGHT TO PAYMENT FROM ITS CARRIER. THE CLAIM IS NOT ALLOWABLE AND THE VOUCHER ACCOMPANYING THE ABOVE LETTER IS NOT TO BE CERTIFIED FOR PAYMENT. ROME WAS AWARDED A FIXED-PRICE CONTRACT UNDER AN INVITATION FOR BIDS (IFB) WHICH SOLICITED PRICES ON TWO ITEMS OF COPPER CONDENSER TUBES TO BE DELIVERED F.O.B. POINT WAS THE DESTINATION OF THE SUPPLIES AND THAT THE SUPPLIES WERE TO BE SHIPPED VIA THE CONTRACTOR'S MEANS. WHATEVER RIGHTS ROME MAY HAVE AGAINST ITS CARRIER. WE FIND NO BASIS UPON WHICH THE GOVERNMENT MAY BE HELD LIABLE FOR THE COSTS WHICH ARE CLAIMED. THIS PROCUREMENT WAS EFFECTED BY A FIXED-PRICE CONTRACT WHERE UNDER THE COST OF TRANSPORTATION WAS FOR THE ACCOUNT OF ROME.

B-174962, FEB 7, 1972

CONTRACTS - ERRONEOUS CARRIER QUOTATION - GOVERNMENT LIABILITY DECISION DENYING CLAIM OF ROME-TURNEY RADIATOR COMPANY FOR ADDITIONAL FREIGHT COST REIMBURSEMENT. ALTHOUGH CLAIMANT MAY HAVE A RIGHT TO PAYMENT FROM ITS CARRIER, THE GOVERNMENT ASSUMED NO SUCH LIABILITY UNDER THE FIXED-PRICE CONTRACT. THE CLAIM MAY NOT BE ALLOWED SINCE THE CONTRACTING OFFICER COULD NOT BE REASONABLY EXPECTED TO NOTICE THE ERROR.

TO MR. W. L. TUCKER:

WE REFER TO A LETTER DATED JANUARY 11, 1972, YOUR REFERENCE 2-363, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION PURSUANT TO 31 U.S.C. 82D WITH RESPECT TO THE CLAIM OF THE ROME-TURNEY RADIATOR COMPANY (ROME) FOR ADDITIONAL FREIGHT COST REIMBURSEMENT IN THE AMOUNT OF $94.27. THE CLAIM IS NOT ALLOWABLE AND THE VOUCHER ACCOMPANYING THE ABOVE LETTER IS NOT TO BE CERTIFIED FOR PAYMENT.

ROME WAS AWARDED A FIXED-PRICE CONTRACT UNDER AN INVITATION FOR BIDS (IFB) WHICH SOLICITED PRICES ON TWO ITEMS OF COPPER CONDENSER TUBES TO BE DELIVERED F.O.B. SHASTA DAM. ON DECEMBER 3, 1969, THE BUREAU OF RECLAMATION ISSUED A PURCHASE ORDER FOR THE TUBING WHICH INDICATED THAT THE F.O.B. POINT WAS THE DESTINATION OF THE SUPPLIES AND THAT THE SUPPLIES WERE TO BE SHIPPED VIA THE CONTRACTOR'S MEANS. THE BLOCK ON THE PURCHASE ORDER ENTITLED "GOV'T. B/L NO." HAD THREE DASH MARKS IN IT AND NO INDICATION OF A NUMBER. THE AMOUNT NOW CLAIMED REPRESENTS THE DIFFERENCE BETWEEN THE ERRONEOUS FREIGHT RATE ORIGINALLY QUOTED TO ROME BY ITS CARRIER AND THE CORRECT TARIFF RATE FOR THE SHIPMENT.

WHATEVER RIGHTS ROME MAY HAVE AGAINST ITS CARRIER, WE FIND NO BASIS UPON WHICH THE GOVERNMENT MAY BE HELD LIABLE FOR THE COSTS WHICH ARE CLAIMED. THIS PROCUREMENT WAS EFFECTED BY A FIXED-PRICE CONTRACT WHERE UNDER THE COST OF TRANSPORTATION WAS FOR THE ACCOUNT OF ROME. ALTHOUGH ROME'S BID MAY WELL HAVE BEEN BASED ON AN ERRONEOUS FREIGHT RATE QUOTATION, THE QUESTION IS WHETHER A VALID CONTRACT WAS CONSUMMATED UPON ACCEPTANCE OF ROME'S BID. SEE B-163953, MAY 6, 1968. IN THIS CONNECTION, IT DOES NOT APPEAR THAT THE ROME BID WAS OTHER THAN INTENDED OR, GIVEN ROME'S BID PRICE OF $84,348 AND THE GOVERNMENT'S ESTIMATE OF $81,900, THAT THE CONTRACTING OFFICER WAS CONSTRUCTIVELY ON NOTICE OF PROBABILITY OF ERROR. IN SUCH CIRCUMSTANCES, THE CLAIM MAY NOT BE ALLOWED. B-163953, SUPRA; B- 169810, JULY 8, 1970.