B-176364, SEP 1, 1972

B-176364: Sep 1, 1972

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FOR RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN THE BID UPON WHICH A DSA CONTRACT IS BASED. THERE WAS NO REASON FOR THE CONTRACTING OFFICER TO HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE ERROR AND. THE REQUEST FOR RELIEF IS DENIED. INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 28. REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH DEFENSE SUPPLY AGENCY CONTRACT NO. DSA500-72-C-4469 WAS BASED. THE BID OF YOUR CORPORATION WAS ACCEPTED ON MARCH 30. THAT YOUR FIRM DOES NOT HAVE THE EQUIPMENT NECESSARY TO MANUFACTURE THE NYLON CORD TO THE LATTER SPECIFICATIONS. IN VIEW OF THE RANGE IN THE PRICES RECEIVED AND THE FACT THAT THE PREVIOUS PURCHASE OF IDENTICAL NYLON CORD WAS MADE AT A PRICE OF $15.35 PER SPOOL.

B-176364, SEP 1, 1972

CONTRACT - UNILATERAL MISTAKE - LACK OF NOTICE DECISION DENYING REQUEST OF WESTERN FILAMENT, INC., FOR RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN THE BID UPON WHICH A DSA CONTRACT IS BASED. SO FAR AS THE PRESENT RECORD SHOWS, THERE WAS NO REASON FOR THE CONTRACTING OFFICER TO HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE ERROR AND, THEREFORE, THE ACCEPTANCE OF THE BID RESULTED IN A VALID AND BINDING CONTRACT. ACCORDINGLY, THE REQUEST FOR RELIEF IS DENIED.

TO WESTERN FILAMENT, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1972, AND PRIOR CORRESPONDENCE, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH DEFENSE SUPPLY AGENCY CONTRACT NO. DSA500-72-C-4469 WAS BASED.

THE DEFENSE INDUSTRIAL SUPPLY CENTER, PHILADELPHIA, PENNSYLVANIA, BY INVITATION FOR BIDS NO. DSA500-72-B-2333, REQUESTED BIDS FOR FURNISHING 228 SPOOLS OF NYLON CORD. IN RESPONSE, YOU SUBMITTED A BID OFFERING TO FURNISH THE NYLON CORD AT A PRICE OF $15.25 PER SPOOL. THE THREE OTHER BIDS RANGED FROM $15.90 TO $24 PER SPOOL. THE BID OF YOUR CORPORATION WAS ACCEPTED ON MARCH 30, 1972.

BY LETTERS DATED APRIL 6 AND 26, 1972, YOU ADVISED THE CONTRACTING OFFICE THAT YOU HAD ERRONEOUSLY BASED YOUR BID PRICE ON MANUFACTURING THE NYLON CORD IN ACCORDANCE WITH SPECIFICATION MIL-C-5040D INSTEAD OF SPECIFICATION MIL-C-7515D, CITED IN THE IFB, AND THAT YOUR FIRM DOES NOT HAVE THE EQUIPMENT NECESSARY TO MANUFACTURE THE NYLON CORD TO THE LATTER SPECIFICATIONS.

AT THE TIME OF ACCEPTANCE, THE CONTRACTING OFFICER HAD RECEIVED NO NOTICE OR CLAIM OF ERROR AND, IN VIEW OF THE RANGE IN THE PRICES RECEIVED AND THE FACT THAT THE PREVIOUS PURCHASE OF IDENTICAL NYLON CORD WAS MADE AT A PRICE OF $15.35 PER SPOOL, WE CANNOT SAY THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN YOUR BID. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH - NO ERROR HAVING BEEN ALLEGED BY YOUR FIRM UNTIL AFTER AWARD. THE ACCEPTANCE OF YOUR BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF FROM THE TERMS OF THE CONTRACT. SEE 40 COMP. GEN. 326, 332 (1960); 49 ID. 272 (1969).

IN YOUR LETTER OF JULY 28, 1972, YOU INDICATE THAT YOU DO NOT HAVE THE EQUIPMENT NECESSARY TO PERFORM THE CONTRACT AND THAT IF THE CONTRACT IS NOT CANCELED YOU DO NOT INTEND TO PERFORM THE CONTRACT. IN THAT CONNECTION, YOU INDICATE THAT YOU ARE PREPARED TO PAY $148.20, THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOW BID, IF YOU ARE EXCUSED FROM PERFORMANCE. BY LETTER OF TODAY WE ARE INFORMING DSA OF THIS MATTER FOR ITS CONSIDERATION UNDER THE CONTRACT DEFAULT CLAUSE.