B-83875, MAY 26, 1949

B-83875, MAY 26, 1949

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1949, CONCERNING A LETTER DATED JANUARY 25, 1949, FROM BOWSER, INCORPORATED, WHEREIN ERROR IS ALLEGED TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. AF 33(038)-646, DATED DECEMBER 9, 1948, WAS AWARDED.

THE WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, BY INVITATION NO. (IFB)33-038-49-474 REQUESTED BIDS-- TO BE OPENED NOVEMBER 17, 1948-- FOR FURNISHING 1300 REFLECTOR ASSEMBLIES AS DESCRIBED THEREIN. IN RESPONSE TO THE INVITATION, BOWSER, INCORPORATED, SUBMITTED A BID DATED NOVEMBER 12, 1948, WHEREIN IT OFFERED TO FURNISH THE REFLECTOR ASSEMBLIES FOR $16.03 EACH. THE BID OF THE CORPORATION WAS ACCEPTED ON DECEMBER 9, 1948.

IN THE REFERRED-TO LETTER OF JANUARY 25, 1949, THE CORPORATION STATED THAT ITS BID PRICE WAS PREDICATED UPON A QUOTATION FROM ITS SUPPLIER IN THE AMOUNT OF 22 CENTS EACH FOR A REFLECTOR SIGHT GLASS; THAT SUBSEQUENTLY SAID SUPPLIER STATED THAT IT COULD NOT MEET THE REQUIREMENTS OF THE SPECIFICATIONS NOR FURNISH THE REFLECTOR GLASS; AND THAT AN ORDER WAS PLACE WITH ANOTHER COMPANY AT A PRICE OF $3.56 EACH FOR THE REFLECTOR SIGHT GLASS. THE CONTRACTOR REQUESTED THAT THE CONTRACT PRICE BE INCREASED $3.34 PER UNIT FOR 1400 UNITS OR A TOTAL INCREASE OF $4,676.

THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY THE GOVERNMENT IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. CONSEQUENTLY, IF BOWSER, INCORPORATED, SUBMITTED A BID BASED IN PART, UPON A QUOTATION RECEIVED FROM ITS SUPPLIER WITHOUT DEFINITE KNOWLEDGE THAT THE QUOTATION FROM SAID SUPPLIER WAS ON AN ARTICLE MEETING THE REQUIREMENTS SET FORTH IN THE INVITATION AND IT DEVELOPED THAT SUPPLIER DID NOT QUOTE ON AN ARTICLE MEETING THE REQUIREMENTS OF THE GOVERNMENT, THAT IS A MATTER WITH WHICH THE GOVERNMENT IS NOT CONCERNED AND THE CORPORATION MUST ASSUME THE CONSEQUENCES OF SUCH ERROR OR LOOK TO ITS SUPPLIER FOR ADJUSTMENT IN THE MATTER. SEE 6 COMP.GEN. 504; AND 18 ID. 28. IT IS CLEAR THAN ANY ERROR THAT WAS MADE IN THE MATTER WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. THUS, THE ERROR WAS UNILATERAL-- NOT MUTUAL-- AND THEREFORE DOES NOT ENTITLE THE CORPORATION TO RELIEF. SEE 25 COMP.GEN. 536, 538.

MOREOVER, THE CONTRACTING OFFICER REPORTED THAT NO ERROR WAS NOTICED IN THE BID OF BOWSER, INCORPORATED, AT THE TIME OF AWARD. THERE WAS NOTHING ON THE FACE OF THE BID OF THE CORPORATION TO INDICATE THAT THE PRICE QUOTED WAS NOT AS INTENDED. THE ABSTRACT OF BIDS SHOWS THAT THE TEN OTHER BIDS WERE IN AMOUNTS OF $18.90, $23, $24.71, $26.75, $29.63, $38.13, $38.66, $49.65, $49.85 AND $72, EACH. THUS, THE BID OF THE CORPORATION IN THE AMOUNT OF $16.03 EACH WAS NOT OUT OF LINE WITH OTHER BIDS. CONSEQUENTLY, THERE APPEARS TO HAVE BEEN NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED BY THE CORPORATION UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR INCREASING THE PRICE SPECIFIED IN CONTRACT NO. AF 33(038)-646 AND, THEREFORE, THE CORPORATION SHOULD BE REQUIRED TO FURNISH THE REFLECTOR ASSEMBLIES AT THE PRICE SPECIFIED THEREFOR IN THE CONTRACT.