B-99426, SEP 27, 1951

B-99426, SEP 27, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED JULY 11, 1951, FROM THE CHIEF, ADJUDICATIONS BRANCH, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FORWARDING THE REPORT REQUESTED BY THIS OFFICE WITH RESPECT TO AN ERROR ALLEGED BY MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., 16 WARREN STREET, NEW YORK, NEW YORK, IN ITS LETTER OF NOVEMBER 11, 1950, TO HAVE BEEN MADE ON ITEMS 43 AND 44 OF ITS BID OPENED ON MAY 16, 1950.

MALLORY AIR FORCE SPECIALIZED DEPOT, MEMPHIS, TENNESSEE, BY INVITATION NO. 40-087-50-44, REQUESTED BIDS FOR FURNISHING, AMONG OTHERS, UNDER ITEM 43 NINE VISES, BENCH, MACHINISTS, SWIVEL BASE AND JAW, 3 1/2" JAW, TYPE VII, CLASS C, FEDERAL SPECIFICATION GGG-V-436, DATED APRIL 9, 1942, AND UNDER ITEM 44 SEVENTEEN OF THE SAME TYPE OF VISES EXCEPT THAT A 4 1/2" JAW WAS REQUIRED. IN RESPONSE TO THE INVITATION, MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., SUBMITTED BID DATED MAY 15, 1950, OFFERING TO FURNISH ITEMS 43 AND 44 FOR $19.89 AND $23.95 EACH, RESPECTIVELY. THE BID OF MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., BEING THE LOWEST RECEIVED ON ITEMS 43 AND 44, AND SEVERAL OTHER ITEMS, WAS ACCEPTED BY PURCHASE ORDER NO. (40- 087)50-4157 DATED JUNE 6, 1950.

BY LETTER DATED JUNE 30, 1950, AND SUBSEQUENT CORRESPONDENCE, MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., ADVISED THE CONTRACTING OFFICER THAT UPON PLACING AN ORDER FOR ITEMS 43 AND 44 WITH ITS CONTEMPLATED SUPPLIER IT WAS ADVISED BY SAID SUPPLIER THAT IT DID NOT MAKE SWIVEL JAW VISES AS THERE WAS VERY LITTLE DEMAND FOR THAT TYPE OF VISE AND, THEREFORE, THE CONTRACTOR REQUESTED ADVICE AS TO WHETHER SWIVEL BASE VISES, CLASS B, WITHOUT SWIVEL JAWS WOULD BE ACCEPTABLE. THE CONTRACTOR WAS ADVISED THAT THE CLASS B VISES OFFERED AS A SUBSTITUTE WERE NOT ACCEPTABLE AS THE CLASS C VISES SPECIFIED WERE REQUIRED IN CERTAIN OPERATIONS. AFTER CONSIDERABLE CORRESPONDENCE RELATIVE TO THE MATTER, THE CONTRACTOR FURNISHED VISES IN ACCORDANCE WITH THE SPECIFICATIONS.

IN A LETTER DATED NOVEMBER 11, 1950, TO THIS OFFICE, THE CONTRACTOR REQUESTED THAT IT BE PAID THE DIFFERENCE BETWEEN ITS BID PRICE FOR ITEMS 43 AND 44 OF $19.89 AND $23.95 EACH, RESPECTIVELY, AND ITS ACTUAL COST OF $24.36 AND $34.10 FOR THE VISES FURNISHED, AS EVIDENCED BY AN ENCLOSED COPY OF AN INVOICE FROM ANOTHER SUPPLIER WHICH FURNISHED THE VISES. SAID LETTER IT IS STATED THAT IN VIEW OF THE DIFFERENCE BETWEEN ITS BID PRICE AND THE OTHER QUOTATIONS RECEIVED ON SAID ITEMS "IT WAS THE DUTY OF THE GOVERNMENT AGENCY TO CALL THESE ENORMOUS DIFFERENCES TO OUR ATTENTION BEFORE PLACING THE AWARD WITH US."

THE ABSTRACT OF BIDS SHOWS THAT THE SEVEN OTHER BIDS RECEIVED WERE $22, $23.20, $24.36, $26.75, $26.78, $27.04 AND $27.07 FOR ITEM 43; AND $29.50, $32.48, $34.10, $37.49, $37.50, $37.85 AND $37.89 FOR ITEM 44.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE CONTRACTING OFFICER REPORTS THAT HE WAS NOT ON NOTICE OF ERROR PRIOR TO THE ACCEPTANCE OF THE BID. THE DIFFERENCES BETWEEN PRICES BID BY THE CORPORATION ON ITEMS 43 AND 44 AND THE OTHER PRICES BID THEREON ARE NOT SO GREAT AS TO WARRANT A CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR. THIS IS PARTICULARLY SO WHEN CONSIDERATION IS GIVEN TO THE FACT THAT QUOTATIONS RECEIVED ON OTHER ITEMS VARY TO A MUCH LARGER EXTENT THAN ON THE ITEMS INVOLVED. THUS, THERE APPEARS TO HAVE BEEN NOTHING ON THE FACE OF THE BID, OR IN THE ATTENDANT CIRCUMSTANCES, TO INDICATE TO THE CONTRACTING OFFICER THE POSSIBILITY OF ERROR. THE RECORD INDICATES THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., IN ITS LETTER OF NOVEMBER 11, 1950, FURTHER STATES THAT PRIOR TO PLACING ITS ORDER FOR THE VISES WITH A CERTAIN SUPPLIER, IT ATTEMPTED TO PLACE ITS ORDER WITH THE FIRMS WHO SUBMITTED THE SECOND AND THIRD LOWEST QUOTATIONS ON THE ITEMS INVOLVED; THAT "AFTER HAVING BEEN ADVISED WHAT THEY ARE ABLE TO FURNISH, WE REALIZED THAT WHAT THEY QUOTED ON DID NOT MEET SPECIFICATIONS"; AND THAT, THEREFORE, SUCH FACT ELIMINATED THE COMPARISON OF THE PRICES QUOTED BY SAID FIRMS WITH THE PRICES QUOTED BY IT. WHILE THIS OFFICE HAS NO INFORMATION, AND APPARENTLY THE CONTRACTING OFFICER HAD NO KNOWLEDGE AS TO THE TYPE OF VISES WHICH THE SECOND AND THIRD LOWEST BIDDERS PROPOSED TO FURNISH, NEVERTHELESS, THEIR BIDS WERE UNQUALIFIED AND IT WAS TO BE ASSUMED THAT THEY PROPOSED TO FURNISH THE VISES CALLED FOR BY THE SPECIFICATIONS.

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT AS TO THE TYPE OF VISES DESIRED. THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. ANY ERROR IN THE BID WAS IN NO WAY INDUCED OR CONTRIBUTED BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259.

MOREOVER, IT APPEARS THAT THE BID OF MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., ON ITEMS 43 AND 44 WAS AS INTENDED AT THE TIME IT WAS SUBMITTED. SUCH ERROR AS MAY HAVE BEEN MADE IN THE MATTER APPEARS TO HAVE BEEN IN THE QUOTATION MADE TO THE CORPORATION BY ITS SUPPLIER. IF THE CORPORATION ELECTED TO SUBMIT A BID TO THE GOVERNMENT ON THE BASIS OF QUOTATIONS RECEIVED FROM ITS SUPPLIER WITHOUT DEFINITE KNOWLEDGE AS TO THE CORRECTNESS THEREOF, THAT IS A MATTER WITH WHICH THE GOVERNMENT IS NOT CONCERNED AND THE BIDDER MUST ASSUME THE CONSEQUENCES OF SUCH ERROR OR LOOK FOR ADJUSTMENT TO THE COMPANY WHICH SUBMITTED THE QUOTATION FORMING THE BASIS OF THE CORPORATION'S BID TO THE GOVERNMENT. 6 COMP. GEN. 504; 18 ID. 28; AND 27 ID. 724.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR AUTHORIZING PAYMENT TO MANHATTAN LIGHTING EQUIPMENT COMPANY, INC., OF ANY AMOUNT IN EXCESS OF THE PRICES SPECIFIED FOR ITEMS 43 AND 44 IN PURCHASE ORDER NO. (40 087)50-4157.