B-99496, APR 2, 1951

B-99496: Apr 2, 1951

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 16. TO HAVE BEEN MADE IN ITS BID DATED SEPTEMBER 15. AF 33(096)-1465 IS BASED. THE BID OF THE COMPANY WAS ACCEPTED AS TO ALL ITEMS ON OCTOBER 9. THE SINGER SEWING MACHINE COMPANY ADVISED THE CONTRACTING OFFICE THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT HAD FAILED TO NOTE THAT ALL OF THE NEEDLES WERE REQUIRED TO BE CHROMIUM FINISHED AND. ADVISED THE COMPANY THAT HE WAS WITHOUT AUTHORITY TO GRANT THE RELIEF REQUESTED BUT THAT IT COULD REQUEST SUCH RELIEF FROM THE GENERAL ACCOUNTING OFFICE. THE COMPANY REQUESTED RELIEF AND STATED THEREIN THAT "IT IS NOT POSSIBLE FOR US TO SEND ANY SUPPORTING WORK SHEETS SHOWING HOW THE ERROR WAS COMMITTED NOR CAN WE GIVE AFFIDAVITS SUPPORTING SAME.".

B-99496, APR 2, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 16, 1951, WITH ENCLOSURES, FROM THE DIRECTOR OF FINANCE, SUBMITTED IN RESPONSE TO LETTER OF THIS OFFICE DATED NOVEMBER 27, 1950, RELATIVE TO AN ERROR ALLEGED BY THE SINGER SEWING MACHINE COMPANY, CINCINNATI, OHIO, TO HAVE BEEN MADE IN ITS BID DATED SEPTEMBER 15, 1950, ON WHICH CONTRACT NO. AF 33(096)-1465 IS BASED.

BY INVITATION NO. WF-51-955, DATED SEPTEMBER 13, 1950, THE BASE CONTRACTING SECTION, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, REQUESTED BIDS ON "NEEDLES, CHROMIUM FINISH" AS DESCRIBED IN ITEMS 1 TO 76, INCLUSIVE. IN RESPONSE THERETO, THE SINGER SEWING MACHINE COMPANY SUBMITTED A BID WHEREIN IT OFFERED TO FURNISH CERTAIN QUANTITIES OF CHROMIUM-FINISHED NEEDLES UNDER ITEMS 1 THROUGH 15 AND ITEMS 19 THROUGH 65, INCLUSIVE, OF SAID INVITATION AT THE PRICES SPECIFIED THEREIN. THE BID OF THE COMPANY WAS ACCEPTED AS TO ALL ITEMS ON OCTOBER 9, 1950, CONSUMMATING CONTRACT NO. AF 33(096)-1465.

BY LETTER DATED NOVEMBER 2, 1950, THE SINGER SEWING MACHINE COMPANY ADVISED THE CONTRACTING OFFICE THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT HAD FAILED TO NOTE THAT ALL OF THE NEEDLES WERE REQUIRED TO BE CHROMIUM FINISHED AND, THEREFORE, THE COMPANY REQUESTED THAT THE PER 100 UNIT PRICE OF EACH ITEM ON SAID PURCHASE ORDER BE INCREASED BY THE SUM OF $0.50 TO COVER THE COST OF THE CHROMIUM FINISH. IN REPLY THERETO, THE CONTRACTING OFFICER, BY LETTER DATED NOVEMBER 7, 1950, ADVISED THE COMPANY THAT HE WAS WITHOUT AUTHORITY TO GRANT THE RELIEF REQUESTED BUT THAT IT COULD REQUEST SUCH RELIEF FROM THE GENERAL ACCOUNTING OFFICE.

IN A LETTER DATED NOVEMBER 10, 1950, ADDRESSED TO THIS OFFICE, THE COMPANY REQUESTED RELIEF AND STATED THEREIN THAT "IT IS NOT POSSIBLE FOR US TO SEND ANY SUPPORTING WORK SHEETS SHOWING HOW THE ERROR WAS COMMITTED NOR CAN WE GIVE AFFIDAVITS SUPPORTING SAME."

THERE WAS NOTHING ON THE FACE OF THE BID OF THE COMPANY TO INDICATE THAT THE PRICES BID FOR THE NEEDLES DID NOT INCLUDE CHROMIUM FINISH AND, SINCE THE BID OF THE COMPANY WAS THE ONLY BID ON SAID ITEMS, THERE WAS NO BASIS FOR COMPARISON OF BIDS; HENCE, THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, THERE WOULD APPEAR TO BE NO BASIS UPON WHICH IT COULD BE HELD THAT THE ACCEPTANCE OF THE BID DID NOT CONSUMMATE A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U. S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U. S. 75.

MOREOVER, THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT BIDS WERE DESIRED ON NEEDLES HAVING A CHROMIUM FINISH. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. IF THE PRICES QUOTED BY THE SINGER SEWING MACHINE COMPANY WERE FOR NEEDLES WITHOUT CHROMIUM FINISH, AS ALLEGED, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U. S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505; 20 COMP. GEN. 652; AND 26 ID. 415.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR MODIFYING THE PRICES SPECIFIED IN CONTRACT NO. AF 33(096)-1465, AS REQUESTED BY THE SINGER SEWING MACHINE COMPANY.