B-167821, OCT. 22, 1969
Highlights
NOTWITHSTANDING ERROR IS SUBSTANTIATED BY WORKSHEET AND SUPPLIER'S INVOICE. SINCE PRICE DIFFERENCE WAS NOT SUFFICIENT TO PLACE CONTRACTING OFFICER ON NOTICE OF LIKELIHOOD OF ERROR. RECORD DOES NOT ESTABLISH MISTAKE WAS MUTUAL. ERROR DUE SOLELY TO OVERSIGHT OR NEGLIGENCE NOT CONTRIBUTED TO BY GOVERNMENT IS UNILATERAL. TO MAJESTIC PLUMBING AND HEATING SUPPLY CORP.: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27. REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH CONTRACT NO. GS-02S-6635 WAS BASED. BID PRICES WERE REQUESTED ON AN F.O.B. THE BID OF YOUR FIRM WAS ACCEPTED AS TO ITEMS 11. YOUR CLERK SHOULD HAVE ADDED RATHER THAN DEDUCTED 1.4 PERCENT OF THE COST AS PROFIT.
B-167821, OCT. 22, 1969
MISTAKES--ALLEGATION AFTER AWARD--UNILATERAL--ERRORS CONTRACTOR, WHO AFTER AWARD FOR QUANTITIES OF PIPE, ALLEGES ERROR IN PRICE OF 3 ITEMS BECAUSE OF CLERK'S ERRONEOUS COMPUTATION OF MARGIN OF PROFIT -- DEDUCTING RATHER THAN ADDING 1.4 PERCENT OF COST -- MAY NOT BE RELIEVED OF OBLIGATION TO FURNISH ITEMS AT CONTRACT PRICE AND NO BASIS EXISTS FOR INCREASING CONSIDERATION, NOTWITHSTANDING ERROR IS SUBSTANTIATED BY WORKSHEET AND SUPPLIER'S INVOICE, SINCE PRICE DIFFERENCE WAS NOT SUFFICIENT TO PLACE CONTRACTING OFFICER ON NOTICE OF LIKELIHOOD OF ERROR, RECORD DOES NOT ESTABLISH MISTAKE WAS MUTUAL, ERROR DUE SOLELY TO OVERSIGHT OR NEGLIGENCE NOT CONTRIBUTED TO BY GOVERNMENT IS UNILATERAL, AND ACCEPTANCE OF BID CONSUMMATED VALID AND BINDING CONTRACT.
TO MAJESTIC PLUMBING AND HEATING SUPPLY CORP.:
REFERENCE IS MADE TO YOUR LETTER OF AUGUST 27, 1969, AND SUBSEQUENT CORRESPONDENCE, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH CONTRACT NO. GS-02S-6635 WAS BASED.
THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, NEW YORK, NEW YORK, BY SOLICITATION NO. NY-2-JOF-1D-E-10049, REQUESTED BIDS -- TO BE OPENED NOVEMBER 15, 1968 -- FOR FURNISHING DEFINITE QUANTITIES OF DRIVE AND DRILLING LINE PIPE, COMMODITY GROUP NO. 47, ITEMS 1 THROUGH 13. BID PRICES WERE REQUESTED ON AN F.O.B. ORIGIN (EXPORT PACKED) BASIS AND ON AN FAS VESSEL U.S. PORT OF EXIT (EXPORT PACKED) BASIS. IN RESPONSE, YOU SUBMITTED A BID OFFERING TO FURNISH, AMONG OTHER ITEMS, THE PIPE COVERED BY ITEMS 11, 12, AND 13 AT UNIT PRICES OF $5.5574, $3.9455, AND $3.0522 PER FOOT, RESPECTIVELY, F.O.B. ORIGIN (EXPORT PACKED) OR FAS U.S. PORT OF EXIT (EXPORT PACKED). BY APPLICATION OF THE PROMPT PAYMENT DISCOUNT OF 7 PERCENT OFFERED BY YOUR FIRM, YOUR BID BECAME THE LOWEST BID RECEIVED ON ITEMS 11, 12, AND 13. THE BID OF YOUR FIRM WAS ACCEPTED AS TO ITEMS 11, 12, AND 13 (FAS VESSEL U.S. PORT OF EXIT (EXPORT PACKED) ( ON DECEMBER 3, 1968.
BY LETTER DATED FEBRUARY 8, 1969, YOU ADVISED THE CONTRACTING OFFICE THAT AN ERROR HAD BEEN MADE BY YOUR FIRM IN COMPUTING YOUR BID PRICES FOR ITEMS 11, 12, AND 13 IN THAT INSTEAD OF ADDING 1.4 PERCENT OF THE COST OF MATERIALS AS PROFIT, YOUR EMPLOYEE INADVERTENTLY DEDUCTED 1.4 PERCENT OF THE COST TO ARRIVE AT YOUR BID PRICES FOR THOSE ITEMS. YOU REQUESTED THAT THE CONTRACT UNIT PRICE FOR ITEM 11 BE INCREASED FROM $5.5574 TO $5.7157 PER FOOT; THAT THE CONTRACT UNIT PRICE FOR ITEM 12 BE INCREASED FROM $3.9455 TO $4.058 PER FOOT; AND THAT THE CONTRACT UNIT PRICE FOR ITEM 13 BE INCREASED FROM $3.0522 TO $3.1391 PER FOOT. IN SUPPORT OF YOUR ALLEGATION OF ERROR, YOU SUBMITTED A PHOTOSTATIC COPY OF THE INVITATION WHICH YOU USED AS A WORKSHEET. AN EXAMINATION OF YOUR WORKSHEET INDICATES THAT IN COMPUTING THE BID PRICES FOR ITEMS 11, 12, AND 13, YOUR CLERK SHOULD HAVE ADDED RATHER THAN DEDUCTED 1.4 PERCENT OF THE COST AS PROFIT. YOU ALSO SUBMITTED A COPY OF THE INVOICE YOU RECEIVED FROM YOUR SUPPLIER, JONES AND LAUGHLIN STEEL CORPORATION.
THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN YOUR BID. THE ABSTRACT OF BIDS SHOWS THAT ON ITEM 11, THE NINE OTHER RESPONSIVE BIDDERS QUOTED PRICES RANGING FROM $5.43 TO $6.60 PER FOOT; THAT ON ITEM 12 THEY QUOTED PRICES RANGING FROM $3.8576 TO $4.90 PER FOOT; AND THAT ON ITEM 13 THEY QUOTED PRICES RANGING FROM $2.9842 TO $3.60 PER FOOT. IT ALSO INDICATES THAT YOUR BID ON ITEMS 11, 12, AND 13 BECAME LOW ONLY BY REASON OF THE PROMPT PAYMENT DISCOUNT OFFERED BY YOUR FIRM. YOU CONTEND THAT THE DIFFERENCE OF 3.03 PERCENT BETWEEN YOUR PRICES ON ITEMS 11, 12, AND 13 AND THE PRICES BID BY THE NEXT LOWEST BIDDER ON THOSE ITEMS, ESPECIALLY IN VIEW OF THE AVERAGE PERCENTAGE INCREASE OF EACH SUCCEEDING HIGHER BIDDER (0.94, 0.94, AND 0.92 FOR ITEMS 11, 12, AND 13 RESPECTIVELY), PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF THE PROBABILITY OF A MISTAKE IN YOUR BID. WHILE THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOWEST BID ON ITEMS 11, 12, AND 13 WAS GREATER THAN THE DIFFERENCE BETWEEN EACH OF THE OTHER BIDS, WE CANNOT SAY THAT SUCH PRICE DIFFERENCE, STANDING ALONE, WAS SUFFICIENT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE LIKELIHOOD OF ERROR IN YOUR BID. ALTHOUGH, AFTER AWARD, YOU FURNISHED EVIDENCE TENDING TO SUPPORT YOUR ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT PRIOR TO AWARD THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE DIFFERENT FACTORS USED BY YOU IN COMPUTING YOUR BID PRICES. THE ACCEPTANCE OF YOUR BID, IN THESE CIRCUMSTANCES, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.
THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU AS THE BIDDER. FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT. CL. 120, 163. WHILE IT MAY BE THAT AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO YOUR OWN OVERSIGHT OR NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - - NOT MUTUAL -- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT. CL. 249; SALIGMAN ET AL. V UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 652 AND 26 ID. 415.
ACCORDINGLY, NO LEGAL BASIS EXISTS FOR RELIEVING YOU FROM YOUR OBLIGATION TO FURNISH ITEMS 11, 12, AND 13 AT THE CONTRACT PRICES OR FOR INCREASING THE CONSIDERATION UNDER THE CONTRACT.