B-128769, SEP. 26, 1956

B-128769, SEP. 26, 1956

TO E. H. MORRILL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 26, 1956, RELATIVE TO AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF CONTRACT NO. NBY-1813 (SPEC. 1813/56) COVERING REPAIRS TO RESERVOIR AND REPLACEMENT OF CHLORINATOR AT THE NAVAL AIR STATION, OAKLAND, CALIFORNIA.

IN RESPONSE TO A REQUEST BY THIS OFFICE, THE DEPARTMENT OF THE NAVY HAS FURNISHED A REPORT AND PAPERS PERTAINING TO THE MATTER. IT APPEARS THAT THE INVITATION, DATED MAY 14, 1956, REQUESTED BIDS, TO BE OPENED JUNE 6, 1956, ON TWO ITEMS AS FOLLOWS:

"ITEM 1.--- PRICE FOR THE ENTIRE WORK, COMPLETE IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS.

"ITEM 2.--- PRICE FOR THE ENTIRE WORK, COMPLETE IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS, BASED ON THE OMISSION OF THE REPLACEMENT OF FILTER MATERIAL, AND PAINTING OF THE POOL.'

YOUR BID WAS IN THE AMOUNTS OF $18,734 AND $13,734 ON ITEMS 1 AND 2, RESPECTIVELY. THE ONLY OTHER BID RECEIVED WAS IN THE AMOUNTS OF $22,697 AND $20,660 ON THE RESPECTIVE ITEMS. BY LETTER DATED JUNE 25, 1956, YOUR BID WAS ACCEPTED AS TO ITEM 2. SOME TIME LATER YOU CONTACTED THE DISTRICT PUBLIC WORKS OFFICE BY TELEPHONE, ALLEGING AN ERROR IN YOUR BID. LETTER DATED JULY 10, 1956, PURPORTING TO WITHDRAW YOUR BID, YOU STATED THAT YOUR BID SHOULD HAVE BEEN $23,734 ON ITEM 1 AND $18,734 ON ITEM 2. IN YOUR LETTER OF JULY 26, 1956, IT IS STATED:

"* * * THROUGH ERROR OUR BID READ AS FOLLOWS:

TABLE

"ITEM 1 $18,734.00 ITEM 2 $13,734.00

"OUR BID SHOULD HAVE READ:

"ITEM 1 $23,734.00 ITEM 2 $18,734.00

"IN CHECKING OUR RECAP WE DISCOVERED THAT WE INADVERTENTLY TRANSPOSED THE BID ITEMS, AND IN ARRIVING AT OUR BID FOR ITEM 2 WE DEDUCTED $5,000.00 FROM ITEM 1 INSTEAD OF ADDING $5,000.00. THEREFORE, IF WE HAD NOT TRANSPOSED THE BID ITEMS IN ERROR, OUR BID FOR ITEM 1 WOULD BE $18,734.00 AND ITEM 2 $23,734.00.'

YOU REQUEST PERMISSION TO WITHDRAW YOUR BID OR TO PERFORM THE CONTRACT WORK FOR A CORRECTED BID PRICE OF $18,734.

IN 20 COMP. GEN. 652 IT IS STATED:

"THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 526; 8 ID. 362.'

IN THE INSTANT MATTER, NO SATISFACTORY EXPLANATION OR EVIDENCE HAS BEEN FURNISHED THAT THERE WAS AN ERROR IN YOUR BID OF A KIND FOR WHICH RELIEF MAY BE AUTHORIZED. SUCH ERROR AS MAY HAVE BEEN MADE WAS NOT MUTUAL AND IT WAS NOT SO APPARENT AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR. IT IS REPORTED THAT THE GOVERNMENT'S ESTIMATE FOR ITEM 2 WAS $13,250--- SLIGHTLY LESS THAN YOUR BID ON THAT ITEM. NEITHER WAS THE ALLEGED ERROR INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. ACCORDINGLY, THE ESTABLISHED RULE ABOVE QUOTED IS FOR APPLICATION HERE. THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 55.

IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. 14 COMP. GEN. 468; 20 ID. 703 AND COURT CASES CITED.

FOR THE REASONS ABOVE SET FORTH, THERE APPEARS NO VALID BASIS FOR CANCELLING THE CONTRACT OR INCREASING THE CONTRACT PRICE.

A COPY OF THIS DECISION IS BEING FURNISHED TO THE SECRETARY OF THE NAVY.