B-129173, OCT. 30, 1956

B-129173, OCT. 30, 1956

TO EAST RIVER PLANING MILL, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1956, REQUESTING REVIEW OF THE GOVERNMENT'S CLAIM AGAINST YOU IN THE AMOUNT OF $3,931.28, REPRESENTING EXCESS COSTS INCURRED BY THE GOVERNMENT DUE TO YOUR DEFAULT UNDER CONTRACT NO. DA 11-009-QM-23896, DATED APRIL 6, 1954.

UNDER THE TERMS OF THE CONTRACT YOU AGREED TO DELIVER F.O.B. YOUR PLANT IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS 28,460 WOOD TENT PINS, 36 INCHES, TYPE III, AT $0.948 EACH, OR A TOTAL CONSIDERATION OF $26,980.08. THE RECORD SHOWS THAT UPON YOUR FAILURE TO FURNISH THE TENT PINS IN ACCORDANCE WITH SPECIFICATIONS, THE CONTRACT WAS TERMINATED AND THE REQUIRED TENT PINS WERE PURCHASED FROM ANOTHER SOURCE AT AN EXCESS COST TO THE UNITED STATES OF $3,931.28. BY LETTER DATED AUGUST 10, 1956, THE CLAIMS DIVISION OF OUR OFFICE REQUESTED YOU TO REMIT THE AMOUNT OF EXCESS COST SO INCURRED BY THE UNITED STATES.

YOU CONTEND IN EFFECT THAT A MISTAKE OCCURRED IN YOUR BID IN THAT YOU INTENDED TO SUBMIT A BID FOR ITEM 2F (A 16-INCH TENT PIN) OF THE INVITATION FOR BIDS, BUT THAT THE BID WAS OMITTED AS THE RESULT OF A COPYING ERROR; ALSO YOU CONTEND THAT YOU INTENDED TO MAKE YOUR QUOTATION ON ITEM 1B (THE 36-INCH TENT PIN) OF THE INVITATION FOR BIDS CONTINGENT UPON YOU RECEIVING AN AWARD FOR ITEM 2F (THE 16-INCH TENT PIN) BUT FAILED TO BID ON ITEM 2F. YOUR FIRST LETTER OF MARCH 29, 1954, IN REGARD TO THIS MATTER REFERRED TO "BID QM 11-009-NEG-54-11" (A REQUEST FOR PROPOSAL PRELIMINARY TO A NEGOTIATED PROCUREMENT NOT HERE INVOLVED) AND TO "BID QM 11-009-54-144" (THE INVITATION FOR BIDS HERE INVOLVED.) BIDS ON IDENTICAL ITEMS OF TENT PINS WERE INVITED IN THE TWO CASES. ON FEBRUARY 16, 1954, YOU SUBMITTED A BID IN EACH CASE. IN RESPONSE TO INVITATION NO. QM 11-009 -54-144, YOU BID A UNIT PRICE OF $0.948 ON THE 36-INCH TENT PIN (ITEM 1B) BUT YOU DID NOT SUBMIT A BID ON THE 16-INCH TENT PIN (ITEM 2F). HOWEVER ON THE NEGOTIATED PROCUREMENT INVITATION (NO. QM 11-009-NEG-54-11) YOU SUBMITTED AN IDENTICAL BID OF $0.948 EACH FOR 36-INCH TENT PINS (ITEM 1B) AND YOU QUOTED A UNIT PRICE OF $0.146 ON ITEM 2F.

THE INVITATION IN THIS CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT AS TO WHAT WAS DESIRED UNDER IT. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. YOUR CONTENTION THAT YOU SUBMITTED A BID ON ITEM 1B INTENDING TO MAKE IT CONTINGENT UPON RECEIVING AN AWARD ON ITEM 2F IS NOT SUPPORTED BY THE RECORD SINCE YOU FAILED TO BID ON ITEM 2F. HENCE, YOU MUST ASSUME THE CONSEQUENCE OF SUCH ERROR. SEE 6 COMP. GEN. 504; AND 18 COMP. GEN. 28. ANY ERROR THAT WAS MADE IN THE MATTER WAS IN NO WAY INDUCED OR CONTRIBUTED TO BE THE GOVERNMENT. THE ERROR WAS, THEREFORE, UNILATERAL--- NOT MUTUAL- -- AND DOES NOT ENTITLE YOU 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. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF YOUR 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 OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, THERE EXISTS NO LEGAL BASIS UPON WHICH YOU MAY BE RELIEVED OF THE EXCESS COSTS INCURRED BY THE GOVERNMENT BY REASON OF THE DEFAULT UNDER YOUR CONTRACT, AND THE ACTION HERETOFORE TAKEN IS SUSTAINED.