B-124751, SEP. 19, 1955

B-124751: Sep 19, 1955

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TO CENTRAL FUEL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 18. RELATING TO AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON ITEMS 1146 AND 1147 ON INVITATION FOR BIDS NO. 55-80. WHICH WAS ACCEPTED ON APRIL 19. IT WAS STATED IN YOUR LETTER OF APRIL 25. THAT IN SUBMITTING YOUR BID IN THIS CASE IT WAS YOUR INTENTION THAT THE ESCALATION CLAUSE WOULD BE APPLICABLE TO ALL OF THE AMOUNTS QUOTED IN YOUR BID. THAT IT WAS YOUR THOUGHT THAT THIS CLAUSE APPLIED TO YOUR BIDS INCREASING OR DECREASING YOUR BID PRICE IF THE MARKET CHANGED BETWEEN THE TIME (DATE) OF THE CONTRACT AND THE TIME OF DELIVERY. INVITATION FOR BIDS NO. 55-80 WAS ISSUED BY THE ARMED SERVICES PETROLEUM PURCHASING AGENCY REQUESTING BIDS ON VARIOUS PETROLEUM PRODUCTS REQUIRED BY THE ARMED SERVICES DURING THE PERIOD MAY 1 THROUGH OCTOBER 31.

B-124751, SEP. 19, 1955

TO CENTRAL FUEL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1955, WITH ENCLOSURES, RELATING TO AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON ITEMS 1146 AND 1147 ON INVITATION FOR BIDS NO. 55-80, ISSUED BY THE ARMED SERVICES PETROLEUM PURCHASING AGENCY, AND WHICH WAS ACCEPTED ON APRIL 19, 1955.

IT WAS STATED IN YOUR LETTER OF APRIL 25, 1955, TO THE ARMED SERVICES PETROLEUM PURCHASING AGENCY, THAT IN SUBMITTING YOUR BID IN THIS CASE IT WAS YOUR INTENTION THAT THE ESCALATION CLAUSE WOULD BE APPLICABLE TO ALL OF THE AMOUNTS QUOTED IN YOUR BID, AND THAT IT WAS YOUR THOUGHT THAT THIS CLAUSE APPLIED TO YOUR BIDS INCREASING OR DECREASING YOUR BID PRICE IF THE MARKET CHANGED BETWEEN THE TIME (DATE) OF THE CONTRACT AND THE TIME OF DELIVERY.

UNDER DATE OF JANUARY 21, 1955, INVITATION FOR BIDS NO. 55-80 WAS ISSUED BY THE ARMED SERVICES PETROLEUM PURCHASING AGENCY REQUESTING BIDS ON VARIOUS PETROLEUM PRODUCTS REQUIRED BY THE ARMED SERVICES DURING THE PERIOD MAY 1 THROUGH OCTOBER 31, 1955. IN RESPONSE TO THIS INVITATION YOU SUBMITTED BIDS ON CERTAIN ITEMS AND AS A RESULT YOU WERE AWARDED CONTRACT NO. ASP-12515 COVERING ITEMS 1146 AND 1147 PROVIDING FOR THE DELIVERY OF NO. 5 FUEL OIL BY TANK WAGON TO THE BAINBRIDGE NAVAL TRAINING CENTER AT A UNIT PRICE OF $0.0817 PER GALLON.

COLUMN VII OF THE REFERENCE PRICE TABULATION OF THE INVITATION FORM IS FOR THE PURPOSE OF LISTING THE MAXIMUM BILLING PRICE PAYABLE FOR THE ITEMS IN SECTION II OF THE SCHEDULE. IN THAT COLUMN YOU INSERTED THE WORD "SAME" WHICH YOU ALLEGE WAS INTENDED TO MEAN THAT THE MAXIMUM PRICE PAYABLE WOULD BE THE BID PRICE INCREASED OR DECREASED BY THE AMOUNT OF ANY CHANGE IN THE REFERENCE PRICE. THE SPECIAL INSTRUCTIONS CONCERNING ALTERNATE BIDS AND PRICE ESCALATION SET FORTH IN PARAGRAPH FIVE THE MANNER IN WHICH BIDDERS WERE TO FILL IN COLUMN VII OF THE REFERENCE PRICE TABULATION. THAT PARAGRAPH STATES THAT "THOSE BIDDERS DESIRING TO MAKE A MAXIMUM PRICE OFFER EQUAL TO THE PRICE BID ON THE DATE OF BID WITH DOWNWARD ESCALATION ONLY SHOULD ENTER THE WORDS ,SAME AS PRICE BID" IN COLUMN VII OF THE "REFERENCE PRICE" TABULATION.' THAT PARAGRAPH FURTHER STATES THAT "THOSE BIDDERS DESIRING TO OFFER AN ESCALATED BID WITH NO CEILING SHOULD LEAVE COLUMN VII OF SUCH TABULATION BLANK.' IN ACCORDANCE WITH THOSE INSTRUCTIONS IT APPEARS THAT IF YOUR COMPANY HAD DESIRED TO OFFER AN ESCALATED BID WITHOUT A CEILING YOU SHOULD HAVE LEFT COLUMN VII BLANK INSTEAD OF INSERTING THE WORK "SAME" WHICH WAS UNDERSTOOD BY THE CONTRACTING OFFICER AS THE ACCEPTED ABBREVIATION OF "SAME AS PRICE BID.'

THERE HAS BEEN OBTAINED FROM THE ARMED SERVICES PETROLEUM PURCHASING AGENCY A REPORT IN THIS CASE, INCLUDING AN ABSTRACT OF THE BIDS RECEIVED, WHICH REVEALS THAT YOUR BID WAS IN LINE WITH THE OTHER BIDS RECEIVED. THE CONTRACTING OFFICER REPORTS THAT, SINCE YOUR COMPANY USED THE ACCEPTED ABBREVIATION OF "SAME AS PRICE BID" AND SINCE YOUR BIDS WERE IN LINE WITH THE OTHER BIDS RECEIVED, THERE WAS NOTHING ON THE FACE OF THE BID OR IN THE SURROUNDING CIRCUMSTANCES TO PUT HIM ON NOTICE THAT YOU DID NOT INTEND YOUR BID PRICE TO BE MAXIMUM WITH DOWNWARD ESCALATION ONLY.

IN THE REPORT OF FACTS FURNISHED THIS OFFICE BY THE CONTRACTING OFFICER IT IS STATED THAT YOUR COMPANY HAS BEEN A REGULAR BIDDER ON THE AGENCY'S INVITATIONS FOR BIDS FOR A NUMBER OF YEARS AND HAS BEEN AWARDED CONTRACTS IN THE PAST (ASP-3737, 4972, AND 5086), AND THAT IN EACH OF THESE CONTRACTS YOUR COMPANY PROVIDED FOR A DIFFERENT TYPE OF ESCALATION, THEREBY SHOWING YOUR FAMILIARITY WITH THE PROVISIONS RELATING TO THE PREPARATION OF THE PRICE ESCALATION FORM. THE CONTRACTING OFFICER SPECIFICALLY POINTED OUT THAT IN CONTRACT NO. ASP 5086 YOUR COMPANY USED THE TERM "SAME AS PRICE BID" IN COLUMN VII OF THE REFERENCE PRICE TABULATION TO PROVIDE FOR A MAXIMUM PRICE EQUAL TO THE PRICE BID WITH DOWNWARD ESCALATION ONLY. IT THUS APPEARS THAT YOUR COMPANY IS FAMILIAR WITH THE INSTRUCTIONS CONTAINED IN THE INVITATION TO BID.

THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THE CONTRACTING OFFICER HAS REPORTED, IN EFFECT, THAT HE WAS NOT ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID PRIOR TO AWARD. IT SEEMS EVIDENT THAT IF AN ERROR WAS MADE IN THIS CASE, AS ALLEGED, IT MAY PROPERLY BE ATTRIBUTED TO YOUR NEGLIGENCE AND SINCE SUCH ERROR WAS UNILATERAL, NOT MUTUAL, YOU ARE NOT ENTITLED TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 192 C.CLS. 249, 259; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. IN THE CIRCUMSTANCES, IT MUST BE HELD THAT THE ACCEPTANCE OF YOUR BID CONSTITUTED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES TO THE 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.

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