B-124751, NOV. 4, 1955

B-124751: Nov 4, 1955

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TO CENTRAL FUEL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22. THAT THE PARTY IN YOUR ORGANIZATION WHO PREPARED YOUR BID WAS WILLING TO TESTIFY UNDER OATH THAT HE MADE AN ERROR. THAT YOU HAVE IN YOUR FILES AN ACCEPTANCE BY THE ARMED SERVICES PETROLEUM PURCHASING AGENCY OF THE ESCALATOR PRICE OF $ .0838 FOR THE ITEMS OF FUEL OIL AWARDED YOU. WHICH ACCEPTANCE IS IDENTIFIED OTHERWISE AS "ASPPA 24/DG/ASP-12515. " BUT THAT YOU HAVE NOT RECEIVED ANY INCREASE IN THE AMOUNTS PAID TO YOU OVER YOUR QUOTED BID PRICE OF ?0817 PER GALLON FOR EACH OF ITEMS NOS. 1146 AND 1147. HERE THE MISTAKE WAS ATTRIBUTABLE SOLELY TO YOUR OWN FAULT. THE FACT THAT YOUR BID WAS PREPARED BY AN EMPLOYEE WHO HAD NOT PREVIOUSLY PERFORMED SUCH WORK WOULD SEEM TO HAVE CALLED FOR GREATER CARE ON YOUR PART IN CHECKING THE BID BEFORE SIGNING IT.

B-124751, NOV. 4, 1955

TO CENTRAL FUEL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 22, 1955, IN EFFECT REQUESTING RECONSIDERATION OF OUR DECISION OF SEPTEMBER 19, 1955, WHEREIN WE DENIED YOUR REQUEST FOR A MODIFICATION OF THE PRICE ESCALATOR TERMS OF YOUR CONTRACT NO. ASP-12515, AWARDED YOU ON APRIL 19, 1955, BY THE ARMED SERVICES PETROLEUM PURCHASING AGENCY.

YOU ALLEGE, IN SUBSTANCE, THAT THE PARTY IN YOUR ORGANIZATION WHO PREPARED YOUR BID WAS WILLING TO TESTIFY UNDER OATH THAT HE MADE AN ERROR, AND FURTHER, THAT YOU HAVE IN YOUR FILES AN ACCEPTANCE BY THE ARMED SERVICES PETROLEUM PURCHASING AGENCY OF THE ESCALATOR PRICE OF $ .0838 FOR THE ITEMS OF FUEL OIL AWARDED YOU, WHICH ACCEPTANCE IS IDENTIFIED OTHERWISE AS "ASPPA 24/DG/ASP-12515, IFB 55-80, CHANGE NO. 1, 19 JULY 1955," BUT THAT YOU HAVE NOT RECEIVED ANY INCREASE IN THE AMOUNTS PAID TO YOU OVER YOUR QUOTED BID PRICE OF ?0817 PER GALLON FOR EACH OF ITEMS NOS. 1146 AND 1147.

AS EXPLAINED IN OUR DECISION OF SEPTEMBER 19, A MUTUAL MISTAKE--- ONE MADE BY BOTH PARTIES TO THE AGREEMENT--- AFFORDS THE ONLY LEGAL JUSTIFICATION FOR THE MODIFICATION OF THE TERMS OF A VALID CONTRACT. SEE 26 COMP. GEN. 899, AND THE AUTHORITIES THERE CITED. HERE THE MISTAKE WAS ATTRIBUTABLE SOLELY TO YOUR OWN FAULT, AND THE FACT THAT YOUR BID WAS PREPARED BY AN EMPLOYEE WHO HAD NOT PREVIOUSLY PERFORMED SUCH WORK WOULD SEEM TO HAVE CALLED FOR GREATER CARE ON YOUR PART IN CHECKING THE BID BEFORE SIGNING IT. IN ANY CASE, THE ERROR WAS UNILATERAL IN THAT IT WAS NEITHER KNOWN TO NOR SUSPECTED BY THE GOVERNMENT CONTRACTING OFFICER AT THE TIME OF THE AWARD. IN THE CIRCUMSTANCES, THE GOVERNMENT'S ACCEPTANCE OF YOUR PROPOSAL IN GOOD FAITH RESULTED IN A BINDING CONTRACT AND OBLIGATED YOU TO PERFORM STRICTLY IN ACCORDANCE WITH ITS TERMS. GARFIELDE V. UNITED STATES, 93 U.S. 242. IMMEDIATELY UPON THE ACCEPTANCE OF YOUR PROPOSAL, THERE ACCRUED TO THE UNITED STATES THE UNEQUIVOCAL RIGHT TO ORDER AND TO RECEIVE THE REQUIRED QUANTITIES OF FUEL OIL AT A PRICE NOT IN EXCESS OF YOUR QUOTED BID PRICE ON ITEMS NOS. 1146 AND 1147, AND NONE OF THE OFFICERS OR AGENTS OF THE GOVERNMENT POSSESSES THE AUTHORITY TO WAIVE OR GRATUITOUSLY TO SURRENDER THAT RIGHT. SEE BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584. NEITHER DOES THE CONSIDERATION OF HARDSHIP AFFORD LEGAL JUSTIFICATION FOR RELIEVING A CONTRACTOR FROM THE OBLIGATION IMPOSED BY HIS CONTRACT. SEE FEDERAL CROP INS. CORP. V. MERRILL, 332 U.S. 280.

THEREFORE, WE MUST CONCLUDE THAT THERE EXISTS NO PROPER LEGAL BASIS FOR REFORMING YOUR CONTRACT PREJUDICIALLY TO THE INTEREST OF THE UNITED STATES, AS YOU HAVE REQUESTED. WE HAVE BEEN INFORMALLY ADVISED THAT THE "CHANGE NO. 1" REFERRED TO BY YOU WAS IMMEDIATELY WITHDRAWN BY THE ADMINISTRATIVE OFFICE AS HAVING BEEN INADVERTENTLY ISSUED.

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