B-133677, JAN. 10, 1958

B-133677, JAN. 10, 1958

TO TRUCK-TRACTOR SALES COMPANY, INC.:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 12, 1957, WRITTEN BY T. A. NISBET, JR., TRUCK DISTRIBUTOR, GMC TRUCK AND COACH DIVISION, GENERAL MOTORS CORPORATION, CHARLOTTE, NORTH CAROLINA, IN YOUR BEHALF, AND EXPRESSING DISAGREEMENT WITH THE CONCLUSION REACHED IN OUR DECISION B- 133677, DATED SEPTEMBER 17, 1957, TO THE SECRETARY OF THE ARMY, AND REQUESTING RECONSIDERATION THEREOF.

THE DECISION OF SEPTEMBER 17, 1957, WAS WRITTEN IN RESPONSE TO ARE QUEST FROM THE SECRETARY OF THE ARMY, AS HEAD OF A DEPARTMENT OF THE UNITED STATES GOVERNMENT, FOR A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR YOU ALLEGE YOU MADE ON YOUR BID ON WHICH CONTRACT NO. DA-31-126- TC-60, DATED APRIL 16, 1957, IS BASED. CONSEQUENTLY, OUR OFFICE CAN RECONSIDER THE CONCLUSION REACHED IN THAT DECISION ONLY AT THE REQUEST OF THE SECRETARY OF THE ARMY. HOWEVER, SINCE YOU HAVE THE PRIVILEGE OF FILING A CLAIM FOR THE AMOUNT YOU BELIEVE IS DUE YOU BECAUSE OF THE ERROR IN BID, THE MATTER PRESENTED ON YOUR BEHALF WILL BE CONSIDERED AS SUCH A CLAIM.

THE INVITATION REQUESTED BIDS FOR FURNISHING, ITEM 1, A THREE QUARTER TON TRUCK AND ITEM 2B, A TWO AND ONE-HALF TON TRUCK FOUR WHEEL DRIVE. YOU SUBMITTED A BID OFFERING TO FURNISH ITEM 1 FOR $2,718 AND ITEM 2B FOR $8,452. AWARD WAS MADE TO YOU ON APRIL 16, 1957, FOR THE FURNISHING OF BOTH ITEMS. BY LETTER OF APRIL 19, 1957, YOU ADVISED THE CONTRACTING OFFICER THAT A MISTAKE HAD BEEN MADE ON ITEM 2B AND THAT YOUR BID ON THIS ITEM SHOULD HAVE BEEN $9,010.60 INSTEAD OF $8,452. YOU ALLEGE THAT THE ERROR OCCURRED BY YOUR QUOTING THE GMC CATALOG PRICE BASED ON THE PRICES OF A FRONT AXLE DRIVE UNIT FOR A ONE HALF TON TRUCK INSTEAD OF A TWO AND ONE-HALF TON TRUCK.

THE OTHER BIDS RECEIVED ON ITEM 2B WERE $9,636.27, $9,747.06 AND $10,049.52. THE PURCHASING OFFICE REPORTED THAT THE GOVERNMENT'S ESTIMATED PRICE FOR THE TYPE OF TRUCK INVOLVED WAS $5,400 BASED ON AN ENGINEER PRICING GUIDE DATED JULY 1955. ALSO, IT WAS REPORTED THAT IT WAS NOT FEASIBLE THAT THE CONTRACTING OFFICER COULD HAVE BEEN PUT ON NOTICE OF THE ERROR PRIOR TO AWARD BECAUSE NO EXPERIENCE FACTORS WERE AVAILABLE AT THAT TERMINAL. IN VIEW THEREOF, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID. THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICES QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 U.S. 645.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN IN THE MATTER IN DENYING YOUR CLAIM IS AFFIRMED.