B-127297, JUN. 6, 1956
Highlights
TO FRAMINGHAM SHOE COMPANY: REFERENCE IS MADE TO A LETTER DATED MAY 11. CONSIDERED AN ERROR WHICH YOU ALLEGED WAS MADE IN YOUR BID FOR THE PURCHASE OF VARIOUS ITEMS OF SUCH SHOES AND BOOTS. THE DECISION WAS SUBSEQUENTLY RECONSIDERED AND. YOU WERE ADVISED THAT WE PERCEIVED NO LEGAL BASIS FOR ANY CHANGE IN THE CONCLUSION REACHED. IT APPEARS TO BE YOUR CONTENTION THAT YOUR BID ON THE SHOES AND BOOTS WAS DEFINITELY OUT OF LINE WITH THE OTHER BIDS SUBMITTED SO AS HAVE CONSTITUTED CONSTRUCTIVE NOTICE TO THE CONTRACTING OFFICER OF THE PROBABILITY OF ERROR. AS WAS STATED IN THE BASIC DECISION. THE CONTROLLING QUESTION IS NOT WHETHER YOU MADE A MISTAKE IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ACCEPTANCE OF YOUR BID.
B-127297, JUN. 6, 1956
TO FRAMINGHAM SHOE COMPANY:
REFERENCE IS MADE TO A LETTER DATED MAY 11, 1956, IN WHICH YOUR ATTORNEY, MR. CARL D. EPSTEIN, REQUESTS IN YOUR BEHALF RECONSIDERATION OF DECISION OF MARCH 30, 1956, B-127297, TO THE SECRETARY OF THE ARMY, CONCERNING YOUR CLAIM WHICH AROSE OUT OF THE PURCHASE OF USED MEN'S AND WOMEN'S LOW QUARTER SHOES AND COMBAT BOOTS FROM THE PROPERTY DISPOSAL DIVISION, FORT SAM HOUSTON, TEXAS, PURSUANT TO AWARDS MADE ON ITEMS 12, 14, 35, 41, AND 48 OF SALE INVITATION NO. 40-133-S-56-9.
THE DECISION OF MARCH 30, 1956, CONSIDERED AN ERROR WHICH YOU ALLEGED WAS MADE IN YOUR BID FOR THE PURCHASE OF VARIOUS ITEMS OF SUCH SHOES AND BOOTS. THE DECISION HELD, FOR THE REASONS STATED THEREIN, THAT YOU LEGALLY COULD NOT BE RELIEVED OF YOUR OBLIGATION UNDER THE CONTRACT. THE DECISION WAS SUBSEQUENTLY RECONSIDERED AND, BY LETTER OF APRIL 10, 1956, YOU WERE ADVISED THAT WE PERCEIVED NO LEGAL BASIS FOR ANY CHANGE IN THE CONCLUSION REACHED.
IT APPEARS TO BE YOUR CONTENTION THAT YOUR BID ON THE SHOES AND BOOTS WAS DEFINITELY OUT OF LINE WITH THE OTHER BIDS SUBMITTED SO AS HAVE CONSTITUTED CONSTRUCTIVE NOTICE TO THE CONTRACTING OFFICER OF THE PROBABILITY OF ERROR. AS WAS STATED IN THE BASIC DECISION, THE CONTROLLING QUESTION IS NOT WHETHER YOU MADE A MISTAKE IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ACCEPTANCE OF YOUR BID. ON THE BASIS OF THE FACTS REPORTED, AS PREVIOUSLY EXPLAINED, IT WAS DETERMINED THAT YOUR BID WAS ACCEPTED IN GOOD FAITH. THEREFORE, SINCE NO NEW OR MATERIAL EVIDENCE HAS BEEN FURNISHED BY YOU, THERE IS NO BASIS TO JUSTIFY A DIFFERENT CONCLUSION IN THE MATTER.
IT MIGHT AGAIN BE EMPHASIZED, THAT, WHERE AN ERROR IS NOT ALLEGED UNTIL AFTER AWARD, RELIEF LEGALLY MAY NOT BE GRANTED THE BIDDER EVEN IF THE RECORD SHOWS WITHOUT DOUBT THAT AN ERROR WAS MADE AS ALLEGED, UNLESS IT CAN BE SHOWN THAT THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON NOTICE OF THE ERROR AT THE TIME OF THE ACCEPTANCE OF THE BID. WHERE, AS IN THIS CASE, THE FACTS ARE SUCH THAT THE CONTRACTING OFFICER PROPERLY MAY NOT BE CHARGED WITH SUCH NOTICE, UNDER THE APPLICABLE DECISIONS OF THE COURTS AND OUR OFFICE THE CONCLUSION IS REQUIRED THAT ACCEPTANCE OF THE BID BY THE CONTRACTING OFFICER CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.
ACCORDINGLY, WE MUST ADHERE TO THE CONCLUSION PREVIOUSLY REACHED IN THIS MATTER.