B-110403, NOV 10, 1952

B-110403, NOV 10, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER OF SEPTEMBER 23, 1952, WITH ENCLOSURES, FROM THE OFFICE, DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, CONCERNING A LETTER OF JUNE 16, 1952, FROM GRINNELL COMPANY, 615 SEVENTH STREET, SACRAMENTO, CALIFORNIA, WHEREIN IT WAS ALLEGED THAT AN ERROR WAS MADE IN QUOTING ON ITEM 507 OF THE COMPANY'S BID DATED FEBRUARY 28, 1952, ON WHICH CONTRACT NO. AF04(606)-1330 WAS AWARDED.

BY INVITATION 34B-52-19196, THE PROCUREMENT OFFICE, MCCLELLAN AIR FORCE BASE, MCCLELLAN, CALIFORNIA, REQUESTED BIDS - TO BE OPENED MARCH 4, 1952 - FOR FURNISHING CERTAIN PLUMBING SUPPLIES. IN RESPONSE TO THE INVITATION, THE GRINNELL COMPANY SUBMITTED A BID OFFERING TO FURNISH SEVERAL ITEMS INCLUDING ITEM 507 COVERING 14 WASHOUT VITREOUS CHINA URINALS, COMPLETE WITH FLUSH VALVE AND FITTINGS, AT $57.29 EACH. THE BID OF THE COMPANY WAS ACCEPTED ON MAY 9, 1952, AS TO SEVERAL ITEMS INCLUDING ITEM 507.

IN A LETTER OF JUNE 16, 1952, TO THIS OFFICE, THE COMPANY STATED, IN PART, AS FOLLOWS:

"*** WE ARE ENCLOSING THE FOLLOWING DATA FOR CLAIM ON ITEM #507 PAGE 8 OF BID REQUEST 34B-52-19196. WE WERE AWARDED ABOVE MENTIONED ITEM ON CONTRACT NUMBER AF04(606)1330. AS YOU WILL NOTE ON ITEM #507 ON PHOTOSTATIC COPY OF OUR WORK SHEET, THAT WE QUOTED ON FEDERAL SPECIFICATION #V-18W URINAL, WHICH IS URINAL WITH FLUSH VALVE, LESS URINAL CARRIER DUE TO THE INDEFINITE DELIVERY ON CARRIERS. OUR TYPIST UPON TRANSPOSING INFORMATION FROM WORK COPY TO QUOTATION COPY NEGLECTED TO DELETE THE LETTER 'F' WHICH IS URINAL COMPLETE WITH FLUSH VALVE AND URINAL CARRIER.

"WE HAVE ALSO ENCLOSED PER MR. OLLIS' INSTRUCTIONS QUOTATIONS FROM MANUFACTURERS SHOWING OUR NET COST WHICH IS AS FOLLOWS:

F-6200 WASHOUT URINAL 37.20 EA NET SLOAN 'ROYAL' #186 FLUSH VALVE 12.00 EA NET BLAKE #1-1850

URINAL CARRIERS 20.77 EA NET

"OUR TOTAL NET COST ON THE THREE ITEMS IS $69.97. DUE TO THE FACT THAT WE ARE FURNISHING THE MATERIAL AS SPECIFIED, WE WOULD APPRECIATE ANY ADJUSTMENT YOU CAN MAKE IN OUR FAVOR TO SUBSTANTIATE THE DIFFERENCE BETWEEN OUR COST FOR THE MATERIAL WHICH IS $69.97 AND OUR QUOTED PRICE OF $57.29."

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER THE GRINNELL COMPANY MADE AN ERROR IN ITS BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE ABSTRACT OF BIDS SHOWS THAT SIX OTHER BIDS WERE RECEIVED ON ITEM 507 RANGING FROM $69.06 EACH TO $80 EACH. IN AN INDORSEMENT DATED AUGUST 1, 1952, IT IS STATED THAT THE CONTRACTING OFFICER DID NOT HAVE ANY REASON TO NOTICE, OR SUSPECT, ANY ERROR IN THE BID OF THE COMPANY PRIOR TO AWARD. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED ITS WORK SHEET AND CERTAIN QUOTATIONS OF ITS SUPPLIERS IN SUPPORT OF ITS ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID PRICE. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH - NO ERROR HAVING BEEN ALLEGED BY THE COMPANY UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING & REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C. CLS. 120, 163. IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN THE BID OF THE COMPANY WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, AND THE CASES CITED THEREIN. ALSO, SEE 20 COMP. GEN. 652; AND 26 ID. 415.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR AUTHORIZING AN INCREASE IN THE PRICE OF THE URINALS COVERED BY CONTRACT NO. AF 04(606)-1330 BY REASON OF THE ERROR ALLEGED BY THE GRINNELL COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH SAID CONTRACT WAS AWARDED.