B-112624, MAY 27, 1953

B-112624, MAY 27, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER OF APRIL 6, 1953, WITH ENCLOSURES, FROM THE OFFICE, DEPUTY DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, CONCERNING A LETTER OF AUGUST 20, 1952, FROM HEILAND RESEARCH CORPORATION, 130 EAST FIFTH AVENUE, DENVER, COLORADO, WHEREIN IT WAS ALLEGED THAT AN ERROR WAS MADE IN QUOTING ON ITEM 1 OF THE COMPANY'S BID DATED DECEMBER 11, 1951, ON WHICH CONTRACT NO. AF 33(601)-513 WAS AWARDED.

BY INVITATION WF-52-2641, THE BASE CONTRACTING SECTION, WRIGHT PATTERSON AIR FORCE BASE, DAYTON, OHIO, REQUESTED BIDS - TO BE OPENED DECEMBER 17, 1951 - FOR FURNISHING GALVANOMETERS AND GALVANOMETER LENS ASSEMBLIES. RESPONSE TO THE INVITATION, THE HEILAND RESEARCH CORPORATION SUBMITTED A BID OFFERING TO FURNISH ITEM 1, 50 GALVANOMETERS, WITH TWO-LENS ASSEMBLY FOR $90 EACH, AND ITEM 2, 100 GALVANOMETER LENS ASSEMBLIES FOR $12.50 EACH. THE BID OF THE COMPANY WAS ACCEPTED ON DECEMBER 29, 1951.

IN A REPORT FROM THE CONTRACTING OFFICE DATED FEBRUARY 17, 1953, IT IS STATED THAT DELIVERY UNDER ITEM 1 WAS COMPLETED ON OR ABOUT APRIL 15, 1952; THAT ON OR ABOUT MAY 28, 1952, 50 LENS ASSEMBLIES AS CALLED FOR IN ITEM 2 WERE RECEIVED AND RECEIPT ACKNOWLEDGED ON RECEIVING REPORT 52- 476300; THAT SUBSEQUENT INQUIRIES WERE MADE TO THE CONTRACTOR REGARDING DELIVERY OF 50 LENS ASSEMBLIES DUE IN CONNECTION WITH ITEM 2 OF THE CONTRACT; THAT AFTER SEVERAL INQUIRIES OF THIS NATURE THE CONTRACTOR ADVISED BY LETTER OF JULY 22, 1952, THAT ACCORDING TO HIS INTERPRETATION OF THE CONTRACT HE HAD COMPLETED PERFORMANCE IN THAT HE HAD SHIPPED A TOTAL OF 100 LENS ASSEMBLIES; THAT THE CONTRACTOR WAS INFORMED THAT THE INTENT AND INTERPRETATION OF THE CONTRACT WAS THAT A LENS ASSEMBLY WAS A PART OF ITEM 1, THUS A TOTAL OF 150 LENS ASSEMBLIES WERE REQUIRED UNDER THE CONTRACT; THAT THE CONTRACTOR REQUESTED THAT THE CONTRACT BE TERMINATED AS TO THE UNDELIVERED QUANTITY OF 50 LENS ASSEMBLIES UNDER ITEM 2; AND THAT SUPPLEMENT AGREEMENT NO. 2, DATED NOVEMBER 12, 1952, REDUCING THE QUANTITY OF ITEM 2 TO 50 ASSEMBLIES, AT A CREDIT TO THE GOVERNMENT OF $625, WAS ISSUED AND ACCEPTED BY THE CONTRACTOR.

IN LETTER OF JULY 22, 1952, TO THE BASE PROCUREMENT OFFICE, THE CONTRACTOR STATED, IN PART, AS FOLLOWS:

"*** OUR INTERPRETATION WAS FOR ONLY 100 LENS TURRETS AND THAT 50 OF ITEM 2 WOULD BE INSTALLED ON ITEM 1. HAD WE INTERPRETED ITEM 1 TO INCLUDE 50 LENS TURRETS, WE WOULD HAVE HAD TO INCREASE THE PRICE BY $12.50 PER UNIT, THE COST OF THE TURRETS."

IT IS REPORTED THE BID OF THE CONTRACTOR WAS THE ONLY RESPONSIVE BID RECEIVED AND THAT THE CONTRACTING OFFICER HAD NO REASON TO SUSPECT ANY ERROR IN THE CONTRACTOR'S BID.

WHILE IT MAY BE CONCEDED THAT THE CONTRACTOR, THROUGH HIS OWN INEXACTNESS, OVERLOOKED THE REQUIREMENT OF THE SPECIFICATIONS THAT LENS ASSEMBLIES WERE TO BE FURNISHED ON THE GALVANOMETERS UNDER ITEM 1, IT ALSO MUST BE CONCEDED THAT THE BID WAS ACCEPTED IN GOOD FAITH BY THE GOVERNMENT WITHOUT NOTICE OF ERROR. THE COURTS HAVE HELD REPEATEDLY THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE PREPARATION OF ITS BID, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE BE MUTUAL OR THE ERROR IS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 251; SALIGMAN, ET AL. V. UNITED STATES, 56 F. SUPP. 505, AND CASES THEREIN CITED.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID TO CONFORM WITH THE SPECIFICATIONS IN ALL OF ITS PHASES RESTS UPON THE CONTRACTOR. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. AS STATED IN THE CASE OF GRYMES V. SANDERS, ET AL., 93 U.S. 55, "MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE, WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE." SO, IN THIS CASE, IT IS ABUNDANTLY CLEAR THAT THE MEANS OF ASCERTAINING THE FACT THAT LENS ASSEMBLIES WERE TO BE FURNISHED ON THE GALVANOMETER UNDER ITEM 1 WERE EASILY ACCESSIBLE. ALSO, THE COURTS HAVE HELD THAT NOTHING IN THE NATURE OF A TRADE CUSTOM, PRACTICE, OR USAGE MAY BE INVOKED TO VARY OR CONTRADICT THE TERMS OF A CONTRACT WITH THE UNITED STATES. MOORE V. UNITED STATES, 196 U.S. 157; NATIONAL BANK V. BURKHARDT, 100 U.S. 686.

ACCORDINGLY, UPON THE BASIS OF THE FACTS OF RECORD, I FIND NO LEGAL JUSTIFICATION FOR PAYMENT FOR THE GALVANOMETERS AND LENS ASSEMBLIES ON ANY BASIS OTHER THAN AS PROVIDED IN THE CONTRACT.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF FACTS AND RECOMMENDATION DATED FEBRUARY 17, 1953, ARE RETURNED HEREWITH.