B-114009, AUG 27, 1953

B-114009, AUG 27, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED JUNE 11, 1953, WITH ENCLOSURES, FROM THE DEPUTY DIRECTOR OF FINANCE, FURNISHING THE REPORT REQUESTED IN OFFICE LETTER OF MARCH 11, 1953, RELATIVE TO AN ERROR ALLEGED BY HOFFMAN SPECIALTY MFG. CORP. TO HAVE BEEN MADE IN ITS BID DATED DECEMBER 3, 1952, ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER NO. (33 601) 53-5594-RU) DATED DECEMBER 22, 1952, WAS BASED.

THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO, BY INVITATION NO. (IFB) 33-601 -53-92, REQUESTED BIDS - TO BE OPENED DECEMBER 15, 1952 - FOR FURNISHING VARIOUS SUPPLIES INCLUDING ITEM NO. 72 DESCRIBED AS FOLLOWS:

"4BXU-NL TRAP, STEAM THERMOSTATIC, ANGLE PATTERN, 15 LB. PRESSURE, 1/2" IPS WITH TAIL-PIECE AND UNION, HOFFMAN SPECIALITY CO., 17C OR EQUAL." RESPONSE THERETO, HOFFMAN SPECIALTY MFG. CORP. SUBMITTED A BID IN WHICH IT OFFERED TO FURNISH ITEM NO. 72 FOR $2.15 EACH. THE BID WAS ACCEPTED AS TO SAID ITEM ON DECEMBER 22, 1952.

BY LETTER DATED DECEMBER 31, 1952, THE CORPORATION ADVISED THAT IT HAD MADE AN ERROR IN ITS BID IN THAT THE BID PRICE OF $2.15 EACH COVERED ONLY THE THERMOSTATS FOR THE TRAP, AND THAT THE CORRECT UNIT PRICE FOR THE COMPLETE EQUIPMENT IS $3.32. PERMISSION WAS REQUESTED THEREIN TO INVOICE THE TRAPS AT THE ALLEGED CORRECT PRICE. THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT HE LACKED AUTHORITY TO GRANT THE REQUEST FOR A PRICE INCREASE, BUT THAT AFTER DELIVERY THE QUESTION AS TO WHETHER IT WAS ENTITLED TO RELIEF COULD BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR A DECISION. IN A LETTER DATED FEBRUARY 13, 1953, TO THIS OFFICE THE CONTRACTOR STATED THAT DELIVERY OF THE EQUIPMENT HAD BEEN COMPLETED AND PAYMENT HAD BEEN MADE THEREFOR AT THE CONTRACT PRICE AND REQUESTED THAT PAYMENT OF THE ADDITIONAL COMPENSATION PREVIOUSLY REQUESTED BE AUTHORIZED. NO EVIDENCE WAS FURNISHED BY THE CONTRACTOR TO SUBSTANTIATE ITS ALLEGATION OF ERROR OR TO ESTABLISH ITS INTENDED BID PRICE.

THE BASIC QUESTION FOR DETERMINATION IS NOT WHETHER THE CORPORATION MADE AN ERROR IN THE PREPARATION OF ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. NO ERROR WAS APPARENT ON THE FACE OF THE BID. THE CONTRACTING OFFICER STATES THAT NO ERROR IN THE CORPORATION'S UNIT PRICE BID OF $2.15 ON ITEM NO. 72 WAS SUSPECTED SINCE THE CORPORATION IS THE MANUFACTURER OF THE ARTICLE, WHEREAS, THE EIGHT OTHER BIDS THEREON, RANGING FROM $2.96 TO $4.43 EACH, WERE SUBMITTED BY JOBBERS OR DEALERS. THE DIFFERENCE BETWEEN THE CONTRACTOR'S BID AND THE OTHERS RECEIVED ON ITEM NO. 72 IS NOT SO GREAT AS TO WARRANT THE CONCLUSION - CONTRARY TO THE ABOVE STATEMENT - THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF AN ERROR IN THE BID. THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE CONTRACTOR'S BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE 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 AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF A BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. IF, AS ALLEGED IN ITS LETTER, THE CORPORATION QUOTED A PRICE FOR THE THERMOSTAT ONLY FOR THE TRAP, INSTEAD OF THE PRICE OF ITS 17C STEAM THERMOSTATIC TRAP WHICH WAS CLEARLY SPECIFIED IN THE INVITATION, SUCH ERROR WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE BIDDER AND NOT TO ANY FAILURE OF THE GOVERNMENT TO FURNISH SUFFICIENT INFORMATION AS TO EQUIPMENT REQUIRED. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. SUCH ERROR AS WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND THEREFORE DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507; AND OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259.

ACCORDINGLY, ON THE FACTS OF RECORD, THERE APPEARS NO LEGAL BASIS FOR AUTHORIZING PAYMENT TO THE CONTRACTOR OF ANY AMOUNT IN EXCESS OF THE PRICE SPECIFIED IN THE CONTRACT.