B-115730, SEP 11, 1953

B-115730, SEP 11, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER OF AUGUST 25, 1953, WITH ENCLOSURES, FROM THE DEPUTY DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, IN REPLY TO A LETTER OF JUNE 17, 1953, WITH WHICH THERE WAS FORWARDED FOR REPORT A LETTER OF JUNE 5, 1953, FROM ANTHIS INDUSTRIAL RUBBER SUPPLY COMPANY, REQUESTING THAT THIS OFFICE AUTHORIZE AN INCREASE IN THE PRICE SPECIFIED IN CONTRACT NO. AF 30(602)-634, DATED APRIL 17, 1953, OR THAT THE CONTRACT BE CANCELED.

BY INVITATION NO. IFB 30-602-53-118, DATED MARCH 18, 1953, THE PURCHASING AND CONTRACTING OFFICE, GRIFFISS AIR FORCE BASE, REQUESTED BIDS - TO BE OPENED APRIL 8, 1953 - FOR 2,500 ROLLS OF "TAPE, ADHESIVE, PRESSURE SENSITIVE, WATER RESISTANT, TRANSPARENT 3 IN. WIDE, 72 YD. ROLL, TYPE 3, GRADE B, SPEC. JAN-P-127, MINNESOTA MINING #711 OR EQUAL (6750-816300)." IN RESPONSE TO THE INVITATION, ANTHIS INDUSTRIAL RUBBER SUPPLY COMPANY SUBMITTED A BID IN WHICH IT OFFERED TO FURNISH TAPE AT $2.16 PER ROLL, LESS A DISCOUNT OF 2 PERCENT FOR PAYMENT IN 10 DAYS. THE ABSTRACT OF BIDS SHOWS THAT THE PRICES QUOTED BY THE EIGHT OTHER BIDDERS WERE $2.94, $3.49, $5.296, $5.30, $5.327, $5.40, $5.53, AND $5.53, RESPECTIVELY.

THE CONTRACTING OFFICER HAS REPORTED THAT IN VIEW OF HIS KNOWLEDGE OF THE TYPE OF TAPE INVOLVED AND OF THE DIFFERENCE IN THE PRICES QUOTED, HE SUSPECTED ERROR IN THE BID SUBMITTED BY ANTHIS INDUSTRIAL RUBBER SUPPLY COMPANY. BY TELEGRAM OF APRIL 10, 1953, THE COMPANY WAS REQUESTED TO VERIFY ITS BID PRICE AND FURNISH A SAMPLE OF THE TAPE IT PROPOSED TO FURNISH, IF OTHER THAN MINNESOTA #711. BY TELEGRAM OF APRIL 13, 1953, THE COMPANY REPLIED THAT IT PROPOSED TO FURNISH MINNESOTA #711 AND THAT THE PRICE OF $2.16 PER ROLL QUOTED IN ITS BID WAS CORRECT. THE COMPANY'S BID WAS ACCEPTED AS THE LOWEST RECEIVED ON APRIL 17, 1953, AND THE CONTRACTING OFFICER HAS REPORTED THAT THE CONTRACT WAS MAILED TO THE COMPANY ON THAT DATE.

BY TELEGRAM OF APRIL 20, 1953, AND LETTER OF APRIL 21, 1953, THE COMPANY ALLEGED ERROR IN ITS BID IN THAT IT HAD OVERLOOKED THE REQUIREMENT FOR TAPE 3 INCHES IN WIDTH AND, THEREFORE, THAT THE PRICE QUOTED IN ITS BID COVERED TAPE 1 INCH IN WIDTH. ASSERTING THAT ITS BID PRICE SHOULD HAVE BEEN $5.40 PER ROLL, THE COMPANY REQUESTED THAT THE CONTRACT BE AMENDED TO SHOW SUCH PRICE OR THAT IT BE CANCELED. WITH THE LETTER OF JUNE 5, 1953, TO THIS OFFICE, THE COMPANY FURNISHED A PRICE SHEET OF MINNESOTA MINING & MANUFACTURING COMPANY IN SUPPORT OF ITS ALLEGATION OF ERROR. HOWEVER, THE PRIMARY QUESTION IS NOT WHETHER ANTHIS INDUSTRIAL RUBBER SUPPLY COMPANY MADE AN ERROR IN ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID. THE INVITATION ISSUED WAS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. CONSEQUENTLY, IF THE COMPANY MADE AN ERROR IN THE PREPARATION OF ITS BID, AS ALLEGED, SUCH ERROR WAS DUE SOLELY TO LACK OF PROPER CARE ON THE PART OF THE COMPANY AND THEREFORE WAS UNILATERAL - NOT MUTUAL. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507; AND OGDEN & DOUGHERTY V. UNITED STATES, 102 C. C.S. 249, 259.

MOREOVER, AT THE TIME THE BIDS IN THIS CASE WERE OPENED, THERE WAS SOME DOUBT ON THE PART OF THE CONTRACTING OFFICER AS TO THE CORRECTNESS OF THE BID SUBMITTED BY ANTHIS INDUSTRIAL RUBBER SUPPLY COMPANY AND THE COMPANY WAS REQUESTED TO VERIFY ITS BID. AFTER AN UNEQUIVOCAL VERIFICATION OF THE BID, THE CONTRACTING OFFICER WAS JUSTIFIED IN AWARDING THE CONTRACT ON THE COMPANY'S BID AS THE LOWEST RECEIVED. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 89 N.J.L. 1, 97 A. 774; SHRIMPTON MFG. COMPANY V. BRIN, 59 TEX. CIV. APP. 352, 125 S. W. 942. THE FACT THAT THE COMPANY'S BID WAS NOT ACCEPTED UNTIL IT WAS OFFERED AN OPPORTUNITY TO, AND DID, VERIFY ITS BID PRICE PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF THE COMPANY. SEE 27 COMP. GEN. 17. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH - NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD - AND UNDER SUCH CIRCUMSTANCES 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.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR ANY MODIFICATION OF THE PRICE SPECIFIED IN CONTRACT NO. AF 30(602)-634.

THE PAPERS RECEIVED WITH THE LETTER OF AUGUST 25, 1953, WITH THE EXCEPTION OF THE 1ST INDORSEMENT BY THE CONTRACTING OFFICER, DATED JULY 28, 1953, ARE FORWARDED HEREWITH.