B-116224, DEC 1, 1953

B-116224, DEC 1, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED AUGUST 27, 1953, WITH ENCLOSURES, FROM THE DEPUTY DIRECTOR OF FINANCE, SUBMITTED IN RESPONSE TO LETTER DATED JULY 20, 1953, REQUESTING A REPORT RELATIVE TO AN ERROR ALLEGED BY NOLAND COMPANY, INC., TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO REQUEST FOR PROPOSAL NO. 17B-53-950 - ISSUED BY THE ARNOLD ENGINEERING DEVELOPMENT CENTER, TULLAHOMA, TENNESSEE - AND ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER (40-600) 53-1108) DATED JUNE 25, 1953, IS BASED.

IN FIRST INDORSEMENT DATED AUGUST 11, 1953, THE ACTING CHIEF, PROCUREMENT DIVISION, ARNOLD ENGINEERING DEVELOPMENT CENTER, STATED THAT PRIOR TO AWARD, A REPRESENTATIVE OF NOLAND COMPANY, INC., WAS VERBALLY REQUESTED TO VERIFY WHETHER THE TAPS WHICH THE CORPORATION PROPOSED TO FURNISH WOULD MEET THE SPECIFICATIONS AND THAT, AFTER LOOKING OVER THE CORPORATION'S BID, SAID REPRESENTATIVE REPLIED THAT HE WAS CERTAIN THAT THE CORPORATION PROPOSED TO FURNISH LEFT-HAND TAPS.

AFTER AWARD THE CORPORATION ALLEGED THAT ITS BID PRICES FOR ITEMS 56 TO 59, INCLUSIVE, 61, 65, 67 AND 74, INCLUSIVE, OF THE INVITATION (ITEMS 3 TO 16, INCLUSIVE, OF PURCHASE NO. (40-600) 53-1108) WERE ERRONEOUS IN THAT THEY WERE BASED ON FURNISHING RIGHT-HAND TAPS AND NOT LEFT-HAND TAPS, AS REQUIRED. AFTER THE CORPORATION VERIFIED ITS BID THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. 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 ACCEPTANCE OF THE BID WAS NOT MADE UNTIL AFTER THE CORPORATION HAD BEEN GIVEN AN OPPORTUNITY TO VERIFY ITS BID PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF THE CORPORATION. SEE 10 COMP. GEN. 388; 14 ID. 453; 18 ID. 942; AND 27 ID. 17. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED 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 AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, I FIND NO LEGAL BASIS FOR RELEASING NOLAND COMPANY, INC., FROM ITS OBLIGATION TO FURNISH THE LEFT-HAND TAPS AT ITS BID PRICES OR FOR AUTHORIZING AN INCREASE IN THE PRICES THEREOF.