B-122299, JUN. 30, 1955

B-122299, JUN. 30, 1955

TO J. CHAPMAN AND SONS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1955, WITH ENCLOSURE, ADDRESSED TO AND REFERRED TO THIS OFFICE BY THE U.S. NAVY REGIONAL OFFICE, WASHINGTON, D.C., PROTESTING AGAINST THE DECISION OF THIS OFFICE CONCERNING AN ERROR ALLEGED TO HAVE BEEN MADE ON ITEM 17 OF YOUR BID SUBMITTED IN RESPONSE TO SALES INVITATION TO BID B-57-55 ON WHICH CONTRACT NO. N62583S9039 IS BASED.

THE MATTER ORIGINALLY WAS THE SUBJECT OF A DECISION BY OUR OFFICE DATED JANUARY 14, 1955, B-122299, TO THE SECRETARY OF THE NAVY, COPY ENCLOSED. THE DECISION CONSIDERED AN ERROR IN BID ALLEGED BY YOU IN QUOTING ON ITEM 17 OF YOUR BID FOR THE PURCHASE OF GOVERNMENT-OWNED CAMOUFLAGE NET, AND ON THE BASIS OF THE REPORTED FACTS AND APPLICABLE LAW IT WAS CONCLUDED THAT YOU COULD NOT BE RELEASED FROM YOUR OBLIGATION UNDER THE CONTRACT.

IT APPEARS TO BE YOUR CONTENTION THAT YOUR BID WAS MADE ON THE BASIS OF A CERTAIN LETTER DATED OCTOBER 28, 1954, FROM THE CONTRACTING OFFICER TO YOU WHICH INDICATED THAT THIS ITEM CONTAINED 254,000 SQUARE YARDS OF MATERIAL BUT THAT AFTER AWARD AND PAYMENT THEREFOR YOU DISCOVERED THAT THERE WAS ONLY 3,828 SQUARE YARDS OF MATERIAL. INSOFAR AS THE RECORDS OF OUR OFFICE SHOW, THE REFERRED-TO LETTER DID NOT MAKE ANY REPRESENTATION AS TO THE QUANTITY OF THE MATERIAL OFFERED FOR SALE UNDER ITEM 17. IT WAS POINTED OUT IN THE SECOND PARAGRAPH OF OUR DECISION OF JANUARY 14, 1955, THAT THE CONTRACTING OFFICER, IN HIS LETTER OF OCTOBER 28, 1954, INVITED YOUR ATTENTION TO THE GOVERNMENT'S EXPRESS DISCLAIMER OF GUARANTY AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF THE MERCHANDISE OFFERED FOR SALE, AND TO THE RISK THAT YOU ASSUMED IN BUYING WITHOUT PRIOR INSPECTION OF THE PROPERTY. AS POINTED OUT FURTHER IN THE DECISION, BIDDERS WERE WARNED THAT THE DESCRIPTION WAS BASED ONLY ON THE BEST AVAILABLE INFORMATION AND THAT, IN THE EVENT OF ANY VARIATION BETWEEN THE QUANTITY LISTED FOR ANY TIME AND THE QUANTITY OF SUCH ITEM TENDERED OR DELIVERED TO THE PURCHASER, NO ADJUSTMENT FOR SUCH VARIATION WOULD BE MADE WHERE AN AWARD IS MADE ON A "PRICE FOR THE LOT" BASIS.

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE RECORD INDICATED THAT THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD AND THERE BEING NO EVIDENCE THAT THE CONTRACTING OFFICER KNEW, BEFORE AWARD, THAT THE QUANTITY STATED WAS INCORRECT. SUCH ACCEPTANCE CONSUMMATED A VALID AND BINDING CONTRACT, THE TERMS OF WHICH CANNOT LEGALLY BE MODIFIED TO THE PREJUDICE OF THE UNITED STATES WITHOUT SOME COMPENSATING BENEFIT OR CONSIDERATION MOVING TO IT. SEE VULCANITE PORTLAND CEMENT COMPANY V. UNITED STATES, 74 C.CLS. 692, 705.

YOUR LETTER AND ENCLOSURE DO NOT CONTAIN ANY MATERIAL EVIDENCE WHICH WAS NOT BEFORE THIS OFFICE AT THE TIME THE DECISION WAS RENDERED. ACCORDINGLY, THE DECISION OF JANUARY 14, 1955, IS AFFIRMED.