B-124369, SEP. 8, 1955

B-124369, SEP. 8, 1955

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR DIXON AND COMPANY, SALT LAKE CITY, UTAH, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA-42-015-QM-3516 WAS AWARDED.

BY INVITATION NO. QM-42-015-55-75, THE UTAH GENERAL DEPOT, OGDEN, UTAH, REQUESTED BIDS FOR FURNISHING 18 ITEMS OF VARIOUS SIZE FIBERBOARD AND CORRUGATED BOXES. BIDDERS WERE REQUESTED TO QUOTE PRICES FOR DELIVERY TO THE PUEBLO ORDNANCE DEPOT, AVONDALE, COLORADO. IN RESPONSE, DIXON AND COMPANY SUBMITTED A BID DATED MARCH 25, 1955, OFFERING TO FURNISH, AMONG OTHER ITEMS, THE SOLID FIBERBOARD BOXES REQUIRED UNDER ITEMS 1, 2, AND 15 AT UNIT PRICES OF $0.225, $0.3234, AND $0.693 EACH, RESPECTIVELY, F.O.B. AVONDALE, COLORADO. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 1, 2, AND 15 ON APRIL 8, 1955.

BY LETTER DATED APRIL 13, 1955, DIXON AND COMPANY ADVISED THAT ON ITEMS 1, 2, AND 15 IT HAD ERRONEOUSLY BID F.O.B. ORIGIN, LONGVIEW, WASHINGTON, INSTEAD OF F.O.B. DESTINATION, AVONDALE, COLORADO. THE COMPANY STATED FURTHER THAT CORRUGATED AND FIBERBOARD BOXES ARE NORMALLY QUOTED BY MANUFACTURERS AT AN F.O.B. DELIVERED PRICE; THAT ON MARCH 25, 1955, IT RECEIVED A TELETYPE QUOTATION ON THE BOXES FROM ITS SUPPLIER IN LONGVIEW, WASHINGTON, AND THAT ACROSS THE TOP OF THE TELETYPE IT WAS STATED "QUOTE UTAH GENERAL DEPOT SOLID FIBER FOR LONGVIEW CORRUGATED FOB COLORADO MIXED CARLOAD QUANTITIES; " AND THAT IN ITS HASTE TO COMPLETE THE BID IN TIME FOR THE BID OPENING, IT TRANSFERRED THE QUOTED F.O.B. ORIGIN PRICES FOR THE SOLID FIBERBOARD BOXES TO ITS BID WITHOUT ADDING THE FREIGHT COSTS. THE COMPANY REQUESTED THAT THE UNIT PRICES FOR ITEMS 1, 2, AND 15 BE INCREASED $0.02727, $0.04013, AND $0.0908, RESPECTIVELY, TO COVER THE OMITTED FREIGHT COSTS. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED THE TELETYPE QUOTATION RECEIVED FROM ITS SUPPLIER AND A BREAKDOWN OF THE FREIGHT COSTS.

THE ABSTRACT OF BIDS SHOWS THAT THE ONLY OTHER RESPONSIVE BIDDER ON ITEM 1 QUOTED A PRICE OF $0.281 EACH; THAT THE SIX OTHER RESPONSIVE BIDDERS ON ITEM 2 QUOTED PRICES RANGING FROM $0.357 TO $0.45215 EACH; AND THAT ON ITEM 15 THE SAME BIDDERS QUOTED PRICES RANGING FROM $0.77TO $0.9386 EACH. THE DIFFERENCE BETWEEN THE BID OF DIXON AND COMPANY OF $0.225, $0.3234, AND $0.693 EACH FOR ITEMS 1, 2 AND 15, RESPECTIVELY, AND THE OTHER BIDS ON THOSE ITEMS DOES NOT APPEAR TO HAVE BEEN SUFFICIENT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED CERTAIN DATA IN SUPPORT OF ITS ALLEGATION OR ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID PRICES. SO FAR AS THE PRESENT RECORD SHOWS THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE COMPANY UNTIL AFTER AWARD--- AND, THEREFORE, THE ACCEPTANCE OF THE BID 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 INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT BIDS WERE DESIRED ON THE BASIS OF A PRICE F.O.B. DESTINATION. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN THE BID OF THE COMPANY WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505. ALSO, SEE 26 COMP. GEN. 426.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE PRICES SPECIFIED IN CONTRACT NO. DA-42-015- QM-3516 FOR ITEMS 1, 2 AND 15, AS REQUESTED BY DIXON AND COMPANY.

A DUPLICATE SET OF THE PAPERS IN THE CASE IS BEING RETAINED. THE OTHER PAPERS ARE RETURNED.