B-126043, DEC. 1, 1955

B-126043, DEC. 1, 1955

TO SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 8, 1955, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR THE ZINNI ARTISTS MATERIALS, PHILADELPHIA, PENNSYLVANIA, ALLEGES IT MADE IN ITS BID DATED JUNE 5, 1955, ON WHICH PURCHASE ORDER NO. 01-7687-G-55, DATED JUNE 17, 1955, WAS AWARDED.

BY INVITATION NO. QM 36-030-55-840, ISSUED ON MAY 18, 1955, THE PHILADELPHIA QUARTERMASTER DEPOT REQUESTED BIDS, TO BE OPENED JUNE 8, 1955, FOR FURNISHING VARIOUS ART SUPPLIES F.O.B. DESTINATION. IN RESPONSE TO THE INVITATION THE ZINNI ARTISTS MATERIALS OFFERED TO FURNISH, AMONG OTHERS, ITEM NO. 81, 300 REAMS OF "PAPER, DRAWING, ECONOMY, CREAM MANILA, 12 INCHES BY 18 INCHES, ACQUABEE NO. 888 OR EQUAL," F.O.B. DESTINATION OAKLAND OR SAN FRANCISCO, CALIFORNIA, AT A PRICE OF $1.85 PER REAM OR A TOTAL PRICE OF $555. THE TERMS OF THE INVITATION APPLICABLE TO ALL ITEMS INCLUDED THE SPECIFIC REQUIREMENT: "100 PERCENT OVERSEAS PACK.' THE BID OF ZINNIARTISTS MATERIALS WAS THE LOWEST OF FIVE BIDS SUBMITTED AND AWARD OF PURCHASE ORDER NO. 01-7687 G-55 WAS MADE ON JUNE 17, 1955.

IN A LETTER DATED JUNE 25, 1955, THE CONTRACTOR INFORMED THE CONTRACTING OFFICER THAT IT HAD BEEN ADVISED BY ITS SUPPLIER THAT THE TOTAL COST OF ACQUABEE NO. 888 WITH EXPORT PACK WAS $2.48 PER UNIT, AND THAT SINCE THE CONTRACTOR HAD NOT ANTICIPATED THE HIGH COST OF OVERSEAS PACKAGING IT DESIRED TO BE RELIEVED OF THE CONTRACT ON THIS ITEM. BY LETTER DATED JUNE 30, 1955, THE CONTRACTING OFFICER INFORMED THE CONTRACTOR THAT A VALID AND BINDING CONTRACT RESULTED FROM THE ACCEPTANCE OF ITS BID AND THAT UNLESS IT PERFORMED IT WOULD BE CHARGED WITH ANY EXCESS COSTS RESULTING FROM THE REPURCHASE. THE CONTRACTOR HAS PERFORMED, BUT BY LETTER DATED AUGUST 13, 1955, MADE CLAIM FOR AN ADDITIONAL $189, STATING THAT IT DID NOT KNOW OF THE "HIDDEN COST FOR COMMERCIAL PACKAGING FOR OVERSEAS SHIPMENT.' SUPPORT OF ITS POSITION IT SUBMITTED A COPY OF A LETTER FROM ITS SUPPLIER RELATIVE TO THE PRICE ON ITEM NO. 81, A COPY OF ITS WORKSHEET UTILIZED IN COMPUTING ITS BID PRICE, AND AN INVOICE FROM ITS SUPPLIER IN THE AMOUNT OF $744 REPRESENTING THE VALUE OF 300 REAMS OF MANILA PAPER AT $2.48 PER REAM.

THE ABSTRACT OF BIDS SHOWS THAT THE BIDS SUBMITTED ON ITEM NO. 81 RANGED FROM THE CONTRACTOR'S LOW OF $1.85 PER REAM TO A HIGH OF $3.00 SUBMITTED BY TWO OTHER BIDDERS. THE DIFFERENCE IN BID BETWEEN THE CONTRACTOR AND THE NEXT LOW BIDDER IS $0.65 PER REAM AND THE DIFFERENCE IN BID BETWEEN THE NEXT LOW BIDDER AND THE HIGHEST BIDDER IS $0.49 PER REAM. IT IS THE VIEW OF THE CONTRACTING OFFICER THAT THIS DIFFERENCE DID NOT REVEAL SUCH A GROSS DISCREPANCY AS WOULD APPRISE THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN COMMITTED, ESPECIALLY IN VIEW OF THE FACT THAT IN A PREVIOUS PROCUREMENT THREE BIDS WERE SUBMITTED FOR THE SAME ITEM, REQUIRING 100 PERCENT OVERSEAS PACKING AS REQUIRED IN THE INSTANT CONTRACT, AND THE PRICES BID RANGED FROM A LOW OF $1.70 PER REAM TO $3.60 PER REAM, THE LOW BIDDER HAVING MADE DELIVERY IN ACCORDANCE WITH HIS BID.

THE SUBMISSION OF A BID IN RESPONSE TO THE INVITATION IN THIS CASE WAS, OF COURSE, VOLUNTARY. THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID WAS UPON THE BIDDER. IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN THE BID OF ZINNI ARTISTS MATERIALS WAS DUE TO ITS FAILURE TO ASCERTAIN WHAT THE SPECIFICATIONS CALLED FOR PRIOR TO SUBMITTING ITS BID. THE ERROR WAS DUE SOLELY TO THE NEGLIGENCE OF THE BIDDER AND WAS NOT INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. THE ERROR WAS UNILATERAL AND NOT MUTUAL AND, THEREFORE, DOES NOT ENTITLE THE BIDDER TO RELIEF. ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 C.CLS. 127; AND AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 C.CLS. 209.

IN THE INSTANT CASE THE SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS AND NOTHING ON THE FACE OF THE BID SUGGESTED ERROR. NOR WAS THE DIFFERENCE BETWEEN THE CONTRACTOR'S BID AND THE OTHER BIDS RECEIVED SO GREAT THAT THE CONTRACTING OFFICER SHOULD BE CHARGED WITH CONSTRUCTIVE KNOWLEDGE OF THE MISTAKE. CONSEQUENTLY, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES AND VESTED IN THE UNITED STATES RIGHTS WHICH COULD NOT BE WAIVED OR RELINQUISHED BY ANY OFFER OF THE GOVERNMENT. SEE 20 COMP. GEN. 652; AND 26 ID. 415.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR REIMBURSING ZINNI ARTISTS MATERIALS FOR COSTS TO COVER COMMERCIAL PACKING FOR OVERSEAS SHIPMENT OF THE PAPER PURCHASED UNDER PURCHASE ORDER NO. 01-7687-G-55.

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