B-126204, FEB. 9, 1956

B-126204, FEB. 9, 1956

TO MID STATES REFINING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 23, 1955, REQUESTING TO BE RELIEVED FROM THE OBLIGATION OF FURNISHING FUEL OIL TO THE BUREAU OF INDIAN AFFAIRS INSTALLATION, LOCATED AT BELCOURT, NORTH DAKOTA, SEVEN MILES WEST OF ROLLA, AS REQUIRED BY ITEM 166 OF CONTRACT NO. GS-06S-3274, WITH THE GENERAL SERVICES ADMINISTRATION, REGION THREE, OR IN THE ALTERNATIVE THAT YOU BE GRANTED A REASONABLE PRICE ADJUSTMENT BASED ON THE NEXT LOW BID.

THE FACTS IN THE MATTER ARE FULLY SET FORTH IN THE FINDINGS OF THE BOARD OF REVIEW, GENERAL SERVICES ADMINISTRATION, DOCKET NO. 291, A COPY OF WHICH WAS FORWARDED WITH YOUR LETTER AND THEREFORE WILL BE MENTIONED ONLY BRIEFLY HERE.

ON MARCH 1, 1955, THE FEDERAL SUPPLY SERVICE, KANSAS CITY, MISSOURI, BY INVITATION NO. KC-37548, REQUESTED BIDS FOR FURNISHING FUEL OIL, KEROSENE AND SOLVENTS AS MIGHT BE ORDERED DURING THE PERIOD JUNE 1, 1955 THROUGH MAY 31, 1956, BY FEDERAL INSTALLATIONS IN THE STATES OF IOWA, KANSAS, MINNESOTA, MISSOURI, NEBRASKA, NORTH DAKOTA, AND SOUTH DAKOTA. RESPONSE TO THE INVITATION, YOU SUBMITTED A BID ON 20 OF THE ITEMS INCLUDING ITEM 166 COVERING AN ESTIMATED 240,000 GALLONS OF NO. 2 BURNER OIL TO THE BUREAU OF INDIAN AFFAIRS AT BELCOURT, NORTH DAKOTA, SEVEN MILES WEST OF ROLLA. ON ITEM 166 YOU QUOTED A DELIVERY PRICE OF $0.10 PER GALLON ON THE DATE OF THE BID WITH A MAXIMUM OF $0.11 PER GALLON, DELIVERY TO BE MADE BY TRANSPORT TRUCK. THE SIX OTHER BIDS RECEIVED ON ITEM 166 QUOTED MAXIMUM PRICES RANGING FROM $0.12454 TO $0.1422 PER GALLON. YOUR BIDS ON ITEM 166 AND SEVERAL OTHER ITEMS, BEING THE LOWEST RECEIVED, WERE ACCEPTED ON APRIL 15, 1955, CONSUMMATING CONTRACT NO. GS-06S-3274.

ON MAY 13, 1955, YOU ADVISED THE CONTRACTING AGENCY THAT AN ERROR HAD BEEN MADE IN YOUR BID IN THAT THE QUOTATION ON ITEM 166 WAS INTENDED FOR ITEM 116 COVERING THE FURNISHING OF FUEL OIL TO THE BUREAU OF MINES AT ROLLA, MISSOURI. IN VIEW THEREOF, IT WAS REQUESTED THAT YOU BE RELIEVED FROM FURNISHING FUEL OIL TO THE BUREAU OF INDIAN AFFAIRS AT BELCOURT, NORTH DAKOTA. YOUR REQUEST WAS DENIED BY THE CONTRACTING OFFICER AND THE ASSISTANT ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, ON THE BASIS OF THE RECOMMENDATION OF THE BOARD OF REVIEW, FOR THE REASON THAT YOUR BID WAS ACCEPTED IN GOOD FAITH WITHOUT NOTICE OF ERROR.

THE EVIDENCE OF RECORD SHOWS THAT THE INVITATION WAS CLEAR AND UNAMBIGUOUS. THERE WAS NOTHING ON THE FACE OF YOUR BID, OR IN THE ATTENDANT CIRCUMSTANCES, TO INDICATE TO THE CONTRACTING OFFICER THE PROBABILITY OF ERROR. COMPARISON OF YOUR MAXIMUM PRICE--- WHICH WAS THE BASIS OF EVALUATION--- WITH MAXIMUM PRICES QUOTED BY OTHER BIDDERS ON THE SAME ITEM SHOWS THAT THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOWEST WHILE SOMEWHAT HIGHER THAN THE DIFFERENCES BETWEEN OTHER CONSECUTIVE BIDS, WAS LESS THAN THE OVERALL RANGE OF OTHER BIDS, AND WAS NOT SO GREAT AS TO CONSTITUTE NOTICE OF PROBABLE ERROR. THE ACCEPTANCE OF THE BID MUST THEREFORE BE CONSIDERED TO HAVE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SUCH ERROR AS MAY HAVE BEEN MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND CONSTITUTES NO BASIS FOR GRANTING RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

IT IS WELL ESTABLISHED THAT AGENTS OR OFFICERS OF THE UNITED STATES, INCLUDING THIS OFFICE, HAVE NO AUTHORITY TO DISPOSE OF MONEY OR PROPERTY OF THE GOVERNMENT, TO SURRENDER A RIGHT VESTED IN THE GOVERNMENT, TO WAIVE CONTRACTUAL RIGHTS WHICH HAVE ACCRUED, OR TO MODIFY EXISTING CONTRACTS, WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE AMERICAN SALES CORPORATION V. UNITED STATES, 27 F.2D 389, CERTIORARI DENIED, 280 U.S. 574 AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED, 292 U.S. 645.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR INCREASING THE CONSIDERATION SPECIFIED IN THE CONTRACT FOR ITEM 166 OR RELIEVING YOU FROM LIABILITY FROM FURNISHING THE FUEL OIL AS REQUIRED.