B-126818, FEB. 8, 1956

B-126818, FEB. 8, 1956

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 26, 1956, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO WHETHER RELIEF MAY BE GRANTED ON ACCOUNT OF A MISTAKE IN BID ALLEGED BY THE GILBERT PLASTICS AND SUPPLY COMPANY, BALTIMORE, MARYLAND, AFTER AWARD OF CONTRACT NO. DA-49 018-ENG-1418, DATED NOVEMBER 29, 1955.

IN RESPONSE TO INVITATION NO. ENG-49-018-56-29, DATED NOVEMBER 8, 1955, CALLING FOR THE FURNISHING OF PLASTIC, VINYL, AND PLASTIC, ACETATE, AS SET FORTH IN THE INVITATION, THE GILBERT PLASTICS AND SUPPLY COMPANY OFFERED TO FURNISH (ITEM 1) 500 ROLLS OF PLASTIC, ACETATE, CLEAR, .005 INCHES THICK, 40 INCHES BY 100 FEET, AT A UNIT PRICE OF $9.64 PER ROLL, OR FOR A TOTAL OF $4,820, AND (ITEM 2) 130 ROLLS OF PLASTIC, ACETATE, MATTE, .005 INCHES THICK, 40 INCHES BY 100 FEET AT A UNIT PRICE OF $10.72 PER ROLL, OR FOR A TOTAL OF $1,393.60. THE FOREGOING BIDS WERE THE LOWEST RECEIVED AND AWARD WAS MADE TO THE COMPANY UNDER THE ABOVE-INDICATED CONTRACT.

THE RECORD INDICATES THAT UPON RECEIPT OF THE CONTRACT THE CONTRACTOR BY LETTER OF DECEMBER 2, 1955, ADVISED THE ARMY MAP SERVICE, CORPS OF ENGINEERS, THAT AN ERROR HAD BEEN MADE IN COMPUTING THE BID IN THIS CASE IN THAT THE BID WAS FIGURED ON A STANDARD 31 INCH ROLL RATHER THAN A 40 INCH ROLL, AS CALLED FOR IN THE INVITATION TO BID. IN EXPLANATION OF THE ALLEGED MISTAKE IN BID, THE CONTRACTOR ADVISED THE ARMY MAP SERVICE IN LETTER OF DECEMBER 16, 1955, IN PART, AS FOLLOWS:

"NO. 1--- PRACTICALLY ALL ACETATE IN ROLLS IS MADE IN 40 INCH WIDTH AND ALL THAT WE HAVE EVER BOUGHT HAS BEEN 40 INCH WIDTH. NOW SINCE THE DESCRIPTION ON THE INVITATION DID NOT CALL FOR SPEC. LC 169 WHICH IS NORMAL, WE WENT TO THE NEXT LOWER CLASSIFICATION OF MATERIAL WHICH IS MADE ONLY IN 31 INCH WIDTH.'

IN SUPPORT OF HIS RECOMMENDATION THAT THE CONTRACTOR BE REQUIRED TO FULFILL THE CONTRACT IN THIS CASE IN ACCORDANCE WITH ITS TERMS, THE CONTRACTING OFFICER INVITED ATTENTION TO THE FOLLOWING STATEMENT IN HIS LETTER OF DECEMBER 8, 1955, TO THE CONTRACTOR:

"THE INVITATION WAS SPECIFIC AS TO THE WIDTH OF THE ROLL TO BE SUPPLIED AND COULD NOT POSSIBLY BE CONSTRUED AS ANY OTHER WIDTH THAN 40 INCHES. FURTHER, IN VIEW OF THE CLOSE PROXIMITY OF THE PRICES RECEIVED UNDER THE INVITATION THERE WAS NO NOTICE OF ANY POSSIBLE ERROR PRIOR TO AWARD. ALLOW YOU TO RESUBMIT YOUR BID OR CANCEL THE CONTRACT WOULD BE PREJUDICIAL TO OTHER BIDDERS UNDER THE INVITATION.'

IN THIS CONNECTION, THE ABSTRACT OF BIDS SHOWS THE NEXT TWO HIGHER BIDS UNDER ITEM NO. 1 TO HAVE BEEN IN THE AMOUNTS OF $10.67 AND $10.75 PER ROLL, AND IN THE AMOUNTS OF $12.86 AND $13.40 PER 100 FOOT ROLL AS TO ITEM NO. 2. SINCE THE COMPANY'S BIDS THUS WERE IN LINE WITH THE OTHER BIDS, IT CANNOT BE SAID THAT THE CONTRACTING OFFICER WAS ON NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF PROBABLE ERROR SO AS TO REQUIRE VERIFICATION OF THE BID BEFORE AWARD.

THE RECORD INDICATES THAT THE ACCEPTANCE OF THE BID IN THIS CASE WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THEREFORE, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88; UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE INVITATION ISSUED IN THIS CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT AS TO WHAT WAS REQUIRED TO BE FURNISHED THEREUNDER. SUCH ERROR AS MAY HAVE BEEN MADE APPEARS TO HAVE BEEN DUE SOLELY TO THE BIDDER'S NEGLIGENCE OF OVERSIGHT, AND THUS IT WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507, AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR RELIEVING THE GILBERT PLASTICS AND SUPPLY COMPANY FROM THE OBLIGATIONS OF THE CONTRACT.

THE PAPERS TRANSMITTED WITH LETTER OF JANUARY 26, 1956, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S LETTER OF DECEMBER 30, 1955, ARE RETURNED HEREWITH.