B-127787, MAY 24, 1956

B-127787, MAY 24, 1956

TO KNOEBEL MERCANTILE CO.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1956, REQUESTING REVIEW OF OUR OFFICE SETTLEMENT DATED JULY 18, 1955, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $230.28, ALLEGED TO BE DUE BY REASON OF AN ERROR CLAIMED TO HAVE BEEN MADE ON ITEM 1 OF YOUR BID ON WHICH CONTRACT NO. GS-08S-6377, DATED FEBRUARY 17, 1955, IS BASED.

THE PURCHASE DIVISION, FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, DENVER, COLORADO, BY INVITATION NO. 8966, REQUESTED BIDS FOR FURNISHING CERTAIN GROCERY ITEMS IN ACCORDANCE WITH CERTAIN SPECIFICATIONS. YOU SUBMITTED A BID OFFERING TO FURNISH, AMONG OTHER ITEMS, 1,368 24-OUNCE CONTAINERS OF MOLASSES UNDER ITEM 1 AT A PRICE OF $0.1726 EACH, OR FOR A TOTAL OF $236.12.

YOU ALLEGE THAT THE COST OF THE MOLASSES TO YOU WAS $4.10 PER CASE OF 12 24-OUNCE BOTTLES, BUT THAT IN ARRIVING AT THE COST PER BOTTLE, A DIVISOR OF 24 INSTEAD OF 12 WAS USED THROUGH CLERICAL ERROR. YOU CONTEND THAT THE DIFFERENCES BETWEEN YOUR BID AND THE TWO OTHER BIDS RECEIVED ON THIS ITEM WERE SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF ERROR.

THE CONTRACTING OFFICER HAS STATED THAT HE DID NOT QUESTION YOUR BID SINCE THE PRICE APPEARED TO BE IN LINE WITH COMPETITION. THE TWO OTHER BIDS RECEIVED ON ITEM 1 WERE $0.3358 PER 24-OUNCE JAR AND $0.265 PER 30- OUNCE JAR. THE DIFFERENCE IN COST BETWEEN YOUR BID AND THAT OF THE NEXT LOW BID WAS ONLY $0.001642 PER OUNCE. IN VIEW THEREOF AND SINCE YOUR BID ON THE OTHER ITEMS ACCEPTED WAS PROPORTIONATELY LOWER THAN THE OTHER BIDS RECEIVED, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF ERROR. THE ACCEPTANCE OF YOUR BID UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. MOREOVER, THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT AS TO WHAT WAS DESIRED UNDER THE ITEM INVOLVED. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. CONSEQUENTLY, IF IN THE PREPARATION OF YOUR BID YOU USED THE WRONG DIVISOR, SUCH ERROR WAS DUE SOLELY TO LACK OF PROPER CARE ON YOUR PART AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 07; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. ..END :