B-128340, JUL. 20, 1956

B-128340, JUL. 20, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALOE SCIENTIFIC, DIVISION OF THE A. S. ALOE COMPANY, ST. LOUIS, MISSOURI, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA-15-014 AII-4746 WAS AWARDED.

BY INVITATION NO. AII-15-104-56-123, HEADQUARTERS, CENTRAL PURCHASING BRANCH, FORT KNOX, KENTUCKY, REQUESTED BIDS--- TO BE OPENED MARCH 13, 1956 --- FOR FURNISHING ONE REFRIGERATED PORTABLE CENTRIFUGE, SIMILAR OR EQUAL TO INTERNATIONAL EQUIPMENT COMPANY'S MODEL PR2, ITEM 1, AND CERTAIN ACCESSORIES AS DESCRIBED UNDER SUBITEMS (A) TO (K), INCLUSIVE. RESPONSE ALOE SCIENTIFIC SUBMITTED A BID DATED MARCH 9, 1956, OFFERING TO FURNISH THE CENTRIFUGE FOR THE PRICE OF $1,925 AND TO FURNISH THE ACCESSORIES AT THE UNIT PRICES SET FORTH OPPOSITE EACH SUBITEM, MAKING A TOTAL PRICE OF $2,781.25 FOR ALL ITEMS. THE ABSTRACT OF BIDS SHOWS THAT OF THE TEN OTHER BIDS RECEIVED ON THE CENTRIFUGE AND ACCESSORIES, FOUR BIDS SPECIFIED A TOTAL PRICE OF $2,908.55, ONE BID SPECIFIED A TOTAL PRICE OF $2,913.44, AND FOUR OF THE REMAINING FIVE BIDS SPECIFIED A TOTAL PRICE OF $2,914.09. AS TO THE TENTH BID, WHICH DID NOT CONTAIN A UNIT PRICE FOR SUBITEM (G) OR A TOTAL PRICE FOR ALL ITEMS, THE ABSTRACT SHOWS THAT IT SPECIFIED UNIT PRICES WHICH ARE IDENTICAL TO THOSE SPECIFIED BY THE BIDDERS QUOTING A TOTAL PRICE OF $2,914.09. ALL BIDDERS QUOTED THE CENTRIFUGE, EXCLUSIVE OF ACCESSORIES, AT $2,075, EXCEPT THE ALOE COMPANY.

IN A REPORT DATED APRIL 10, 1956, FROM THE CONTRACTING OFFICER, IT WAS STATED THAT AWARD WAS MADE TO THE LOWER BIDDER, ALOE SCIENTIFIC, ON MARCH 21, 1956, AND THAT ON MARCH 26, 1956, ALOE SCIENTIFIC ADVISED BY TELEPHONE THAT THE PRICES QUOTED BY IT FOR THE CENTRIFUGE AND ACCESSORIES WERE INCORRECT AND THAT THE ERROR RESULTED FROM THE USE OF A WRONG PRICE LIST BY ITS QUOTATION DEPARTMENT.

IN A CONFIRMING LETTER DATED MARCH 26, 1956, ALOE SCIENTIFIC REQUESTED THAT IT BE PERMITTED TO WITHDRAW ITS BID ON THE EQUIPMENT OR, IN THE ALTERNATIVE, THAT THE TOTAL CONTRACT PRICE FOR ALL ITEMS BE INCREASED TO $2,914.09. THE CONTRACTING OFFICER ADVISED THE COMPANY BY LETTER DATED MARCH 30, 1956, THAT, IN THE ABSENCE OF SUBSTANTIATING DATA IN SUPPORT OF THE ALLEGED ERROR, HE WAS WITHOUT AUTHORITY TO GRANT THE RELIEF REQUESTED AND THAT THE COMPANY SHOULD PROCEED WITH THE DELIVERY OF THE REQUIRED EQUIPMENT. IN A LETTER DATED APRIL 2, 1956, THE COMPANY ALLEGED THAT THE PRICES QUOTED WERE BASED ON AN OUTDATED PRICE LIST OF THE INTERNATIONAL EQUIPMENT COMPANY ISSUED ON MARCH 7, 1955, AND THAT THE CORRECT TOTAL PRICE FOR THE EQUIPMENT SHOULD HAVE BEEN $2,914.09, AS SHOWN BY PRICE LIST ISSUED FEBRUARY 28, 1956. COPIES OF THE OLD AND NEW PRICE LISTS WERE SUBMITTED, WHICH INDICATE THAT THE LIST PRICE OF THE CENTRIFUGE WAS INCREASED FROM $1,925 TO $2,075 IN THE LATER LIST. IT IS NOTED, HOWEVER, THAT THE ALOE BID SPECIFIED THAT THE CENTRIFUGE WOULD BE DELIVERED FROM STOCK IN 1 OR 2 DAYS, AND SINCE THE BID WAS DATED MARCH 9, 1956, IT SEEMS REASONABLE TO ASSUME THAT THE MACHINE IN STOCK HAD BEEN ACQUIRED PRIOR TO THE PRICE INCREASE.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER THE BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THE CONTRACTING OFFICER REPORTS THAT HE WAS NOT AWARE OF THE POSSIBILITY OF ERROR PRIOR TO AWARD, AND IN VIEW OF THE DIFFERENCE BETWEEN THE BIDS, WE FIND NO BASIS TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR. IF AN ERROR WAS MADE IN THE BID--- WHICH IS NOT CLEARLY ESTABLISHED--- IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS MAY HAVE BEEN MADE WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE AFFORDS NO BASIS FOR GRANTING RELIEF TO THE COMPANY. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR RELIEVING ALOE SCIENTIFIC FROM FURNISHING THE CENTRIFUGE AND ACCESSORIES AT THE AMOUNTS SPECIFIED IN ITS ACCEPTED BID.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENTS OF APRIL 10 AND MAY 11, 1956, AND A COPY OF THE ABSTRACT OF BIDS, ARE RETURNED.