B-130603, FEB. 18, 1957

B-130603, FEB. 18, 1957

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JANUARY 29, 1957, WITH ENCLOSURES, FROM THE ACTING AREA DIRECTOR, PORTLAND AREA OFFICE, BUREAU OF INDIAN AFFAIRS, PORTLAND, OREGON, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR SWIFT AND COMPANY, NORTH PORTLAND, OREGON, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. 14 20-500-629 WAS AWARDED. RECEIPT IS ALSO ACKNOWLEDGED OF A TELEGRAM DATED FEBRUARY 7, 1957, FROM THE AREA DIRECTOR, PORTLAND AREA OFFICE.

SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE DECISION IS BEING ADDRESSED TO YOU. SEE 26 COMP. GEN. 993; AND 28 ID. 401.

THE BUREAU OF INDIAN AFFAIRS, PORTLAND, OREGON, BY INVITATION NO. 57-67-1 -22, REQUESTED BIDS--- TO BE OPENED JANUARY 22, 1957--- FOR FURNISHING ESTIMATED QUANTITIES OF FRESH BEEF, ITEM 1, AND FRANKFURTERS, ITEM 2, TO THE CHEMAWA INDIAN SCHOOL, CHEMAWA, OREGON, DURING THE PERIOD FROM FEBRUARY 4, 1957, TO MAY 11, 1957, INCLUSIVE. IN RESPONSE SWIFT AND COMPANY SUBMITTED AN UNDATED BID, IN PART, AS FOLLOWS:

"1. BEEF CARCASS, TO CONFORM TO FEDERAL SPECIFICATIONS PP-B-221C. THE BEEF TO BE FURNISHED AS A RESULT OF THIS INVITATION IS TO BE OF COMMERCIAL GRADE, FULLY AGED AND BONED. APPROXIMATELY 1,400 POUNDS SHALL BE FURNISHED WEEKLY. DELIVERIES SHALL CONSIST OF EQUAL AMOUNTS OF FRONT AND HIND QUARTERS, EACH QUARTER TO WEIGH APPROXIMATELY 125 POUNDS. APPROXIMATELY 19,600 LBS. FOR PERIOD OF CONTRACT.

"FRESH BEEF, FULLY BONED . . . . . . . . . . . . PER POUND ?2945"

THE TWO OTHER BIDS ON ITEM 1 WERE IN THE AMOUNTS OF $0.3185 AND $0.3773 PER POUND. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEM 1 ON JANUARY 23, 1957.

BY LETTER DATED JANUARY 24, 1957, SWIFT AND COMPANY ADVISED THE CONTRACTING OFFICER AS FOLLOWS:

"WE HAVE MADE A GROSS ERROR IN BEING AWARDED BONELESS COMMERCIAL BEEF ON CONTRACT 14-20-500-629. WE DO NOT KNOW ABOUT THE COMPETITIVE BIDS, BUT IT SHOULD BE OBVIOUS THAT OUR BID WAS PLACED ON CARCASS BEEF INSTEAD OF BONELESS BEEF.

"IS THERE ANY PROCEDURE FOR YOU TO CONSIDER, OR FOR US TO FOLLOW IN AN EFFORT TO OBTAIN A REASONABLE MARKET PRICE FOR THE BONELESS MEAT?

"SINCE THIS CONTRACT IS FOR A THREE-MONTH PERIOD, AND AMOUNTS TO APPROXIMATELY 20,000 POUNDS BEEF, WE WOULD LIKE TO APPLY FOR RELIEF BASED ON AN OBVIOUS ERROR HAVING BEEN MADE.

"WILL YOU PLEASE ADVISE, GIVING US YOUR RECOMMENDATION?

IN THE AREA DIRECTOR'S TELEGRAM OF FEBRUARY 7, 1957, IT IS STATED THAT SWIFT AND COMPANY HAS INFORMALLY ADVISED THAT IT INTENDED TO QUOTE A PRICE OF $0.339 PER POUND FOR THE BONELESS BEEF REQUIRED UNDER ITEM 1.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND 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, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR RELIEVING SWIFT AND COMPANY FROM LIABILITY FOR FURNISHING THE BONELESS BEEF REQUIRED UNDER THE CONTRACT AT ITS BID PRICE, OR FOR INCREASING THE CONSIDERATION THEREFOR.