B-130909, MAR. 11, 1957

B-130909, MAR. 11, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF FEBRUARY 28, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), WITH ENCLOSURES, RELATING TO A MISTAKE IN BID ALLEGED BY UNITED STATES LENS CORPORATION AFTER AWARD OF CONTRACT NO. DA 23-207-AV-180, TO SAID CORPORATION, DATED MARCH 7 1956.

THE RECORD SHOWS THAT ITEM NO. 1 OF THE INVITATION CALLED FOR FURNISHING 7,700 PAIR BLANKS, SEMIFINISHED, PLUS 6 BASE CURVE, SHADE N 15, 5 OR 6 MM THICK, 71 MM ROUND. THREE BIDS WERE RECEIVED; ONE $1.75 PER UNIT, ONE $2.40 PER UNIT, AND THE BID OF THE UNITED STATES LENS CORPORATION OF $1.12 PER UNIT. THE AWARD WAS MADE TO THE LOW BIDDER ON MARCH 7, 1956. ITS BID WAS SIGNED BY E. J. BROWNER, PRESIDENT OF THE CORPORATION. ON APRIL 12, 1956, OR MORE THAN ONE MONTH AFTER THE CONTRACT HAD BEEN SIGNED, MR. BROWNER ORALLY ADVISED THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE IN THE BID OF THE CORPORATION BUT THAT IT INTENDED TO FULFILL ITS CONTRACT AS HE WAS INTERESTED IN FUTURE BUSINESS WITH THE GOVERNMENT. AT THAT TIME MR. BROWNER STATED THAT HIS CORPORATION'S BID HAD BEEN BASED ON AN ORAL QUOTATION FROM ITS SUPPLIER OF GLASS WHICH IT HAD FAILED TO HAVE CONFIRMED IN WRITING. IN A LETTER OF DECEMBER 17, 1956, THE BIDDER STATES THAT ITS BID WAS BASED ON A PRICE OF $1.01 FOR ROUGH BLANKS, TO WHICH IT ADDED 10 PERCENT PROFIT, THUS ARRIVING AT THE PRICE OF $1.12 PER PAIR. THE BIDDER HAS PRODUCED A WORKSHEET FOR THE PURPOSE OF SHOWING THAT IT FAILED TO INCLUDE A CHARGE OF APPROXIMATELY $0.50 PER UNIT FOR "SURFACING," AND THAT THE CORRECT PRICE SHOULD HAVE BEEN $1.66 PER PAIR. THE WORKSHEET IS DATED APRIL 4, 1956, OR ALMOST A MONTH AFTER THE DATE OF THE CONTRACT. MOREOVER, BOTH OF THE LETTERS FROM ITS SUPPLIERS SUBMITTED BY THE BIDDER TO SUPPORT ITS ALLEGATION OF ERROR ARE DATED AFTER THE DATE OF ITS BID, WHICH WAS FEBRUARY 7, 1956.

IN VIEW OF THE FOREGOING, THERE IS SUBSTANTIAL DOUBT THAT ITS BID WAS NOT AS INTENDED OR THAT ITS BID WAS IN FACT ERRONEOUS. IN ANY EVENT, IT IS CLEAR THAT THE ERROR, IF ANY, WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE BIDDER TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. THE DIFFERENCE BETWEEN THE ACCEPTED BID OF $1.12 AND THE PRICES SUBMITTED BY THE OTHER TWO BIDDERS DOES NOT APPEAR TO BE SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF UNITED STATES LENS CORPORATION. THUS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PRUCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR RELIEVING THIS CONTRACTOR FROM HIS OBLIGATION TO FURNISH THIS MATERIAL AT THE CONTRACT PRICE OF $1.12 PER UNIT.