B-133951, OCT. 11, 1957

B-133951, OCT. 11, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER OF SEPTEMBER 30, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR DEROUEN'S REFRIGERATION COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA- 16-049-400-TC-892, DATED JUNE 25, 1957, IS BASED.

BY INVITATION NO. TC-16-049-57-114, DATED MARCH 27, 1957, THE PROCUREMENT DIVISION, NEW ORLEANS ARMY TERMINAL, NEW ORLEANS, LOUISIANA, REQUESTED BIDS FOR FURNISHING AND INSTALLING A 42 TON AIR CONDITIONING UNIT IN THE ENLISTED MEN'S CLUB AT CAMP LEROY JOHNSON. THE DEROUEN'S REFRIGERATION COMPANY SUBMITTED A BID OFFERING TO DO THE JOB FOR $17,248 AND ITS BID WAS ACCEPTED ON JUNE 25, 1957. BY LETTER OF JULY 16, 1957, THE COMPANY ADVISED THE ADMINISTRATIVE OFFICE THAT DUE TO MISINTERPRETATION OF THE PLANS AND SPECIFICATIONS ITS BID FAILED TO INCLUDE ANY COST FOR THE BATT INSULATION AND CARPENTRY, AND REQUESTED THAT THE CONTRACT BE CANCELED.

THE CONTRACTING OFFICER IN HIS FINDINGS OF JULY 19, 1957, STATED THAT IN CONVERSATION WITH THE CONTRACTOR WITH REGARD TO THE ALLEGED ERROR IT WAS REVEALED THAT THE CONTRACTOR "WAS NOT AS THOROUGHLY FAMILIAR WITH THE DRAWINGS AS HE SHOULD HAVE BEEN AT THE TIME HE DEVELOPED HIS BID.' ALSO, IT IS STATED THAT THE DRAWINGS CLEARLY OUTLINE THE CEILING INSULATION WORK AND WAS A PART OF THE INVITATION WHICH WAS FURNISHED THE CONTRACTOR. THE CONTRACTOR HAS NOT FURNISHED ANY CONCLUSIVE EVIDENCE TO ESTABLISH ITS MISTAKE.

IT DOES NOT APPEAR THAT THE DIFFERENCE BETWEEN THE CONTRACTOR'S BID OF $17,248 AND OTHER BIDS OF $19,721, $23,709, $23,772, $27,340AND $29,520, WAS SO GREAT AS TO JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF PROBABILITY OF ERROR. IT FOLLOWS THAT THE ACCEPTANCE OF THE BID OF DEROUEN'S REFRIGERATION COMPANY WAS IN GOOD FAITH --- NO ERROR HAVING BEEN ALLEGED BY IT UNTIL AFTER THE AWARD OF THE CONTRACT--- AND THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATIONS UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF JULY 19, 1957, ARE RETURNED.