B-134118, DEC. 12, 1957

B-134118, DEC. 12, 1957

TO EMPIRE ELECTRONICS COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1957, PROTESTING OUR SETTLEMENT OF SEPTEMBER 26, 1957, WHICH DISALLOWED YOUR CLAIM FOR$635, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE YOU BY REASON OF AN ERROR IN BID UNDER ARMY CONTRACT NO. DA-36-038-ORD 19695. YOU ASK THAT FURTHER CONSIDERATION BE GIVEN YOUR REQUEST FOR FINANCIAL RELIEF ON THE BASIS OF A MUTUAL MISTAKE.

BY INVITATION NO. ORD-36-038-56-SP-556, ISSUED APRIL 3, 1956, FRANKFORD ARSENAL, BRIDESBURG, PENNSYLVANIA, SOLICITED BIDS--- TO BE OPENED MAY 3, 1956--- ON ITEM NO. 1 (PAGE 2 OF THE INVITATION) FOR FURNISHING 158 EACH OF "CABLE ASSY, IN ACCORDANCE WITH DRG. D7638169, REV. 5, REQN. 6-311-1, CONTROL P-881-D-SNL-F-207.' ON PAGE 3 OF THE INVITATION, UNDER THE HEADING ,SPECIFICATIONS," IT WAS REQUIRED THAT "EACH ITEM SHALL CONFORM TO ITS DRAWING AND TO ALL DRAWINGS AND SPECIFICATIONS LISTED THEREON.' WAS FURTHER PROVIDED THAT "IN ADDITION THE FOLLOWING SPECIFICATIONS WILL ALSO APPLY: * * * USE: MIL I-8660 IN LIEU OF 62-2, 22 MAR. 54; * * *.'

IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID, DATED MAY 2, 1956, QUOTING A UNIT PRICE OF $95.34 FOR EACH CABLE ASSEMBLY, OR A TOTAL PRICE OF $15,063.72 FOR FURNISHING THE 158 ASSEMBLIES CALLED FOR. EIGHT OTHER BIDS WERE RECEIVED ON THIS ITEM, WITH UNIT PRICES RESPECTIVELY OF $116.47, $119.90, $121, $139.70, $140, $195, $225, AND $269.15. YOUR BID BEING THE LOWEST WAS ACCEPTED AND THE CONTRACT WAS AWARDED TO YOU ON JUNE 12, 1956.

THE RECORD SHOWS THAT YOU COMPLETED THE CONTRACT ON NOVEMBER 26, 1956, AND THAT PAYMENTS WERE MADE TO YOU UNDER DATES OF NOVEMBER 7, NOVEMBER 20, AND DECEMBER 12, 1956. ALTHOUGH YOU NOTICED THE ALLEGED ERROR ON OCTOBER 1, 1956, COINCIDENTAL WITH YOUR INITIATION OF PRODUCTION UNDER THE CONTRACT, IT WAS NOT UNTIL AFTER YOU HAD FULLY COMPLETED THE CONTRACT AND AFTER TWO SUBSTANTIAL PAYMENTS HAD BEEN MADE TO YOU, THAT YOU ADVISED THE CONTRACTING OFFICER, BY LETTER DATED DECEMBER 6, 1956, OF THE ALLEGED ERROR. YOU STATED THAT, BECAUSE YOU DID NOT NOTICE THAT SPECIFICATION 62- 6 WAS SUPERSEDED BY MIL-I-8660 CALLING FOR A DIFFERENT TYPE OF INSULATING AND SEALING COMPOUND, YOU FAILED TO INCLUDE THE COST OF THIS COMPOUND MATERIAL IN YOUR BID. YOU CLAIMED THAT YOUR PRO-RATA COST OF THE COMPOUND FOR EACH ASSEMBLY WAS $4.02, AND REQUESTED THAT THE CONTRACT BE AMENDED TO INCREASE THE UNIT PRICE FROM $95.34 TO $99.36. YOU ADMITTED FULL RESPONSIBILITY FOR THE ERROR IN YOUR BID, STATING THAT IT WAS AN INADVERTENT ERROR OF OMISSION.' WHILE YOU STATED THAT YOU WILL NOT CONTEND THAT THE CONTRACTING OFFICER DELIBERATELY SOUGHT TO TAKE ADVANTAGE OF YOUR LOW BID, YOU DID CONTEND THAT THE ERROR WAS SO OBVIOUS BECAUSE OF THE DIFFERENCE BETWEEN YOUR BID AND THE OTHER BIDS RECEIVED THAT YOU SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO REVIEW AND CONFIRM YOUR BID PRIOR TO AWARD OF THE CONTRACT. IN YOUR LETTER OF OCTOBER 4, 1957, PROTESTING OUR DISALLOWANCE OF YOUR CLAIM, YOU FURTHER CONTENDED THAT, SINCE THE CONTRACTING AGENCY FAILED TO RECOGNIZE A MISTAKE IN YOUR BID AND AFFORD YOU AN OPPORTUNITY TO VERIFY AND CONFIRM YOUR BID, THE MISTAKE CAN BE CONSIDERED MUTUAL.

THE CONTRACTING OFFICER, WHO EVALUATED THE BIDS AND EXECUTED THE CONTRACT, REPORTED THAT ANY ERROR THAT MAY HAVE BEEN MADE IN PREPARING YOUR BID WAS NOT APPARENT AT THE TIME BIDS WERE CONSIDERED AND THAT THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT FOUR LOW BIDS WAS NOT SUCH AS TO CAUSE HIM TO SUSPECT ERROR IN YOUR BID. THE CONTRACTING AGENCY CONCURS IN THIS VIEW, AND STATES THAT IN ITS OPINION THIS WAS NOT A SITUATION REQUIRING A CONFIRMATION OF QUOTATION. THE AGENCY, THEREFORE, RECOMMENDS THAT YOUR CLAIM BE DENIED.

THE INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AS TO WHAT WAS REQUIRED UNDER THE SPECIFICATIONS. YOUR BID WAS REGULAR ON ITS FACE, AND ALTHOUGH YOUR PRICE QUOTATION WAS SOMEWHAT LOWER THAN THE NEXT FOUR LOW BIDS THE DIFFERENCE WAS NOT SO GREAT AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF PROBABILITY OF ERROR. IN THE CIRCUMSTANCES, WE AGREE WITH THE CONTRACTING AGENCY THAT THE CONTRACTING OFFICER WAS NOT REQUIRED TO REQUEST YOU TO VERIFY AND CONFIRM YOUR BID PRIOR TO ITS ACCEPTANCE. SEE 28 COMP. GEN. 550, 551.

THE RESPONSIBILITY OF PREPARING A BID SUBMITTED IN RESPONSE TO AN INVITATION IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF YOU FAILED TO INCLUDE AN AMOUNT IN YOUR BID FOR THE COMPOUND MATERIAL PLAINLY CALLED FOR BY THE SPECIFICATIONS, IT IS CLEAR THAT ANY ERROR WHICH RESULTED FROM SUCH OMISSION WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61, WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID:

"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE. THE PARTY COMPLAINING MUST HAVE EXERCISED AT LEAST THE DEGREE OF DILIGENCE "WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON.'"

SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND WOULD NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ON THE PRESENT RECORD, THE ACCEPTANCE OF YOUR BID APPEARS TO HAVE BEEN IN GOOD FAITH, AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES 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. NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT, OR TO MODIFY EXISTING CONTRACTS WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE AMERICAN SALES CORPORATION V. UNITED STATES, 27 F.2D. 389, AFFIRMED 32 F.2D. 31, CERTIORARI DENIED, 280 U.S. 74; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335. FURTHERMORE, IT HAS BEEN HELD THAT A CONTRACTOR WHO EFFECTED COMPLETE DELIVERY WITHOUT ANY OBJECTION OR CLAIM OF MISTAKE IN PRICE STATED IN THE CONTRACT IS PRECLUDED, UPON A SUBSEQUENT ALLEGATION OF ERROR, FROM RECEIVING ANY AMOUNT IN EXCESS OF THE PRICE STATED IN THE CONTRACT. SEE 36 COMP. GEN. 191.

IN THE CIRCUMSTANCES, WE ARE UNABLE TO FIND ANY BASIS FOR GRANTING THE RELIEF YOU REQUEST.