B-134327, NOV. 18, 1957

B-134327, NOV. 18, 1957

TO WISCONSIN MOTOR CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 24, 1957, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 27, 1955, WHICH DISALLOWED YOUR CLAIM FOR $73.15, REPRESENTING TRANSPORTATION CHARGES ON SUPPLIES FURNISHED THE DEPARTMENT OF THE NAVY UNDER PURCHASE ORDER NO. N160S-12763 (P).

THE RECORD SHOWS THAT IN CONFORMANCE WITH YOUR PROPOSAL RECEIVED BY THE YARDS AND DOCKS SUPPLY OFFICE, PORT HUENEME, CALIFORNIA, ON APRIL 13, 1953, THERE WAS ISSUED NEGOTIATED PURCHASE ORDER NO. N160S-12763 (P) UNDER DATE OF APRIL 22, 1953, CALLING FOR DELIVERY OF A QUANTITY OF SUPPLIES, ALL TRANSPORTATION CHARGES TO BE PAID TO CERTAIN DESTINATIONS. BY LETTER OF MAY 15, 1957, YOU ACKNOWLEDGED RECEIPT OF THE PURCHASE ORDER AND STATED THAT DUE TO AN ERROR ON YOUR PART YOU FAILED TO INDICATE THAT YOUR BID WAS MADE ON THE BASIS OF F.O.B. YOUR PLANT AND REQUESTED THAT YOUR CONTRACT BE SO MODIFIED. DELIVERY WAS ACCOMPLISHED ON JUNE 3, 1953, AND THEREAFTER THE CONTRACT WAS MODIFIED BY CHANGE ORDERS 1 AND 2 PROVIDING FOR DELIVERY OF THE SUPPLIES F.O.B. YOUR PLANT. IN ACCORDANCE THEREWITH IT APPEARS YOU WERE PAID THE AMOUNT OF THE TRANSPORTATION CHARGES. CHANGE ORDER NO. 3 CANCELLED CHANGE ORDERS NOS. 1 AND 2 AND PROVIDED THAT THE TERMS OF THE PURCHASE ORDER BE RETURNED TO THEIR ORIGINAL FORM. IN ACCORDANCE WITH THIS CHANGE ORDER YOU REFUNDED THE TRANSPORTATION CHARGES OF $73.15.

IT MAY NOT BE PRESUMED THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE OF AN ERROR IN YOUR BID--- THIS FACT IS ADMITTED IN YOUR LETTER OF MAY 15, 1953--- WHEREIN YOU STATED THAT "WE FEEL IT IS OUR ERROR, BUT HOPE THAT YOU WILL BE ABLE TO DO SOMETHING FOR US.' THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 G.S. 645. THUS, THE CHANGE ORDERS ISSUED IN CONTRADICTION OF THE TERMS OF THE ACCEPTED BID CANNOT BE CONSIDERED LEGAL. IT IS A WELL KNOWN FACT THAT WHERE AN AGENT OF THE GOVERNMENT ACTS IN EXCESS OF THE AUTHORITY VESTED IN HIM, HIS ACT FROM A LEGAL STANDPOINT IS NO LONGER AN ACT OF THE GOVERNMENT. THE UNDERWRITER, 6 F.2D 937. INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVID CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IT IS CLEAR THAT SUCH AN ERROR AS WAS MADE IN YOUR BID WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 652; AND 26 ID. 415.