B-135633, APR. 9, 1958

B-135633, APR. 9, 1958

TO THE HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER, GOVERNMENT PRINTING OFFICE:

REFERENCE IS MADE TO YOUR LETTERS OF MARCH 25 AND MARCH 31, 1958, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR THE U.S. TAG AND TICKET COMPANY ALLEGES IT MADE IN ITS BID DATED MARCH 5, 1958.

THE GOVERNMENT PRINTING OFFICER UNDER JACKET NO. 456280 REQUESTED BIDS FOR FURNISHING THE PRODUCTION OF 500,000 SHIPPING TAGS, SIZE 6 1/4 BY 3 1/8 INCHES, DRILLED WITH ONE 3/8 INCH HOLE TO BE REINFORCED WITH A FIBER PATCH AND A METAL EYELET. IN RESPONSE THERETO THE U.S. TAG AND TICKET COMPANY SUBMITTED A BID DATED MARCH 5, 1958, OF $1,785. EIGHT OTHER BIDS RECEIVED RANGED IN PRICE FROM $1,845 TO $2,310.

YOU STATE IN YOUR LETTER OF MARCH 25, 1958, THAT AWARD WAS MADE TO THE COMPANY AS THE LOW BIDDER AND A NOTICE OF AWARD WAS MAILED TO THE COMPANY ON MARCH 17, 1958; THAT ON MARCH 18, 1958, BEFORE THE COMPANY RECEIVED YOUR PURCHASE ORDER, A REPRESENTATIVE OF THE COMPANY TELEPHONED THE CONTRACTING OFFICER AND STATED HE COULD NOT PRODUCE THIS WORK BECAUSE OF THE REQUIREMENT FOR A 3/8-INCH METAL EYELET; THAT THE COMPANY'S EQUIPMENT FOR INSERTING A 3/8-INCH METAL EYELET HAD NOT BEEN OPERATIVE FOR SOME TIME AND THAT ITS ESTIMATOR HAD OVERLOOKED THIS REQUIREMENT AT THE TIME THE BID WAS PREPARED.

IN YOUR REPLY TO AN INFORMAL REQUEST FOR ADVICE AS TO WHETHER THE COMPANY NOTIFIED YOUR OFFICE OF THE ERROR IN BID BEFORE OR AFTER RECEIPT OF THE NOTICE OF AWARD, YOU STATE IN THE LETTER OF MARCH 31, 1958, THAT THE COMPANY RECEIVED THE NOTICE OF AWARD PRIOR TO ITS NOTICE TO YOU THAT IT HAD OVERLOOKED THE REQUIREMENT FOR A 3/8-INCH METAL EYELET.

THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER A MATHEMATICAL OR OTHER ERROR WAS MADE IN THE COMPANY'S BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD. THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE COMPANY. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 163. IF AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE COMPANY'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. SEE ALSO UNITED STATES V. SABIN METAL CORPORATION 151 F.SUPP. 683.

IN VIEW OF THE FOREGOING, PARTICULARLY SINCE THE AWARD WAS MADE BEFORE A MISTAKE IN BID WAS ALLEGED, THERE APPEARS NO LEGAL BASIS TO AUTHORIZE YOU TO CANCEL PURCHASE ORDER NO. 12582 OR THE AWARD. THE PAPERS, EXCEPT THE TWO LETTERS DATED MARCH 25 AND MARCH 31, 1958, ARE RETURNED AS REQUESTED.