B-135676, JUN. 13, 1958

B-135676, JUN. 13, 1958

TO INTERNATIONAL METAL POLISH COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 26 AND MAY 5, 1958, WITH RESPECT TO THE RELIEF REQUESTED FROM THE RESULTS OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH CONTRACT NO. GS 04S-6945 WAS AWARDED BY THE GENERAL SERVICES ADMINISTRATION.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. AT-43643-CS3A, ISSUED ON DECEMBER 27, 1957, BY THE GENERAL SERVICES ADMINISTRATION, FEDERAL SUPPLY SERVICE, ATLANTA, GEORGIA, YOU SUBMITTED A BID OFFERING TO FURNISH, AT THE PRICES SET FORTH THEREIN, SUCH QUANTITIES OF VARIOUS ITEMS OF FLOOR AND AUTOMOBILE WAX AS MIGHT BE REQUIRED BY THE GOVERNMENT FOR AN APPROXIMATE SIX MONTH'S PERIOD, OR FROM THE DATE OF THE AWARD TO JULY 30, 1958. YOUR BID WAS ACCEPTED AS TO ITEM NOS. 3 AND 4 COVERING APPROXIMATELY 2,400 FOUR -POUND CANS OF WAX AT $0.68 A CAN FOR ITEM NO. 3 AND APPROXIMATELY 4,800 ONE-POUND CANS OF WAX AT $0.38 A CAN FOR ITEM NO. 4, OR FOR A TOTAL ESTIMATED PRICE FOR THE TWO ITEMS OF $3,456. THE BID WAS ACCEPTED ON ITEMS NOS. 3 AND 4 ON JANUARY 27, 1958, THEREBY CONSUMMATING CONTRACT NO. GS-04S-6945. BY LETTERS DATED MARCH 7, 1958, AND MARCH 18, 1958, ADDRESSED TO THE ATLANTA OFFICE OF THE FEDERAL SUPPLY SERVICE, YOU ALLEGED THAT AN ERROR HAD BEEN MADE IN COMPUTING THE RAW MATERIAL COST OF ITEM NO. 3 OF YOUR BID WHICH RESULTED IN AN OMISSION OF $0.20 FROM THE COST INCLUDED IN THE UNIT PRICE OF $0.68 QUOTED BY YOU FOR FOUR-POUND CANS, EXCLUSIVE OF ANY AMOUNT TO COVER PROFIT. YOU ADVISED IN YOUR LETTERS THAT IF THE COSTS FOR ITEM NO. 3 HAD BEEN PROPERLY COMPUTED YOU WOULD HAVE ARRIVED AT A FAIR BID PRICE OF $1.08 EACH FOR THE FOUR-POUND CANS OF WAX DELIVERED. YOU NOW ARE REQUESTING A MODIFICATION OF THE $0.68 UNIT CONTRACT PRICE FOR ITEM NO. 3 TO $0.82, WHICH YOU STATE WILL HELP TO MAKE UP THE LOSS INVOLVED.

AN ERROR IN A BID FIRST ALLEGED AFTER A CONTRACT HAS BEEN AWARDED, SUCH AS IN THIS CASE, PRESENTS NO BASIS TO SUPPORT REFORMATION OF THE CONTRACT UNLESS IT CAN BE SHOWN THAT THE MISTAKE WAS MUTUAL OR WAS SO APPARENT AS TO CHARGE THE CONTRACTING OFFICER WITH NOTICE OF THE PROBABILITY OF THE MISTAKE. SEE 23 COMP. GEN. 596 AND THE CASES CITED THEREIN. IN THIS CONNECTION, THE RECORD BEFORE OUR OFFICE SHOWS THAT THE OMISSION IN COMPUTING THE RAW MATERIALS' COST FOR ITEM NO. 3 OF YOUR BID WAS STRICTLY A UNILATERAL MISTAKE, AND THAT NO BASIS APPEARS FOR CHARGING THE CONTRACTING OFFICER WITH NOTICE OF THE PROBABILITY OF AN ERROR IN YOUR BID, SINCE THERE WAS NOTHING ON THE FACE OF THE BID ITSELF OR IN THE IMMEDIATE ATTENDANT CIRCUMSTANCES TO WARRANT THE CONTRACTING OFFICER QUESTIONING THE ACCURACY THEREOF. COMPARISON WITH OTHER BIDS FAILS TO INDICATE ANY LIKELIHOOD OF ERROR, SINCE ONE OTHER RESPONSIVE BID WAS RECEIVED FOR ITEM NO. 3 AT $0.70 FOR EACH FOUR POUND CAN, ANOTHER FOR $0.70 F.O.B. FACTORY, AND FOUR OTHER APPARENT RESPONSIVE BIDS AT UNIT PRICES OF $0.735, $0.888, $0.95 AND $1. THE ACCEPTANCE OF YOUR BID UNDER THE CIRCUMSTANCES REPORTED MUST BE HELD TO HAVE BEEN MADE IN GOOD FAITH AND SUCH AN ACCEPTANCE CONSUMMATES A VALID CONTRACT WHICH FIXES THE RIGHTS AND LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH CONTRACTS.

ACCORDINGLY, THERE IS NO LEGAL BASIS UNDER WHICH AN INCREASE IN THE PRICE OF ITEM NO. 3 OF ..END :