B-135969, MAY 28, 1958

B-135969, MAY 28, 1958

TO HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED APRIL 25, 1958, FILE 5130/134A, WITH ENCLOSURES, FROM MR. C. W. WARD, CONTRACTING OFFICER, VETERANS ADMINISTRATION HOSPITAL, ROANOKE, VIRGINIA, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR BROWNELL DISTRIBUTORS, INC., 306 CANAL STREET, NEW YORK, NEW YORK, ALLEGES IT MADE IN ITS BID ON WHICH PURCHASE ORDER NO. TP-112, DATED FEBRUARY 25, 1958, IS BASED.

SINCE AWARD HAS BEEN MADE IN THE PRESENT CASE, THE DECISION IS BEING ADDRESSED TO YOU. SEE 26 COMP. GEN. 993; AND 28 ID. 401.

BY INVITATION NO. 58-115, ISSUED JANUARY 30, 1958, THE CHIEF, SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL, ROANOKE, VIRGINIA, REQUESTED BIDS FOR THE FURNISHING OF 21 ITEMS OF EQUIPMENT. IN RESPONSE THERETO, BROWNELL DISTRIBUTORS, INC., UNDER DATE OF FEBRUARY 4, 1958, SUBMITTED A BID WITH QUOTATIONS ON 19 OF THE 21 ITEMS LISTED, AMONG WHICH WAS A QUOTATION OF $380, F.O.B. DESTINATION, ON ITEM NO. 1 FOR FURNISHING ONE "COIL WINDING MACHINE: WITH 1/3 H.P., 1750 RPM MOTOR 220/440 VOLTS, 3 PHASE, 60 CYCLE, 4 SPEED GEARSHIFT MOTOR, ACE NO. 71," FOR SHIPMENT DIRECT TO MR. GEORGE W. HIDKIFF, ROUTE 1, FISHERSVILLE, VIRGINIA, A VETERAN. THE CORPORATION'S BID ON THIS ITEM WAS ACCEPTED BY PURCHASE ORDER NO. TP-112 AWARDED FEBRUARY 25, 1958.

IN LETTERS DATED APRIL 8 AND 16, 1958, AND AFTER THE COIL WINDING MACHINE HAD BEEN DELIVERED TO THE VETERAN, BROWNELL DISTRIBUTORS, INC., NOTIFIED THE SUPPLY OFFICER OF THE HOSPITAL THAT IT HAD MADE AN ERROR IN ITS BID PRICE ON ITEM NO. 1. THE CONTRACTOR EXPLAINED THAT IN PREPARING ITS BID REFERENCE WAS MADE TO THE MANUFACTURER'S CATALOG, WHICH SHOWED "A NO. 71 ACE MACHINE COMPLETE WITH 1/3 HP MOTOR, 1750 RPM, JUST AS YOU ORDERED; " THAT IT NOW IS FOUND THAT THE MACHINE DESCRIBED IN THE CATALOG HAS A STANDARD MOTOR WITHOUT GEARSHIFTS AND DOES NOT MEET THE BID SPECIFICATIONS; THAT A GEARSHIFT MOTOR CARRIES A SPECIAL PRICE OF $217.35 NET; AND THAT THIS AMOUNT ADDED TO THE WINDER COST OF $335 NET WOULD BE $552.35, OR AN EXCESS OF $172.35 OVER THE AMOUNT OF THE CORPORATIONS' BID PRICE OF $380. THE CONTRACTOR REQUESTS THAT ITS BID BE CORRECTED TO $552.35, OR, IF THAT CANNOT BE DONE, THAT THE GEARSHIFT MOTOR BE RETURNED TO THE MANUFACTURER WHO WILL SUBSTITUTE A STANDARD MOTOR THEREFOR, WITH FREIGHT COSTS TO BE PAID BY THE CONTRACTOR. TO SUBSTANTIATE ITS CLAIM THE CONTRACTOR TRANSMITTED A COPY OF THE MANUFACTURER'S CATALOG AND PRICE LIST.

WITH REFERENCE TO THE CONTRACTOR'S STATEMENT THAT THE MANUFACTURER'S CATALOG (PAGE 20) SPECIFICALLY STATED THAT THE MANUFACTURER COULD FURNISH THE NO. 71 ACE COIL WINDING MACHINE ,COMPLETE WITH 1/3 HP MOTOR, 1750 RPM, JUST AS YOU ORDERED," AN EXAMINATION OF THE CATALOG DISCLOSES THAT THE DESCRIPTION THEREIN OF THE MODEL NO. 71 MAKES NO REFERENCE TO A GEARSHIFT MOTOR; ON THE CONTRARY, IT STATES "WE HAVE SIMPLIFIED THE SPEED CHANGE BY ELIMINATING CHANGE GEARS, ETC. CHANGING FROM ONE SPEED TO ANOTHER IS VERY SIMPLE: REMOVE THE PULLEY AND SLIDE ON THE SIZE REQUIRED FOR THAT PARTICULAR SPEED.' IT IS ALSO STATED THAT THE JACK SHAFT IS PIVOTED AND ALLOWS FOR THE TAKE UP IN THE BELTS, THAT A RANGE OF SPEEDS FROM 200 TO 525 RPM CAN BE OBTAINED, THAT THREE PULLEYS 5 INCH--- 7 INCH--- 10 INCH ARE FURNISHED WITH THE NO. 71 MACHINE, AND THAT 4 INCHES--- 6 INCHES--- 8 INCHES--- 9 INCHES- - PULLEYS CAN BE FURNISHED EXTRA. IT IS FURTHER STATED THAT "WITH A 1750 RPM MOTOR AND A 3 INCH PULLEY" CERTAIN SPEEDS CAN BE OBTAINED. BENEATH THE DESCRIPTION OF MODEL NO. 71 APPEAR THE WORDS "1/3 H.P. 1750 RPM MOTOR. MOTOR PRICED EXTRA," AND UNDER A PICTURE OF THE MACHINE IS THE LEGEND "NO. 71--- WINDING HEAD, JACK SHAFT, MOTOR RAILS BOLTED ON BASE THAT CAN BE SET ON YOUR BENCH.' THE PRICE LIST FORWARDED WITH THE CONTRACTOR'S CLAIM SHOWS:

TABLE

"NO. 71--- ACE COIL WINDING MACHINE WITH MOTOR BASE,

JACK SHAFT AND MOTOR RAILS ................ $335.00

WITH 1/3 H.P., 220/440 VOLTS, 3-PHASE,

60 CYCLE 1700 RPM MOTOR ................... $380.00"

NO 1/3 H.P. 1750 RPM GEARSHIFT FOUR-SPEED MOTOR, SPECIFIED IN THE INVITATION, IS SHOWN ON THE PRICE LIST; HOWEVER, UNDER MODEL NO. 70, IT IS STATED "WITH 1/2 H.P. GEARSHIFT FOUR-SPEED MOTOR. PRICE ON APPLICATION.'

THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 526; 8 ID. 362, 20 ID. 652, 657.

THE SUBMISSION OF A BID IN RESPONSE TO THE INVITATION IN THIS CASE WAS, OF COURSE, VOLUNTARY. THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IT IS CLEAR THAT ANY ERROR BROWNELL DISTRIBUTERS MAY HAVE MADE IN ITS BID ON ITEM NO. 1 WAS THE RESULT OF ITS FAILURE TO INTERPRET PROPERLY THE SUPPLIER'S CATALOG DESCRIPTION AND PRICE LIST OR TO ITS OVERSIGHT OF SOME OF THE DETAILS THEREIN AS TO THE ACE NO. 71 COIL WINDING MACHINE. SUCH ERROR WAS DUE SOLELY TO THE NEGLIGENCE OF THE BIDDER AND WAS NOT INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. THE ERROR WAS UNILATERAL AND NOT MUTUAL AND, THEREFORE, DOES NOT ENTITLE THE BIDDER TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE BID OF BROWNELL DISTRIBUTORS, INC., WAS REGULAR ON ITS FACE. ITS BID PRICE OF $380 WAS NOT OUT OF LINE WITH THE ONLY OTHER RESPONSIVE BID RECEIVED ON ITEM NO. 1, THAT OF $395 FROM ARMATURE COIL EQUIPMENT, INC., THE MANUFACTURER OF THE ACE NO. 71 COIL WINDING MACHINE. THE CONTRACTOR DID NOT ALLEGE ERROR IN ITS BID UNTIL AFTER AWARD OF THE PURCHASE CONTRACT AND DELIVERY OF THE MACHINE THEREUNDER. IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER HAD ANY REASON TO SUSPECT ERROR IN THE CORPORATION'S BID OR THAT HE HAD ANY INFORMATION TO PUT HIM ON NOTICE OF PROBABILITY OF ERROR. THEREFORE, SINCE IT APPEARS THAT THE CONTRACTING OFFICER WAS WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR IN THE BID OF BROWNELL DISTRIBUTORS ON ITEM NO. 1, IT MUST BE CONCLUDED THAT HIS ACCEPTANCE THEREOF WAS IN GOOD FAITH. SUCH ACCEPTANCE RESULTED IN A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. 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 CONTRACT VESTED IN THE UNITED STATES THE RIGHT TO HAVE PERFORMANCE STRICTLY IN ACCORDANCE WITH ITS TERMS. IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, 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 AN EXISTING CONTRACT, WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED, 292 U.S. 645; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335.

IN THE CIRCUMSTANCES, WE ARE UNABLE TO FIND ANY LEGAL BASIS FOR GRANTING THE RELIEF REQUESTED BY BROWNELL DISTRIBUTERS, INC. ..END :