B-141294, DEC. 8, 1959

B-141294, DEC. 8, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 17, 1959, FROM CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, DEPARTMENT OF THE ARMY, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR DAIMEI DONWA KOGYO COMPANY, LTD., ALLEGES IT MADE IN ITS PROPOSAL ON WHICH CONTRACT NO. DA-92-557-FEC-31363, DATED JUNE 15, 1959, IS BASED.

BY REQUEST FOR PROPOSALS NO. 92-557-59-668-N, ISSUED MAY 23, 1959, THE U.S. ARMY PROCUREMENT AGENCY, JAPAN, REQUESTED PROPOSALS FOR INSTALLING U.S. GOVERNMENT FURNISHED MATERIAL AND TO PROVIDE AND INSTALL ADDITIONAL MATERIAL FOR OUTSIDE TELEPHONE CABLE PLANT AT TACHIKAWA AIR BASE, HONSHU, JAPAN. PRELIMINARY ORIENTATION WAS CONDUCTED THE SAME DAYS FOLLOWED BY TECHNICAL ORIENTATION ON MAY 25, 1959, ON WHICH OCCASIONS A REPRESENTATIVE OF THE CONTRACTOR WAS PRESENT. THE CONTRACTOR SUBMITTED A PROPOSAL OF $11,460. THE OTHER OFFERS RECEIVED WERE $12,507 AND $12,000. THE GOVERNMENT ESTIMATE EAS $9,618.03. THE CONTRACTING OFFICER STATED THAT SINCE THE LOW OFFER WAS SO MUCH MORE THAN THE GOVERNMENT'S ESTIMATE, NEGOTIATIONS WERE HAD WITH DAIMEI DENWA KOGYO WHEREIN THE COMPANY OFFERED TO PERFORM THE SERVICES FOR $9,791. THIS OFFER WAS ACCEPTED ON JUNE 15, 1959.

THE CONTRACTOR STATED IN HIS LETTERS OF JULY 28 AND AUGUST 11, 1959, THAT HE HAD NO EXPERIENCE IN THE USE OF THE TYPES OF TERMINAL BOXES REQUIRED TO BE FURNISHED AND THAT HE MADE A MISTAKE IN ESTIMATING THEIR COST. REQUESTED THAT THE TOTAL AMOUNT OF THE CONTRACT BE INCREASED BY $2,858 OR SUCH AMOUNT AS WAS DEEMED APPROPRIATE.

THE SUCCESSOR CONTRACTING OFFICER STATED THAT A REPRESENTATIVE OF THE CONTRACTOR INDICATED THAT THE CONTRACTOR DID NOT CHECK THE SPECIFICATION OR INQUIRE FROM ANY SUPPLIER OR MANUFACTURER AS TO THE COST OF THE TERMINAL BOXES UNDER THE CONTRACT PRIOR TO SUBMITTING HIS OFFER, AND THAT HE CALCULATED HIS OFFER ON THE BASIS OF A NIPPON TELEGRAPH AND TELEPHONE PUBLIC CORPORATION SPECIFICATION AND ASSUMED THAT THE CONTRACT SPECIFICATION WAS THE SAME. ALSO, HE STATED THAT THE CONTRACTOR HAS NOT ALLEGED ANY AMBIGUITIES IN THE CONTRACT SPECIFICATIONS AND THAT THE DIFFERENCE BETWEEN THE CONTRACTOR'S OFFER AND THE OTHER OFFERS WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR SINCE THE CONTRACTOR'S ORIGINAL AND FINAL PRICES EXCEEDED THE GOVERNMENT'S ESTIMATE.

ERROR WAS NOT APPARENT ON THE FACE OF THE PROPOSAL, AND SINCE THE GOVERNMENT'S ESTIMATE WAS LESS THAN THE CONTRACTOR'S PROPOSAL THERE APPEARS NO REASON TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE PROPOSAL. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S OFFER WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY IT UNTIL AFTER AWARD OF THE CONTRACT--- AND THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S.C 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE OFFER, AS ALLEGED, IT MUST BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND, SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, AND THE OFFER WAS ACCEPTED IN GOOD FAITH AND WITHOUT NOTICE OF ANY DEFECT IN THE OFFER, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATIONS UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :