B-142490, JUN. 27, 1960

B-142490, JUN. 27, 1960

TO R. I. METPRO, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 30, 1960, IN WHICH YOU REQUEST PAYMENT OF AN ADDITIONAL AMOUNT OF $271.93 UNDER CONTRACT NO. DA-28-024-ORD-6122, BECAUSE OF AN ALLEGED OMISSION OF AN ITEM OF COST IN YOUR BID SUBMITTED IN RESPONSE TO BID INVITATION NO. ORD 28-024-60-138, PURSUANT TO WHICH THE CONTRACT WAS ISSUED BY RARITAN ARSENAL, ARMY ORDNANCE CORPS.

IN RESPONSE TO THE INVITATION THERE WERE RECEIVED SEVEN UNIT BIDS IN THE RESPECTIVE AMOUNTS OF $0.0034, $0.00435, $0.006, $0.008, $0.0084, $0.0094, AND $0.06, FOR FURNISHING F.O.B. DESTINATIONS 580,800 UNITS OF "BUSHING, ELECTRICAL CONDUCTOR" IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS. YOUR BID OF $0.0034 EACH, BEING THE LOWEST, WAS ACCEPTED AND AWARD OF THE CONTRACT WAS MADE TO YOU UNDER DATE OF NOVEMBER 18, 1959, ON SUPPLY CONTRACT NO. DA-28-024-ORD-6122, PURCHASE ORDER NO. (28-024) 60-0514, AT A TOTAL CONTRACT PRICE OF $1,974.72 FOR THE 580,800 BUSHINGS. THE CONTRACT AND PURCHASE ORDER WERE FORWARDED TO YOU BY LETTER DATED NOVEMBER 19, 1959.

SUBSEQUENTLY, BY LETTER DATED NOVEMBER 25, 1959, RECEIVED IN THE CONTRACTING OFFICE ON NOVEMBER 27, 1959, YOU ALLEGED AN ERROR IN YOUR BID PRICE AND REQUESTED PERMISSION TO WITHDRAW FROM THE CONTRACT, EXPLAINING THAT YOU HAD FAILED TO INCLUDE IN THE BID CERTAIN PACKAGING COSTS IN ACCORDANCE WITH THE BID INVITATION SPECIFICATIONS. YOU STATED THAT THE OMISSION OCCURRED BECAUSE OF HASTE IN PREPARING THE BID AND THROUGH OVERSIGHT THE PACKAGING REQUIREMENTS WERE NOT NOTICED. THE RECORD SHOWS THAT SUBSEQUENT TO THE ALLEGATION OF ERROR IN YOUR BID AND AFTER CONFERENCES WITH GOVERNMENT PERSONNEL, YOU MADE COMPLETE AND FINAL DELIVERY OF THE SUPPLIES UNDER THE CONTRACT ON FEBRUARY 25, 1960, THE EIGHTH AND FINAL SHIPMENT BEING ACCEPTED BY THE GOVERNMENT ON THAT DATE.

THE CONTRACTING OFFICER HAS STATED WITH REFERENCE TO THE PURCHASE CONTRACT TRANSACTION THAT HE DID NOT NOTICE AND DID NOT HAVE REASON TO SUSPECT ANY ERROR IN YOUR BID PRIOR TO ACCEPTANCE THEREOF, INASMUCH AS A REVIEW OF THE BIDS PRIOR TO AWARD INDICATED NO CLOSE PATTERN OF BIDDING SINCE PRICES SHOWED AN UPWARD SPIRAL FROM $0.0034 TO $0.00435 TO $0.006 TO $0.008 TO $0.0084 TO $0.0094 TO $0.06; PREVIOUS PRICE HISTORY AT THE ARSENAL INDICATED THAT A QUANTITY OF 14,440 WAS PURCHASED ON MAY 24, 1955, AT A UNIT PRICE OF $0.0057; AND, ALTHOUGH THE CURRENT BID PRICE WAS LOWER THAN THAT OBTAINED IN 1955, THIS WAS NOT CONSIDERED UNUSUAL IN VIEW OF THE SUBSTANTIALLY LARGER QUANTITY (580,800) AND THE FACT THAT THE SECOND LOW BIDDER'S PRICE WAS ALSO APPROXIMATELY 24 PERCENT LOWER THAN THE LAST PURCHASE PRICE.

THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED AND AWARD OF A CONTRACT MADE, THE CONTRACTOR MUST BEAR THE CONSEQUENCES THEREOF, UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER AT THE TIME OF ACCEPTANCE OF THE BID WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF SUCH ERROR. ALSO, IT IS FUNDAMENTAL THAT, IN THE PREPARATION OF A BID FOR SUBMISSION IN RESPONSE TO AN INVITATION, IT IS THE BIDDER'S RESPONSIBILITY, IN DETERMINING THE WORK TO BE PERFORMED, TO FULLY CONSIDER ALL SPECIFICATIONS, SCHEDULES, DRAWINGS, ETC., WHICH SET FORTH THE REQUIREMENTS AND AMOUNT OF WORK INVOLVED.

YOU ADMIT, AND THE RECORD SUBSTANTIATES THE FACT, THAT ANY ERROR WHICH MAY HAVE BEEN MADE BY YOU IN YOUR BID WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR, THEREFORE, WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. YOU DID NOT ALLEGE ERROR IN YOUR BID UNTIL AFTER AWARD OF THE CONTRACT, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER HAD ANY INFORMATION OTHERWISE OF ANY ERROR IN THE BID. THERE IS NOTHING IN YOUR BID TO SUGGEST THAT AN ERROR HAD BEEN MADE THEREIN, AND YOUR BID PRICE OF $0.0034 IS NOT OUT OF LINE WITH THE NEXT LOW BID OF $0.00435 OR WITH PRICES ON PRIOR PROCUREMENTS OF THE SAME MATERIAL.

SINCE IT APPEARS THAT THE CONTRACTING OFFICER WAS WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR IN YOUR BID, IT MUST BE CONCLUDED THAT HIS ACCEPTANCE OF THE BID WAS IN GOOD FAITH, THUS CONSUMMATING A BINDING CONTRACT. THEREFORE, WE FIND NO LEGAL BASIS FOR GRANTING ANY PRICE INCREASE ON CONTRACT NO. DA-28-024-ORD-6122.