B-144697, JAN. 24, 1961

B-144697, JAN. 24, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 21, 1960, WITH ENCLOSURES, FROM CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR THE WILLIAM T. JOYCE COMPANY ALLEGES IT MADE IN ITS BID UPON WHICH CONTRACT NO. DA-23-065-ENG-10039, DATED SEPTEMBER 22, 1960, IS BASED.

BY INVITATION FOR BIDS NO. ENG 23-065-61-48, DATED SEPTEMBER 1, 1960, OPENING DATE SEPTEMBER 19, 1960, THE PURCHASING SECTION, U.S. ARMY ENGINEER DISTRICT FOR ST. LOUIS, MISSOURI, REQUESTED BIDS FOR THE FURNISHING OF LATTICE STRIPS, PRESSURE-TREATED IN ACCORDANCE WITH FEDERAL SPECIFICATION TT-W-00571D. WILLIAM T. JOYCE COMPANY OFFERED TO FURNISH THE STRIPS FOR $1,910. THE OTHER BIDS RECEIVED WERE $4,576.50, $4,981.75, AND $7,950. IN VIEW OF THE DISPARITY BETWEEN THE BID PRICES, THE CONTRACTING OFFICER HAD REASON TO SUSPECT THAT A MISTAKE HAD BEEN MADE BY JOYCE. THEREFORE, PRIOR TO AWARD, THE CONTRACTING OFFICER TELEPHONED THE BIDDER ON SEPTEMBER 19, 1960, TO VERIFY THE CORRECTNESS OF ITS BID. CONFIRMATORY TELEGRAM WAS RECEIVED THE SAME DAY BY THE PURCHASING AGENCY STATING THAT THE PRICE AS BID WAS CORRECT. IN VIEW OF THE VERIFICATION, AWARD OF THE CONTRACT WAS MADE TO JOYCE ON SEPTEMBER 22, 1960. IN LETTER DATED SEPTEMBER 29, 1960, CONFIRMING TELEPHONE CONVERSATION OF THAT DATE, CONTRACTOR ALLEGED ERROR IN BID AND REQUESTED CANCELLATION. IT WAS STATED THAT THE COMPANY HAD ESTIMATED ITS BID ON THE BASIS OF A THREE-MINUTE TYPE DIP TREATMENT COSTING ONE-EIGHTH CENT PER FOOT, RATHER THAN THE COMPLETE PRESSURE TREATMENT REQUIRED BY THE SPECIFICATIONS, WHICH WOULD COST AT LEAST AN ADDITIONAL ONE-HALF CENT PER FOOT, OR $660 FOR THE CONTRACT QUANTITY. THE COMPANY ALLEGED THAT THE ERROR RESULTED CHIEFLY FROM (1) OVERSIGHT OR CARELESSNESS; (2) IT DID NOT HAVE THE FORMAL BID AT THE TIME OF PREPARING THE LETTER TYPE BID WHICH IT MAILED IN ON SEPTEMBER 16, ONE DAY BEFORE ITS FORMAL BID; (3) A TYPIST COPIED THE PRICES FROM THE LETTER BID TO THE FORMAL BID FORM WITHOUT STUDYING ALL OF THE PERTINENT INFORMATION REGARDING TREATMENT; AND THAT IT DID NOT HAVE TIME TO READ THE CONTRACT THOROUGHLY AND CATCH THE ERROR.

THE SOLE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE COMPANY WAS ALONE RESPONSIBLE FOR THE PREPARATION OF ITS BID AND WAS GIVEN OPPORTUNITY PRIOR TO AWARD AND THEREAFTER TO ASCERTAIN THE CORRECTNESS OF ITS BID PRICE AND WHETHER THE EQUIPMENT OFFERED WOULD MEET SPECIFICATIONS. THE ERROR AS ALLEGED BY THE COMPANY WAS UNILATERAL AND NOT CONTRIBUTED TO BY THE GOVERNMENT AND, HENCE, DOES NOT ENTITLE THE COMPANY TO THE RELIEF CLAIMED. SEE 26 COMP. GEN. 415; 36 ID. 27.

THE RECORD REASONABLY ESTABLISHED THAT THE GOVERNMENT DID ALL THAT IT WAS REASONABLY REQUIRED TO DO TO ASCERTAIN THE CORRECTNESS OF THE COMPANY'S BID; IN FACT, THE COMPANY WAS SPECIFICALLY REQUESTED NOT ONLY TO VERIFY ITS BID PRICE, BUT, ALSO, TO VERIFY THE ITEM TO BE FURNISHED IF IT WERE AWARDED THE CONTRACT. IT WAS NOT UNTIL AFTER THE COMPANY UNEQUIVOCALLY CONFIRMED ITS BID PRICE OF THE ITEM TO BE FURNISHED--- ADMITTEDLY WITHOUT TAKING ANY STEPS TO REVIEW ITS COMPUTATIONS--- THAT THE CONTRACTING OFFICER CONSIDERED IT CORRECT AND PROPER FOR AWARD. HAD THE CONTRACTING OFFICER THEREAFTER NOT AWARDED THE CONTRACT TO THE COMPANY AS THE LOWEST RESPONSIBLE BIDDER HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 97 A 774; SHRIMPTON MFG. COMPANY V. BRIN, 125 S.W. 942; ALABAMA SHIRT AND TROUSER COMPANY V. UNITED STATES, 121 CT.CL. 313. MOREOVER, THE FACTS OF RECORD PRECLUDE ANY ASSUMPTION OF BAD FAITH OR ARBITRARY ACTION ON THE PART OF THE CONTRACTING OFFICER. 27 COMP. GEN. 17.

THE CONTRACT, AS EXECUTED, REPRESENTED THE FINAL UNDERSTANDING OF THE PARTIES THERETO AND FIXED ALL RIGHTS AND LIABILITIES THEREUNDER. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED IN THE ABSENCE OF ADEQUATE CONSIDERATION AND NO AGENT OF THE GOVERNMENT MAY WAIVE SUCH VESTED RIGHT FOR CONSIDERATION OF HARDSHIP OR EQUITIES IN FAVOR OF THE CONTRACTOR. SEE 22 COMP. GEN. 260; DAY V. UNITED STATES, 245 U.S. 159.

ACCORDINGLY, ON THE PRESENT RECORD, NO LEGAL BASIS EXISTS FOR MODIFYING THE PRICE SPECIFIED IN THE CONTRACT.