B-145361, MAR. 30, 1961

B-145361, MAR. 30, 1961

TO PUBLIC PRINTER, GOVERNMENT PRINTING OFFICE:

REFERENCE IS MADE TO A LETTER DATED MARCH 16, 1961, WITH ENCLOSURES, FROM THE ACTING PUBLIC PRINTER, RELATING TO A MISTAKE IN BID ALLEGED BY THE RUFUS H. DARBY PRINTING COMPANY, INC., 2414 DOUGLAS STREET, N.E., WASHINGTON, D.C., AFTER THE AWARD OF A CONTRACT TO THAT CONCERN FOR FURNISHING 11,821 COPIES OF A BOOK CONTAINING 1,628 PAGES PLUS ONE SET OF FILM NEGATIVES, THE FIRST SHIPMENT OF 6,000 COPIES TO BE MADE ON OR BEFORE MARCH 28, 1961, AND THE BALANCE TO BE SHIPPED ON OR BEFORE APRIL 14, 1961.

THE RECORD INDICATES THAT TWELVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION FOR BIDS, THE LOWEST BEING THAT SUBMITTED BY THE RUFUS H. DARBY PRINTING COMPANY, INC., AT THE BID PRICE OF $11,250. THE SECOND LOWEST BID WAS SUBMITTED BY CRAFTSMAN PRESS, INC., AT THE BID PRICE OF $11,850, AND THE REMAINING TEN BIDS RANGED FROM $11,972.05 TO $30,052.53. IT WAS REPORTED IN THE LETTER OF MARCH 16, 1961, THAT AN AWARD WAS MADE TO THE LOW BIDDER AND ON FEBRUARY 17, 1961, THERE WAS ISSUED AND FORWARDED TO THE CONTRACTOR PURCHASE ORDER NO. 15300 COVERING 11,821 COPIES OF THE BOOK PLUS ONE SET OF FILM NEGATIVES FOR A TOTAL COST OF $11,250.

UNDER DATE OF FEBRUARY 20, 1961, THE VICE PRESIDENT OF THE CONTRACTOR ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT THAT CONCERN COULD NOT ACCEPT THE JOB SINCE AN ERROR HAD BEEN MADE IN QUOTING THE AMOUNT OF $11,250 AS THE BASE BID, IT BEING STATED THAT THEY INTENDED TO QUOTE A PRICE OF $17,250. THE ALLEGED ERROR WAS CONFIRMED BY THE CONTRACTOR'S LETTER OF FEBRUARY 21, 1961, THERE BEING TRANSMITTED THEREWITH A THERMOFAX COPY OF THE INVITATION TO BID FORM SHOWING A PRICE OF $17,250 FOR 11,821 COPIES AND A PRICE OF $101 FOR ADDITIONAL HUNDREDS. THE CONTRACTOR DID NOT SUBMIT AN ESTIMATE TO SHOW THE ITEMS OF PRODUCTION, ETC., WHICH WERE USED TO ARRIVE AT THE PRICE $17,250, BUT OFFERED TO DO SO IF REQUESTED.

IT WAS REPORTED FURTHER IN THE LETTER OF MARCH 16, 1961, THAT UPON RECEIPT BY YOUR OFFICE OF NOTICE THAT A MISTAKE IN BID HAD BEEN MADE, IT WAS THE INTENTION OF YOUR OFFICE TO REQUEST OUR DECISION AS TO WHETHER OR NOT THE CONTRACTOR SHOULD BE REQUIRED TO PERFORM THE ORDER AT THE QUOTED PRICE OF $11,250, AND TO THAT END THE INTERNAL REVENUE SERVICE--- THE AGENCY WHICH HAD REQUISITIONED THE BOOKS--- WAS REQUESTED TO PERMIT AN EXTENSION OF THE DELIVERY DATE TO ALLOW FOR THE NECESSARY TIME TO OBTAIN A DECISION. THIS REQUEST WAS DENIED AND SINCE THE DARBY PRINTING COMPANY, INC., HAD REFUSED TO PERFORM THE WORK THEY WERE DECLARED TO BE IN DEFAULT OF THEIR CONTRACT AND WERE ADVISED THAT ANY EXCESS COST OCCASIONED BY THE DEFAULT WOULD BE CHARGED TO THEM. THEREAFTER, AN AWARD WAS MADE TO CRAFTSMAN PRESS, INC., THE SECOND LOW BIDDER, AT ITS QUOTED PRICE OF $11,850.

THE RECORD SHOWS THAT WHEN THE BIDS WERE EXAMINED BY THE CONTRACTING OFFICER HE DID NOT NOTE THAT A POSSIBLE ERROR EXISTED IN THE BID SUBMITTED BY THE DARBY PRINTING COMPANY, INC., THE PRICE NOT BEING OUT OF LINE WITH THE OTHER BIDS RECEIVED. IN REFUSING TO RECOMMEND THAT THE DARBY PRINTING COMPANY, INC., BE RELIEVED FROM PAYMENT OF THE EXCESS COST ARISING OUT OF ITS DEFAULT, THE CONTRACTING OFFICER REFERRED TO THE FACT THAT THERE WAS A SPREAD OF ONLY $745 IN THE FIRST FOUR LOW BIDS, AND THAT SINCE ALL OF THE LOW BIDS APPEARED TO BE IN ORDER HE HAD NO REASON TO SUSPECT THAT THE LOW BIDDER HAD MADE AN ERROR.

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 CT.CL. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR IN THIS CASE WAS UNILATERAL--- NOT MUTUAL--- THE CONTRACTOR IS NOT ENTITLED TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE RECORD SUBMITTED IN THIS CASE FULLY SUPPORTS THE ACTION OF YOUR OFFICE IN TERMINATING THE CONTRACT FOR DEFAULT AND AWARD OF A NEW CONTRACT TO CRAFTSMAN PRESS, INC. THERE CAN BE NO QUESTION THAT UPON THE AWARD OF THE CONTRACT HEREIN THE UNITED STATES BECAME VESTED WITH THE RIGHT TO HAVE THE CONTRACT COMPLETED IN ACCORDANCE WITH ITS TERMS AND TO RECOVER ANY EXCESS COSTS IN THE EVENT OF A DEFAULT. IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. SEE SIMPSON V. UNITED STATES, 172 U.S. 372; UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, AND CERTIORARI DENIED, 280 U.S. 574. SEE ALSO THE CASE OF PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 CT.CL. 327.

UPON COMPLETION OF THE CONTRACT BY CRAFTSMAN PRESS, INC., A DEMAND SHOULD BE MADE UPON THE RUFUS H. DARBY PRINTING COMPANY, INC., FOR PAYMENT OF THE EXCESS COSTS DETERMINED TO BE DUE AND IN THE EVENT THE DEFAULTING CONTRACTOR REFUSES TO REMIT THE AMOUNT OF SUCH COSTS THE MATTER SHOULD BE REFERRED TO OUR CLAIMS DIVISION FOR APPROPRIATE ACTION.