B-146056, JUN. 28, 1961

B-146056, JUN. 28, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 2, 1961, WITH ENCLOSURES, FORWARDED IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY FOR INSTALLATIONS AND LOGISTICS BY THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING OUR DECISION AS TO WHETHER THERE MAY BE GRANTED THE RELIEF SOUGHT BY THE WILL CORPORATION OF WEST VIRGINIA UNDER PURCHASE ORDER NO. FD1-404-2204 IN VIEW OF AN ERROR ALLEGED TO HAVE BEEN MADE IN THE RELATED BID.

IN RESPONSE TO INVITATION NO. CML-18-064-61-16, AS AMENDED, WHICH WAS ISSUED ON SEPTEMBER 27, 1960, BY THE ARMY CHEMICAL CORPS BIOLOGICAL LABORATORY, FORT DETRICK, FREDERICK, MARYLAND, THE WILL CORPORATION OF WEST VIRGINIA SUBMITTED A BID OFFERING TO FURNISH ITEMS NOS. 1 THROUGH 7, COVERING ONE SPECTROPHOTOMETER, AUTOMATIC RATIO RECORDING, ETC., AND ACCESSORIES FOR A TOTAL PRICE OF $8,914. THE ALLEGED ERROR RELATES TO THE CORPORATION'S BID FOR ITEM NO. 1, WHICH COVERED THE SPECTROPHOTOMETER, IN THE AMOUNT OF $7,975. FIVE OTHER RESPONSIVE BIDS WERE RECEIVED FOR ITEM NO. 1, EACH IN THE AMOUNT OF $9,484 AND A SIXTH ONE WAS RECEIVED IN THE AMOUNT OF $11,086. BY TELEGRAM DATED NOVEMBER 16, 1960, THE DAY FOLLOWING THE OPENING OF BIDS, THE WILL CORPORATION REQUESTED THAT ITS BID BE WITHDRAWN. BY LETTER DATED NOVEMBER 22, 1960, THE CORPORATION WAS ADVISED THAT THE CONTRACTING OFFICER WAS WITHOUT AUTHORITY TO GRANT SUCH A WITHDRAWAL AND IN TURN THE CORPORATION WAS REQUESTED TO VERIFY THE PRICES QUOTED UNDER THE INVITATION. SUBSEQUENTLY, THE WILL CORPORATION FORWARDED ANOTHER TELEGRAM DATED NOVEMBER 29, 1960, TO THE CONTRACTING OFFICE ASKING THAT ITS PREVIOUS REQUEST FOR WITHDRAWAL OF THE BID BE DISREGARDED BUT STATED THAT IT DESIRED TO HAVE ITEM NO. 1 AMENDED TO READ $9,000. LETTER DATED DECEMBER 15, 1960, THE WILL CORPORATION WAS ADVISED THAT IT WAS THE LOW BIDDER ON ITEMS NOS. 1 THROUGH 7 AND THAT IF ITS CLAIM FOR RELIEF WAS MADE ON THE BASIS OF A MISTAKE IN BID IT MUST FURNISH DETAILED EVIDENCE IN SUPPORT THEREOF. SUBSEQUENTLY, BY A TELEGRAM DISPATCHED ON JANUARY 9, 1961, THE WILL CORPORATION WAS FURTHER ADVISED THAT UPON ITS FAILURE TO SUBMIT THE INFORMATION PREVIOUSLY REQUESTED REGARDING ANY ERROR THAT MIGHT HAVE BEEN MADE IN ITS BID ON OR BEFORE JANUARY 12, 1961, AN AWARD WOULD BE MADE TO IT ON THE BASIS OF ITS LOW BID. PURCHASE ORDER NO. FD1-404-2204 ACCORDINGLY WAS AWARDED TO THE CORPORATION AND MAILED TO IT ON JANUARY 13, 1961. A LETTER FROM THE WILL CORPORATION, ALSO DATED JANUARY 13, 1961, WAS RECEIVED IN THE CONTRACTING OFFICE ON JANUARY 16, 1961, ADVISING THAT AN ERROR IN ITS BID HAD OCCURRED WHEN A NEW EMPLOYEE HAD EXTENDED THE PRICE OF THE BECKMAN DK-2 MODEL SPECTROPHOTOMETER, COVERED BY ITEM NO. 1,WITHOUT TAKING INTO CONSIDERATION THE FACT THAT THE LINEAR WAVE LENGTH AND REFLECTIVE SCANNING ATTACHMENTS WERE NO PART OF THE BASIC UNIT. THEREFORE, THE CORPORATION REQUESTS THAT THE RESPECTIVE ADDITIONAL COSTS OF $875 AND $150 FOR THESE COMPONENT PARTS BE ADDED TO THE BID OF $7,975 FOR ITEM NO. 1, MAKING A TOTAL CORRECTED BID FOR THAT ITEM OF $9,000. IT IS UNDERSTOOD THAT DELIVERY OF ITEM NO. 1 WAS MADE ON MARCH 28, 1961.

THE SOLE QUESTION HERE PRESENTED IS WHETHER THE BID OF THE WILL CORPORATION OF WEST VIRGINIA MAY BE HELD TO HAVE BEEN ACCEPTED IN GOOD FAITH UNDER THE CIRCUMSTANCES REPORTED. IN THIS REGARD, WHILE THE TELEGRAM FORWARDED BY THE WILL CORPORATION ON NOVEMBER 16, 1960, REQUESTING WITHDRAWAL OF ITS BID MAY HAVE BEEN SOME INDICATION THAT AN ERROR WAS MADE IN ITS BID, SUCH A COMMUNICATION, WITHOUT MORE, CANNOT BE ACCEPTED AS CONCLUSIVE NOTICE THAT AN ERROR WAS, IN FACT, ACTUALLY MADE IN THE BID RATHER THAN THE SUBMISSION OF A MERE IMPROVIDENT BID.

MOREOVER, THE RECORD SHOWS THAT SUBSEQUENT TO THE GOVERNMENT'S RECEIPT OF THE TELEGRAM AND FURTHER COMMUNICATIONS FROM THE WILL CORPORATION THE CONTRACTING OFFICER, BY LETTERS DATED NOVEMBER 22, 1960, AND DECEMBER 15, 1960, AND BY THE TELEGRAM DATED JANUARY 9, 1961, AFFORDED THE CORPORATION EVERY OPPORTUNITY TO ADVISE WHETHER ITS REQUEST FOR RELIEF WAS BASED ON AN ACTUAL ERROR AND, IF SO, TO FURNISH THE DETAILED EVIDENCE OF THE ERROR IN SUPPORT THEREOF. NOTWITHSTANDING THE EFFORTS OF THE CONTRACTING OFFICER IN THIS REGARD, THE WILL CORPORATION FAILED TO SPECIFICALLY ADVISE THAT THE REQUEST FOR WITHDRAWAL OF ITS BID OR THAT ITS SUBSEQUENT REQUEST FOR AMENDMENT OF ITS BID PRICE FOR ITEM NO. 1 WAS DUE TO AN ERROR IN ITS BID UNTIL AFTER THE BID ACTUALLY HAD BEEN ACCEPTED. UNDER THESE CIRCUMSTANCES AND SINCE THE PRICE BID WAS NOT SO GROSSLY OUT OF LINE WITH THE OTHER BIDS RECEIVED AS TO PLACE THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF ERROR IT IS OUR VIEW THAT THE CONTRACTING OFFICER'S ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VESTED IN THE GOVERNMENT UNDER SUCH CONTRACT.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR AUTHORIZING ANY INCREASE IN PRICE UNDER PURCHASE ORDER NO. FD1-404-2204.

THE PAPERS, WITH THE EXCEPTION OF THE FINDINGS AND RECOMMENDATION OF THE CONTRACTING OFFICER ..END :