B-152953, DEC. 13, 1963

B-152953, DEC. 13, 1963

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 21, 1963, WITH ENCLOSURES, FROM THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY MELETIO SEA FOOD COMPANY, INC., TO HAVE BEEN MADE IN ITS BID ON WHICH PURCHASE ORDER NO. 64 -HI-40005 IS BASED.

THE VETERANS ADMINISTRATION SUPPLY DEPOT, HINES, ILLINOIS, BY INVITATION NO. M4-44-64 REQUESTED BIDS FOR FURNISHING FROZEN FISH AND SCALLOPS TO BE DELIVERED TO THE VARIOUS DESTINATIONS LISTED UNDER ITEMS 1 TO 19, INCLUSIVE. IN RESPONSE MELETIO SEA FOOD COMPANY, INC., SUBMITTED A BID DATED JUNE 10, 1963, WHEREIN IT OFFERED TO DELIVER 10,000 POUNDS OF FROZEN HALIBUT STEAKS TO A STORAGE WAREHOUSE AT CHICAGO, ILLINOIS, AT A UNIT PRICE OF $0.36 PER POUND. THE BID OF THE CORPORATION WAS ACCEPTED AS TO ITEM 10 AND OTHER ITEMS ON JULY 5, 1963, AND ON THE SAME DATE A PURCHASE ORDER WAS ISSUED REQUESTING DELIVERY OF THE FISH.

IT IS REPORTED THAT ON JULY 6, 1963, A REPRESENTATIVE OF THE MELETIO SEA FOOD COMPANY, INC., TELEPHONED THE CONTRACTING OFFICER AND ALLEGED THAT THE CORPORATION HAD MADE AN ERROR IN QUOTING ON ITEM 10 OF ITS BID AND THAT THE REPRESENTATIVE WAS ADVISED THAT THE CORPORATION SHOULD PERFORM UNDER THE CONTRACT AND SUBMIT A WRITTEN STATEMENT EXPLAINING THE ERROR IN ITS BID AND ANY EVIDENCE IN SUPPORT THEREOF.

IT IS REPORTED THAT AFTER DELIVERY OF THE HALIBUT STEAKS THE CORPORATION BY LETTER DATED AUGUST 26, 1963, REQUESTED THAT THE PRICE OF FISH BE INCREASED FROM $0.36 TO $0.46 PER POUND. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED ITS SUPPLIER'S INVOICES WHICH INDICATE THAT THE CORPORATION WAS BILLED FOR THE HALIBUT STEAKS AT PRICES OF $0.40 AND $0.42 PER POUND. THE CORPORATION ALSO SUBMITTED A COPY OF A FREIGHT BILL IN THE AMOUNT OF $137.50.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE ABSTRACT OF BIDS SHOWS THAT THE THREE OTHER BIDS ON ITEM 10 WERE IN THE AMOUNTS OF $0.46, $0.5099 AND $0.59. IT IS REPORTED THAT THE MELETIO SEA FOOD COMPANY, INC., OFFERED A FOREIGN PRODUCT AT $0.36 PER POUND AND THAT WITH THE 6 PERCENT DIFFERENTIAL APPLIED, THE CORPORATION'S UNIT BID PRICE FOR BID EVALUATION PURPOSES WOULD BE $0.3816 PER POUND AND THAT THE NEXT LOWEST BIDDER WHO OFFERED A DOMESTIC PRODUCT QUOTED A PRICE OF $0.46 PER POUND. THE CONTRACTING OFFICER REPORTS THAT HE WAS NOT ON NOTICE OF ERROR PRIOR TO ACCEPTANCE OF BID SINCE THE PRICE DIFFERENTIAL EXISTING ON ITEM 10 WAS ALSO PREVALENT THROUGHOUT THE BID OF THE CORPORATION ON OTHER ITEMS. AT THE TIME OF ACCEPTANCE THE CONTRACTING OFFICER HAD RECEIVED NO NOTICE OR CLAIM OF ERROR, AND WE AGREE WITH THE ADMINISTRATIVE VIEW THAT THE DIFFERENCE BETWEEN THE CORPORATION'S BID AND THE OTHERS RECEIVED ON ITEM 10 IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT HE SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN THE BID. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS INGOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE CORPORATION UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505.

MOREOVER, 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 CORPORATION IS NOT ENTITLED TO RELIEF. SEE 20 COMP. GEN. 652 AND 26 ID. 415.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN PURCHASE ORDER NO. 64-HI 40005 FOR ITEM 10, AS REQUESTED BY THE MELETIO SEA FOOD COMPANY, INC. ..END :