B-155654, MAR. 23, 1965

B-155654, MAR. 23, 1965

TO AVON ELECTRICAL SUPPLIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1964, CONCERNING A MISTAKE ALLEGED TO HAVE BEEN MADE BY YOUR COMPANY IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. SFM-17537-64 ISSUED BY THE GENERAL SERVICES ADMINISTRATION, SAN FRANCISCO, CALIFORNIA, ON MARCH 11, 1964.

THE RECORD SHOWS THAT THE INVITATION REQUESTED BIDS TO BE OPENED ON APRIL 1, 1964, FOR AN INDEFINITE QUANTITY OF ELECTRICAL WIRE AND CABLE ITEMS. PAGE 7 OF THE INVITATION FOR BIDS,"METHOD OF AWARD," PROVIDED AS FOLLOWS:

"AWARD WILL BE MADE IN THE AGGREGATE FOR EACH GROUP OF ITEMS SHOWN BELOW. THE LOW AGGREGATE BIDDER IS DETERMINED BY MULTIPLYING THE UNIT PRICE BY THE ESTIMATED QUANTITY SHOWN FOR EACH ITEM AND ADDING THE RESULTING EXTENSIONS, PRICES MUST BE QUOTED ON EACH ITEM WITHIN A GROUP TO BE CONSIDERED FOR SUCH GROUPS.

TABLE

GROUP 1 ITEMS 1 THRU 9

GROUP 2 ITEMS 10 THRU 21

GROUP 3 ITEMS 22 THRU 30

GROUP 4 ITEMS 31 THRU 33

GROUP 5 ITEMS 34 THRU 39

GROUP 6 ITEMS 40 THRU 90

GROUP 7 ITEMS 91 THRU 147

GROUP 8 ITEMS 148 THRU 168"

OF THE SEVEN BIDS SUBMITTED FOR GROUP 3 YOUR COMPANY WAS THE AGGREGATE LOW RESPONSIVE BIDDER AND YOU WERE AWARDED A CONTRACT ON AN AGGREGATE BASIS FOR ITEMS 22 THROUGH 30 ON MAY 4, 1964. THE SEVEN BIDS WHICH WERE OPENED ON APRIL 1, 1964, WERE AS FOLLOWS:

CHART

BIDDER AGGREGATE PRICE

------- --------------- AVON ELECTRICAL SUPPLIES, INC.

$20,168.90 COMMERCIAL WHOLESALE ELECTRIC 22,305.90 MIDWAY ELECTRIC SUPPLY CO., INC. 22,631.50 PHILLIPS-SUMMERS ELECTRIC SUPPLY 22,743.00 GENERAL ELECTRIC SUPPLY CO. 22,871.30 CALIFORNIA ELECTRIC SUPPLY

24,559.50 NATIONAL ELECTRIC SUPPLY 24,984.60

BY LETTER OF MAY 25, 1964, YOU ADVISED THE CONTRACTING OFFICER OF THE DISCOVERY OF AN ERROR IN YOUR BID AND REQUESTED CANCELLATION OF THOSE ITEMS IN ERROR OR--- IN THE ALTERNATIVE--- GROUP 3 FROM THE CONTRACT. YOU ALLEGE THAT THE PRICE FOR ITEMS 22, 23 AND 24 SHOULD HAVE BEEN $16.34 FOR EACH ITEM INSTEAD OF $12.23.

ASSUMING THERE WAS A SUBSTANTIAL DIFFERENCE BETWEEN YOUR BID AND THE OTHER BIDS ON THE ITEMS IN QUESTION, THAT FACTOR IS NOT CONTROLLING UNDER THE CIRCUMSTANCES OF THIS CASE. AS PREVIOUSLY POINTED OUT, THE INVITATION FOR BIDS ASKED FOR PRICES FOR EACH ITEM AND ALSO FOR AN AGGREGATE PRICE FOR THE LOT AS ONE ITEM. WHILE EXCEPTIONS HAVE BEEN MADE IN CERTAIN CIRCUMSTANCES NOT HERE PRESENT, IT IS THE GENERAL RULE OF OUR OFFICE AND THE COURTS, THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. SEE 17 COMP. GEN. 534; 42 ID. 383; B-150334 DATED FEBRUARY 11, 1963; AND ALLIED CONTRACTORS, INC. V. UNITED STATES, 159 CT.CL. 548. THE CONTRACTING OFFICER HAS STATED THAT SHE WAS NOT ON CONSTRUCTIVE NOTICE OF A MISTAKE IN BID PRIOR TO AWARD FOR THE NINE ITEMS AND THE DIFFERENCE BETWEEN YOUR LOW BID OF $20,168.90 AND THE NEXT LOW OF $22,305.90 WAS ONLY $2,137 OR 10.5 PERCENT. IN OUR VIEW THIS DISCREPANCY BETWEEN YOUR OVERALL BID AND THE BIDS OF OTHER BIDDERS WAS NOT SUFFICIENTLY GREAT TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE CLAIMED MISTAKE. ALLIED CONTRACTORS, INC. V. UNITED STATES, SUPRA.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID IS THAT OF THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF, AS APPEARS FROM THE RECORD IN THIS CASE, YOU INADVERTENTLY USED THE WRONG FIGURE FOR YOUR BID PRICE, SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, THERE IS NO BASIS FOR RELIEVING YOU FROM YOUR OBLIGATION UNDER THE CONTRACT. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT.CL. 249, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

WHILE IT MAY BE THAT YOU MADE AN ERROR IN YOUR BID, THE QUESTION FOR CONSIDERATION IS NOT WHETHER YOU MADE AN ERROR BUT WHETHER THE ACCEPTANCE OF YOUR BID BY THE GOVERNMENT CONSUMMATED A VALID AND BINDING CONTRACT. ACCEPTANCE OF A BID CONSUMMATES A VALID AND BINDING CONTRACT UNLESS THE OFFICER ACCEPTING THE BID WAS ON NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF AN ERROR THEREIN. MOFFETT, HODGKINS AND CLARKE COMPANY V. ROCHESTER, 178 U.S. 373. IT IS CLEAR IN THIS CASE THAT THE CONTRACTING OFFICER HAD NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE OF ANY MISTAKE MADE BY YOU PRIOR TO AWARD.

ACCORDINGLY, WE CAN FIND NO LEGAL BASIS TO EXCUSE YOU FROM THE CONTRACT AS EXECUTED ON MAY 4, 1964.