B-156371, MAR. 31, 1965

B-156371, MAR. 31, 1965

TO THE HONORABLE THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED MARCH 19, 1965, AND ENCLOSURES, FROM THE ACTING ADMINISTRATOR, AGRICULTURAL RESEARCH SERVICE, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE REQUEST OF THE SATTERLEE COMPANY FOR A $338 INCREASE IN THE AMOUNT PROVIDED FOR IN THE CONTRACT AWARDED PURSUANT TO INVITATION FOR BIDS NO. 68-N-ARS-65, ON THE GROUND OF A MISTAKE IN BID ALLEGED AFTER AWARD.

THE INVITATION CALLED FOR BIDS ON FURNISHING A RAM AND TURRET MILLING MACHINE, AS SPECIFIED, DELIVERED F.O.B. TO THE NATIONAL ANIMAL DISEASE LABORATORY, AMES, IOWA. AMONG OTHER THINGS, THE SPECIFICATIONS REQUIRED THAT THE MACHINE FURNISHED BE EQUIPPED WITH A "LONGITUDINAL POWER FEED.' THE LOW BID IN THE AMOUNT OF $2,286.75 WAS SUBMITTED BY SATTERLEE, AND AWARD OF A CONTRACT WAS MADE ON FEBRUARY 16, 1965.

BY A TELEPHONE CALL ON MARCH 4, 1965, AND A CONFIRMING LETTER OF THE SAME DATE, SATTERLEE ADVISED THAT A MISTAKE HAD BEEN MADE IN THE AMOUNT OF ITS BID. THE FOLLOWING EXCERPT FROM THE ABOVE LETTER EXPLAINS THE OCCURRENCE OF THE ALLEGED MISTAKE:

"IN ACCORDANCE WITH OUR CONVERSATION OF MARCH 4, I AM ENCLOSING A STANDARD BRIDGEPORT PRICE SHEET WHICH WE USE IN PREPARING ALL QUOTATIONS. I HAVE CHECKED IN RED ON THE PRICE SHEET ALL ITEMS THAT WERE USED IN QUOTING THE MACHINE AND ACCESSORIES. YOU WILL NOTE THAT THE BASIC MACHINE PRICE OF $1,735.00 CONSISTS OF $1,575.00 FOR THE BASE MACHINE, $75.00 FOR 12 INCH CROSS TRAVEL, AND $85.00 FOR 42 INCH TABLE. WHAT WAS OMITTED WAS THE POWER FEED PRICE. ALTHOUGH POWER FEED IS SPECIFICALLY STATED IN THE INVITATION, IT WAS OVER LOOKED IN QUOTING. WE ALSO NEGLECTED TO INCLUDE THE FREIGHT COST OF $63.00 TO THE FINAL DESTINATION. THIS WE HAD FIGURED OUT BEFORE HAND BUT SIMPLY NEGLECTED TO INCLUDE.

"THE ABOVE PRICES WHEN ADDED TO THE BASE MACHINE PRICE OF $1,735.00 BRING THE TOTAL FOR THE BASE UP TO $2,073.00, AND THE OVERALL TOTAL OF MACHINE AND ACCESSORIES TO $2,624.75.'

WHILE IT APPEARS THAT A BONA FIDE MISTAKE MAY HAVE BEEN MADE IN THE BID AS ALLEGED, IT IS CLEAR THAT SUCH MISTAKE WAS DUE SOLELY TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT. ACCEPTANCE OF THE OFFER BY THE GOVERNMENT WITHOUT NOTICE, EITHER ACTUAL OF CONSTRUCTIVE, OF THE MISTAKE CONSUMMATED A VALID AND BINDING CONTRACT. NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO WAIVE OR SURRENDER, WITHOUT ADEQUATE CONSIDERATION, ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER SUCH A CONTRACT. UNITED STATES V. AMERICAN SALES CORP., 27 F.2D 389, AFF. 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574. SINCE THE MISTAKE WAS UNILATERAL, AND NOTHING APPEARS EITHER ON THE FACE OF THE BID OR OTHERWISE WHICH WOULD CHARGE THE GOVERNMENT WITH NOTICE THEREOF, REFORMATION OF THE CONTRACT TO CORRECT THE MISTAKE MAY NOT PROPERLY BE PERMITTED. THE CONTRACTOR MUST THEREFORE BEAR THE FULL RESPONSIBILITY FOR THE CONSEQUENCES OF ITS NEGLIGENTLY PREPARED BID. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES. 100 CT.CL. 120.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY ADDITIONAL AMOUNT TO THE CONTRACTOR UNDER THE SUBJECT CONTRACT.