B-157376, AUG. 19, 1965

B-157376, AUG. 19, 1965

TO THE SECRETARY OF AGRICULTURE:

BY LETTER DATED JULY 30, 1965, THE ASSISTANT SECRETARY FOR ADMINISTRATION HAS REQUESTED OUR DECISION WHETHER RELIEF MAY BE GRANTED TO DOHRMANN INSTRUMENTS COMPANY FOR AN ALLEGED MISTAKE IN BID BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER AFTER THE ACCEPTANCE OF DOHRMANN'S BID UNDER INVITATION FOR BIDS NO. ARS-388-B-65, DATED MAY 27, 1965.

THE IFB, WHICH WAS SENT TO TEN PROSPECTIVE BIDDERS, REQUESTED BIDS TO FURNISH ONE MICROCOULOMETRIC TITRATING SYSTEM, TO BE DELIVERED TO THE AGRICULTURAL RESEARCH CENTER, BELTSVILLE, MARYLAND. THE BASIC ITEM DESCRIPTION ON PAGE 1 OF THE IFB READS, IN PART, AS FOLLOWS:

"TITRATING SYSTEM, MICROCOULOMETRIC, CONSISTING OF TITRATOR, TITRATION CELL FOR HALOGENS, AND SAMPLE INLET/COMBUSTION UNIT, COMPLETE WITH SPECIFIED ACCESSORIES, ALL IN ACCORDANCE WITH ATTACHED SPECIAL REQUIREMENTS. SERVICE REQUIREMENTS AND SPECIFICATIONS, DELIVERED F.O.B. BELTSVILLE, MARYLAND, ALL FOR THE LUMP SUM OF---"

THE SPECIFICATIONS PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"A MICROCOULOMETRIC TITRATING SYSTEM, COMPLETE WITH SPECIFIED ACCESSORIES, AND READY FOR OPERATION ON 120 VOLT 60 CYCLES AC, IS REQUIRED. THE BASIC SYSTEM SHALL CONSIST OF A TITRATOR, A TITRATION CELL SENSITIVE TO COMBUSTION PRODUCTS OF HALOGEN-CONTAINING COMPOUNDS (EXCEPT FLOURINE), AND A SAMPLE INLET/COMBUSTION UNIT. THE TITRATING SYSTEM AND ACCESSORIES SHALL BE IN ACCORDANCE WITH THE FOLLOWING MINIMUM SPECIFICATIONS.

"3. ACCESSORIES: THE FOLLOWING ACCESSORIES SHALL BE FURNISHED WITH THE TITRATING SYSTEM, SHALL BE COMPATIBLE WITH SAME, AND THE COST INCLUDED IN THE LUMP SUM BID PRICE:

"/A) TITRATION CELL, SENSITIVE TO COMBUSTION PRODUCTS OF SULFUR CONTAINING COMPOUNDS.'

THE ONLY BID RECEIVED WAS DOHRMANN'S BID QUOTING A LUMP-SUM PRICE OF $6,030. SINCE THE BID WAS RESPONSIVE, AWARD WAS MADE TO DOHRMANN ON JUNE 14 AT ITS BID PRICE.

ON JUNE 17, DOHRMANN'S REPRESENTATIVE TELEPHONED THE PROCURING ACTIVITY AND ADVISED THAT IT HAD MADE AN ERROR IN ITS BID, IN THAT IT HAD FAILED TO INCLUDE THE PRICE OF ONE TITRATION CELL. IN A LETTER DATED JUNE 25, DOHRMANN EXPLAINED ITS ERROR AS FOLLOWS:

"THE EQUIPMENT DESCRIBED IN ITEM ONE ON PAGE 4 WAS WRITTEN AROUND OUR OLD SPECIFICATIONS WHICH INCLUDED A TITRATION CELL. WE MISTAKENLY ASSUMED THAT THIS PARAGRAPH WAS WRITTEN AS OUR NEW SPECIFICATION WHICH DOES NOT INCLUDE A TITRATION CELL. OUR PRINTED PRICE LIST, A COPY OF WHICH IS ENCLOSED, SHOWS THAT THE PRICE OF THE COULOMETER IS $2,065 AND THE CELL IS AN EXTRA $490. ALL OF THE ITEMS ON YOUR BID WITH THE EXCEPTION FO THE RECORDER CONTROL (ITEM 3D) ARE LISTED ON OUR PUBLISHED PRICE LIST. QUICK ADDITION OF THE CHECKED ITEMS ON THAT LIST WILL SHOW THAT IT IS IN EXCESS OF OUR BID PRICE BY THE COST OF THE TITRATION CELL.'

THE MARCH 1965 PRICE LIST FURNISHED BY DOHRMANN SHOWS THAT THE PRICE OF ITS BASIC MODEL C-200 MICROCOULOMETER (THE DESCRIPTION OF WHICH CONTAINS NO REFERENCE TO ANY TITRATION CELL) IS $2,065, AND THAT THE TITRATION CELLS, FOR EITHER HALOGEN OR SULFUR COMPOUNDS, ARE PRICED AT $490 EACH. DOHRMANN'S WORKSHEET SHOWS THAT ITS BID INCLUDED THE BASE PRICE OF $2,065 FOR THE INSTRUMENT AND A PRICE OF $490 FOR A SINGLE TITRATION CELL, FOR SULFUR TITRATION, WITH NO MENTION OF OR PRICE FOR A TITRATION CELL FOR HALOGENS.

THE EXPLANATION OFFERED BY THE ASSISTANT SECRETARY FOR THE INCLUSION OF THE HAOLGEN TITRATION CELL AS A PART OF THE DESCRIPTION OF THE BASIC INSTRUMENT IN THE IFB IS THAT THE OPERATION OF THE SYSTEM REQUIRED AT LEAST ONE CELL IN ANY CIRCUMSTANCES, AND, THEREFORE, THE HALOGEN CELL WAS SPECIFIED AS PART OF THE BASIC SYSTEM RATHER THAN AS AN ADDITIONAL ACCESSORY.

PENDING OUR DECISION IN THE MATTER, DOHRMANN HAS BEEN REQUESTED TO DELIVER THE SPECIFIED EQUIPMENT.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID RESTS UPON THE BIDDER. 31 COMP. GEN. 323; FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 123. WHEN A BIDDER HAS MADE A MISTAKE IN HIS BID AND THE BID HAS BEEN ACCEPTED BY THE GOVERNMENT, THE BIDDER MUST BEAR THE CONSEQUENCES UNLESS HIS MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE OF IT. 23 COMP. GEN. 596 AND COURT CASES CITED THEREIN.

WHILE THE BASIC ITEM DESCRIPTION USED IN THE IFB MAY NOT CONFORM TO THE DESCRIPTION APPEARING IN THE CONTRACTOR'S CURRENT SALES MATERIAL, NEVERTHELESS THE IFB CLEARLY STATES, BOTH UNDER ITEM 1 AND IN THE FIRST UNNUMBERED PARAGRAPH OF THE SPECIFICATIONS, THAT THE BASIC SYSTEM SHALL INCLUDE THE HALOGEN TITRATION CELL, AND PARAGRAPH 3 (A) OF THE SPECIFICATIONS LISTS A SULFUR TITRATION CELL AS ONE OF THE ACCESSORIES ALSO TO BE INCLUDED IN THE LUMP-SUM BID PRICE. THEREFORE, THE IFB, READ AS A WHOLE, CLEARLY REQUIRES TWO TITRATION CELLS, ONE FOR HALOGEN AND ONE FOR SULFUR, THE COST OF BOTH CELLS TO BE INCLUDED IN THE LUMP SUM BID PRICE FOR THE SYSTEM.

WHILE THE PRICE LIST AND WORKSHEET FURNISHED BY KOHRMANN EVIDENCE THAT A BONA FIDE ERROR IN BID WAS MADE AS ALLEGED BY KOHRMANN, THERE IS NO SHOWING THAT THE CONTRACTING OFFICER HAD ANY KNOWLEDGE, PRIOR TO AWARD, OF THE FACTORS USED BY KOHRMANN IN COMPUTING ITS BID NOR WAS THERE ANY AMBIGUITY OR LACK OF CLARITY IN THE IFB WHICH COULD HAVE CONTRIBUTED TO THE ERROR. FURTHERMORE, THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE PRICE WAS NOT AS INTENDED; IN THE ABSENCE OF ANY OTHER BID THERE WAS NO BASIS FOR BID COMPARISON; AND NONE OF THE OTHER FIRMS TO WHICH THE IFB WAS SENT QUESTIONED THE SPECIFICATIONS. THEREFORE, THE CONTRACTING OFFICER MAY NOT BE CHARGED WITH NOTICE OF THE PROBABILITY OF AN ERROR, AND HIS ACCEPTANCE OF THE BID IN GOOD FAITH RESULTED IN A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. 26 COMP. GEN. 415.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR THE PAYMENT OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE.