B-163615, JUN. 20, 1968

B-163615, JUN. 20, 1968

TO MOBILE PRODUCTS DIVISION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 16, 1968, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR ADDITIONAL COMPENSATION BASED ON AN ERROR IN PRICE STATED IN PURCHASE ORDER NO. DSA-400-67-M-D356, ISSUED BY THE DEFENSE SUPPLY AGENCY (DSA), DEFENSE GENERAL SUPPLY CENTER (DGSC), RICHMOND, VIRGINIA.

ON SEPTEMBER 23, 1966, DGSC MADE TELEPHONE SOLICITATIONS FOR 992 BOXES OF ASBESTOS WICKS, FSN 9390-356-4949, FOR DELIVERY WITHIN 210 DAYS. YOUR FIRM SUBMITTED THE ONLY OFFER IN RESPONSE TO THE SOLICITATION, AND THE ORDER WAS PLACED ON OCTOBER 11, 1966, FOR DELIVERY TO FOUR DESTINATIONS ON OR BEFORE MAY 11, 1967. THE ORDER COVERED 992 BOXES OF WICKS AT A UNIT PRICE OF ?81 CENTS PER BOX OF 10 WICKS FOR A TOTAL PRICE OF $803.52. BETWEEN FEBRUARY 28 AND MARCH 3, 1967, 992 WICKS, PACKED ONE TO A BOX, OR ONE-TENTH OF THE QUANTITY ORDERED, WERE DELIVERED. PAYMENT OF INVOICES FOR THE ENTIRE QUANTITY COVERED BY THE PURCHASE ORDER WAS MADE TO YOU ON MARCH 13, 1967, IN THE TOTAL AMOUNT OF $803.52. THE DISCREPANCY BETWEEN THE QUANTITIES SPECIFIED AND THOSE DELIVERED WAS DISCOVERED IN MARCH 1967 AFTER PAYMENT WAS MADE TO YOUR FIRM. BY LETTER OF MARCH 31, 1967, YOU WERE REQUESTED TO SHIP THE ADDITIONAL WICKS COVERED BY THE PURCHASE ORDER. THE ORIGINAL SHIPMENTS WERE RETURNED TO YOU FOR REPACKAGING 10 TO A BOX, AND YOUR FIRM REPLACED THESE SHIPMENTS BY FURNISHING THE PURCHASE ORDER QUANTITIES PACKED 10 WICKS TO A BOX. YOUR FIRM COMPLETED THE LAST REPLACEMENT SHIPMENT ON JULY 6, 1967.

BY TELEPHONE CALL OF AUGUST 8, AND BY LETTER OF AUGUST 9, 1967, YOU NOTIFIED THE CONTRACTING OFFICER THAT THE CORRECT PRICE WAS ?81 CENTS PER WICK, NOT PER BOX OF 10, AND REQUESTED PAYMENT OF AN ADDITIONAL $7,231.68. BY LETTER OF OCTOBER 10, 1967, THE CONTRACTING OFFICER DENIED YOUR CLAIM ON THE BASIS THAT THE CONTRACTING OFFICER HAD NO CONSTRUCTIVE NOTICE OF THE ERROR AND THAT YOU WAIVED ANY CLAIM FOR RELIEF BECAUSE YOU FAILED TO CALL ATTENTION TO THE PRICE ERROR OR OBJECT TO THE STATED PRICE WHEN NOTIFIED OF THE SHIPMENT ERROR. YOUR CLAIM FOR RELIEF WAS RECONSIDERED AND WAS AGAIN DENIED BY LETTER OF DECEMBER 26, 1967. FEBRUARY 16, 1968, YOU PROTESTED THE CONTRACTING OFFICER'S DENIAL OF YOUR CLAIM OF ERROR TO OUR OFFICE.

YOU CONTEND THAT THE CONTRACTING OFFICER KNEW OR SHOULD HAVE KNOWN THAT THE UNIT PRICE OF ?81 WAS PER WICK AND NOT PER BOX OF TEN BECAUSE OF A SIMILAR TELEPHONIC SOLICITATION FOR THE SAME WICKS AT $7.60 PER BOX OF 10. THIS CONTENTION WAS, IN OUR OPINION, SATISFACTORILY ANSWERED IN THE CONTRACTING OFFICER'S LETTER TO YOU OF DECEMBER 26, 1967, AND NEED NOT BE CONSIDERED AGAIN.

WE HAVE BEEN ADVISED THAT A PURCHASE OF THIS QUANTITY OF WICKS HAS NEVER BEEN MADE BY DSA PRIOR TO THE ISSUANCE OF THE SUBJECT PURCHASE ORDER. ARE FURTHER ADVISED THAT THE ITEM IS OFFERED TO USERS BY THE DGSC MANAGEMENT DATA LIST AT $1 PER BOX OF 10. THIS INFORMATION WAS ALL THE DATA AVAILABLE TO THE CONTRACTING OFFICER WHEN THE ORDER WAS PLACED WITH YOUR FIRM AND WHEN REPLACEMENT SHIPMENT WAS REQUIRED.

FROM THE RECORD BEFORE US, WE FIND NO LEGAL BASIS TO INCREASE THE PURCHASE ORDER PRICE BECAUSE OF AN ALLEGED UNILATERAL ERROR WHICH WAS BROUGHT TO THE ATTENTION OF DSA AFTER YOU ACCEPTED THE PURCHASE ORDER.

AS ALREADY INDICATED, YOUR FIRM RAISED NO ALLEGATION OF ERROR UNTIL AFTER THE PURCHASE ORDER WAS COMPLETED AND PAYMENT OF THE CONTRACT PRICE. HAVE HELD THAT A CONTRACTOR WHO PROCEEDS WITH PERFORMANCE AFTER HE HAS OBTAINED KNOWLEDGE OF HIS ERROR WITHOUT MAKING A TIMELY CLAIM FOR ADJUSTMENT WILL BE HELD TO HAVE AFFIRMED THE TERMS OF HIS AGREEMENT. SEE 36 COMP. GEN. 191; 38 ID. 218; 39 ID. 27. SINCE THE ERROR AS ALLEGED WAS UNILATERAL -- NOT MUTUAL -- AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT, THERE IS NO AUTHORITY TO EXTEND THE RELIEF REQUESTED. SEE BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V O.D. WILSON CO., INC., 133 F.2D 399, 400.