B-76253, MAY 20, 1948, 27 COMP. GEN. 718

B-76253, MAY 20, 1948, 27 COMP. GEN. 718

BIDS - MISTAKES WHERE THE INVITATION TO BID WARNED BIDDERS THAT THE EQUIPMENT WAS TO BE FURNISHED IN STRICT ACCORDANCE WITH ATTACHED SPECIFICATIONS, THE ERROR OF THE SUCCESSFUL BIDDER IN UNDERESTIMATING ITS BID PRICE, ALLEGEDLY DUE TO THE FACT THAT SPECIFICATIONS WERE NOT ATTACHED TO THE INVITATION, MUST BE REGARDED AS UNILATERAL--- NOT MUTUAL--- DUE SOLELY TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT AND IN NOWISE CONTRIBUTED TO BY THE GOVERNMENT, AND AFFORDS NO BASIS FOR INCREASING THE PRICE SPECIFIED IN THE BID WHICH, HAVING BEEN ACCEPTED BY THE GOVERNMENT, CONSUMMATED A VALID AND BINDING CONTRACT.

ACTING COMPTROLLER GENERAL FISHER TO THE CHAIRMAN, NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, MAY 20, 1948:

I HAVE A LETTER DATED MAY 6, 1948, WITH ENCLOSURES, FROM YOUR COMMITTEE, RELATIVE TO AN ERROR ALLEGED BY THE CONTINENTAL EQUIPMENT COMPANY, TOMLINSON STEAM SPECIALTY COMPANY, TO HAVE BEEN MADE IN ITS BID DATED DECEMBER 1, 1947, WHICH WAS ACCEPTED BY THE GOVERNMENT DECEMBER 12, 1947, THEREBY BECOMING CONTRACT NO. NA3-494. YOU REQUEST A DECISION AS TO WHETHER THE CONTRACT PRICE MAY BE INCREASED BY THE AMOUNT OF $1,088, AS REQUESTED BY THE CONTRACTOR DUE TO THE ALLEGED ERROR IN ITS BID.

IT APPEARS THAT ON NOVEMBER 20, 1947, YOUR COMMITTEE'S LABORATORY AT CLEVELAND, OHIO, ADVERTISED FOR BIDS, TO BE OPENED DECEMBER 2, 1947, FOR FURNISHING BUTTERFLY VALVES, LEVER OPERATED, HEAVY DUTY, SUITABLE FOR THROTTLING GASES AT 50 POUNDS PER SQUARE INCH PRESSURE DIFFERENTIAL AND 1200 DEGREES FAHRENHEIT, IN STRICT ACCORDANCE WITH SPECIFICATION NO. C-569 DATED NOVEMBER 12, 1947, QUANTITIES AND TYPES AS LISTED ON INVITATION C- 569. AS THE BID OF THE CONTINENTAL EQUIPMENT COMPANY, TOMLINSON STEAM SPECIALTY COMPANY, WAS THE ONLY BID RECEIVED UNDER THE INVITATION INVOLVED, AWARD WAS MADE TO THAT COMPANY.

ON JANUARY 29, 1948, IN AN EFFORT TO EXPEDITE DELIVERY OF THE VALVES INVOLVED, THE FIELD PROCUREMENT OFFICER WROTE TO THE JANETTE MANUFACTURING COMPANY, THE CONTRACTOR'S SUPPLIER OF THE SPEED REDUCER UNIT UNDER ITEM NO. 4 OF THE CONTRACT, CALLING ATTENTION TO THAT PORTION OF THE SPECIFICATION WHICH REQUIRED THAT EACH VALVE OPERATING MOTOR BE SUPPLIED WITH EXPLOSION-PROOF REVERSING COMBINATION STARTER AND FUSED DISCONNECT SWITCH AND REQUESTING INFORMATION AS TO WHAT GAIN IN DELIVERY TIME WOULD RESULT FROM THE SUBSTITUTION OF A CERTAIN SWITCH IN LIEU THEREOF. FEBRUARY 26, 1948, THE CONTRACTOR WROTE TO THE FIELD PROCUREMENT OFFICER THAT THE SAID LETTER OF JANUARY 29, 1948, HAD BROUGHT TO ITS ATTENTION AN ERROR IN ITS BID, AND ALLEGED THAT AT THE TIME ITS BID WAS PREPARED NEITHER IT NOR THE SUPPLIER HAD A COPY OF THE ATTACHED SPECIFICATION NO. C -569, REFERRED TO IN THE INVITATION TO BID, AND REQUESTED AN INCREASE OF $1,088 IN THE CONTRACT PRICE.

FURTHER, IT IS STATED THAT WITH RESPECT TO THE CONTRACTOR'S CONTENTION, IT IS THE OPINION OF THE TECHNICAL STAFF OF THE COMMITTEE'S LABORATORY THAT WHILE THE INFORMATION GIVEN ON SHEETS 1 AND 2 OF INVITATION C-569 WAS SUFFICIENTLY COMPLETE TO ENABLE A CONTRACTOR TO SUBMIT A QUOTATION WITHOUT REFERENCE TO THE SPECIFICATION SHEET, IN DOING SO THE BIDDER WOULD BE TAKING A CONSIDERABLE RISK IN VIEW OF THE REQUIRED ELECTRICAL CHARACTERISTICS OF THE MOTOR AND ANY EXTRA FEATURES OUTLINED IN THE DETAILED SPECIFICATION SHEET. ALSO, IT IS STATED THAT WHILE IT IS POSSIBLE THAT, THROUGH ERROR, NO COPY OF THE SPECIFICATION NO. C-569 WAS FORWARDED THE CONTRACTOR AT THE TIME OF MAILING THE INVITATIONS TO BID, THERE IS NO RECORD MAINTAINED WHICH WOULD CLEARLY ESTABLISH THAT TO BE WHAT ACTUALLY HAPPENED IN THIS INSTANCE.

THERE CAN BE NO DOUBT THAT THE INVITATION TO BID WARNED THE BIDDERS THAT THE VALVES WERE TO BE FURNISHED IN STRICT ACCORDANCE WITH THE ATTACHED SPECIFICATION NO. C-569 AND IT IS OF LITTLE CONSEQUENCE WHETHER THE SPECIFICATIONS WERE ATTACHED TO THE INVITATION TO BID. IT IS CLEAR THAT ANY ERROR MADE BY THE COMPANY IN ITS BID WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. THUS THE ERROR WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.1CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.1SUPP. 505, 507.

THE ACCEPTANCE OF THE BID OF THE CONTINENTAL EQUIPMENT COMPANY, TOMILSON STEAM SPECIALTY COMPANY, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75; 20 COMP. GEN. 652; AND 26 COMP. GEN. 415. THE RIGHT, WHICH VESTED IN THE GOVERNMENT UPON SUCH ACCEPTANCE, TO HAVE PERFORMANCE IN STRICT ACCORD WITH THE TERMS OF THE ACCEPTED BID FOR THE CONSIDERATION NAMED THEREIN, CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.1CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.1CLS., 584, 607, CERTIORARI DENIED 292 U.S. 645.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR INCREASING THE PRICE FOR THE VALVES AS REQUESTED BY THE CONTRACTOR.