B-98236, JAN 16, 1951

B-98236, JAN 16, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

I HAVE YOUR LETTER OF DECEMBER 21, 1950, WITH ENCLOSURES, RELATIVE TO AN ERROR ALLEGED BY THE CIRCLE EQUIPMENT COMPANY, INC., TO HAVE BEEN MADE IN QUOTING ON ITEM 5 OF ITS BID DATED JUNE 8, 1950, ON WHICH UNNUMBERED CONTRACT DATED JUNE 22, 1950, IS BASED. YOU REQUEST A DECISION AS TO THE ACTION TO BE TAKEN IN THE MATTER.

THE PURCHASING AND CONTRACTING OFFICE, WESTOVER AIR FORCE BASE, MASSACHUSETTS, BY INVITATION NO. (IFB)19-032-50-59, REQUESTED BIDS - TO BE OPENED JUNE 9, 1950 - FOR FURNISHING F.O.B. DESTINATION, AMONG OTHERS, THE FOLLOWING DESCRIBED ARTICLE:

ITEM NO. SUPPLIES OR SERVICES QUANTITY UNIT

5 URN, COFFEE, WITH STAND (TWIN INCLOSED)

(PRESSURE SYPHON TYPE) ALL STAINLESS

STEEL WITH INSIDE URNS ALSO STAINLESS

STEEL, CAP. 6 GAL. EACH URN WITH 15

GAL. OR BETTER WATER JACKET CAP. BLICKMAN'S

SEALWELD MODEL SWSTS-106-S

OR EQUAL WITH BURNER FOR MANUFACTURED

GAS, WITH TWO LEACHERS STAINLESS STEEL. THE

STAND, URN, OPEN BASE TYPE, MODEL

LL-12 ALL STAINLESS STEEL, MINIMUM

DIMENSIONS 48" X 23" 6 EA.

IN RESPONSE TO THE INVITATION, THE CIRCLE EQUIPMENT COMPANY, INC., SUBMITTED A BID WHEREIN IT OFFERED TO FURNISH, AMONG OTHER ITEMS, THE COFFEE URNS COMPLETE WITH STANDS CALLED FOR UNDER ITEM 5 AT A PRICE OF $489.40 EACH. THE BID OF THE CORPORATION WAS ACCEPTED AS TO ITEMS 1, 5 AND 9, IN THE TOTAL AMOUNT OF $3,234.80, ON JUNE 22, 1950, AND PURCHASE ORDER NO. (19-032)50-4165, WAS ISSUED REQUESTING DELIVERY OF THE EQUIPMENT.

UPON RECEIPT OF SAID PURCHASE ORDER, THE CIRCLE EQUIPMENT COMPANY, INC., ADVISED BY LETTER OF JULY 6, 1950, THAT AN ERROR HAD BEEN MADE ON ITEM 5, IN THAT ITS BID PRICE COVERED THE COFFEE URNS ONLY AND, THEREFORE, THE CORPORATION REQUESTED THAT ITEM 5 OF SAID ORDER BE CANCELLED. IN REPLY THERETO, THE CONTRACTING OFFICER ADVISED THE CORPORATION BY LETTER DATED JULY 10, 1950, THAT SINCE AWARD HAD ALREADY BEEN MADE, THE MATTER WOULD HAVE TO BE REFERRED TO THE GENERAL ACCOUNTING OFFICE FOR A DECISION AND REQUESTED THAT THE CORPORATION FURNISH ITS WORK SHEETS AND THAT IT SUBMIT THE PRICE AT WHICH IT WOULD NOW FURNISH COFFEE URNS COMPLETE WITH STANDS.

IN A LETTER DATED AUGUST 2, 1950, THE CONTRACTING OFFICER ADVISED THE CORPORATION THAT HE HAD NOT RECEIVED A REPLY TO HIS LETTER OF JULY 10, 1950, AND REQUESTED THAT THE CORPORATION DELIVER THE EQUIPMENT CALLED FOR IN THE PURCHASE ORDER. IN REPLY THERETO, THE CORPORATION ADVISED BY LETTER DATED AUGUST 17, 1950, THAT IT HAD NOT ANSWERED THE CONTRACTING OFFICER'S LETTER OF JULY 10, 1950, BECAUSE IT HAD BEEN ATTEMPTING, WITHOUT ANY SUCCESS, TO LOCATE AN ILLUSTRATION OR SPECIFICATION OR SOME COPY OR DESCRIPTIVE DATA OF THE BLICKMAN MODEL LL 12 URN STAND; AND THAT, IN VIEW OF THE ABOVE, IT WAS UNABLE TO SUBMIT A UNIT PRICE FOR FURNISHING THE COFFEE URNS COMPLETE WITH STANDS. BY LETTER DATED AUGUST 25, 1950, THE CONTRACTING OFFICER REFERRED THE CORPORATION TO "CATALOGUE L," 1946 EDITION OF THE BLICKMAN COMPANY, FOR A GENERAL DESCRIPTION OF THE URN STANDS REQUIRED UNDER ITEM 5.

IN A REPORT DATED OCTOBER 31, 1950, THE CONTRACTING OFFICER STATED THAT TECHNICAL INSPECTORS AVAILABLE TO THE CONTRACTING OFFICER, TOGETHER WITH PERSONNEL OF THE CONTRACTING SECTION, DID NOT DETECT THE MISTAKE ALLEGED BY THE CIRCLE EQUIPMENT COMPANY, INC., TO HAVE BEEN MADE IN ITS BID AND THAT WHEN THE CORPORATION WAS ADVISED BY TELEPHONE THAT ITEMS 1, 5 AND 9 WERE TO BE ACCEPTED AT THE PRICES CITED, THERE WAS NO INDICATION EITHER THROUGH INFERENCE OR OUTRIGHT ASSERTION THAT A MISTAKE IN PRICE HAD BEEN MADE ON ITEM 5.

THERE WAS NOTHING ON THE FACE OF THE BID OF THE CIRCLE EQUIPMENT COMPANY, INC., TO INDICATE THAT THE PRICE BID ON ITEM 5 WAS FOR THE COFFEE URN ONLY. IN THE ABSENCE OF A STATEMENT IN THE BID TO THE CONTRARY, IT WAS TO BE ASSUMED THAT THE CORPORATION WAS OFFERING TO FURNISH COFFEE URNS COPLETE WITH STANDS. ALSO, THE DIFFERENCE BETWEEN THE BID OF THE CIRCLE EQUIPMENT COMPANY, INC., ON ITEM 5, IN THE AMOUNT OF $489.40 EACH, AND THE TWO OTHER BIDS THEREON IN THE AMOUNTS OF $624.54 EACH AND $667 EACH APPARENTLY DID NOT PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH - NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, 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; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE INVITATION ISSUED IN THE PRESENT CASE EXPRESSLY SPECIFIED THAT THE COFFEE URN COVERED BY ITEM 5 WAS REQUIRED TO BE COMPLETE "WITH STAND." THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. CONSEQUENTLY, IF THE PRICE QUOTED BY THE CORPORATION ON ITEM 5 WAS FOR THE COFFEE URN ONLY, AS ALLEGED, SUCH ERROR WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE CORPORATION AND NOT TO ANY FAILURE ON THE PART OF THE GOVERNMENT TO FURNISH SUFFICIENT INFORMATION IN THE MATTER. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION TO RELIEF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259; SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507; 20 COMP. GEN. 652; AND 26 ID. 415.

ACCORDINGLY, ON THE BASIS OF THE FACTS OF RECORD AND THE LAW APPLICABLE THERETO, I FIND NO LEGAL BASIS FOR RELIEVING THE CORPORATION FROM ITS OBLIGATION TO FURNISH THE COFFEE URNS, COMPLETE WITH STANDS, CALLED FOR UNDER ITEM 5 OF THE CONTRACT AT ITS BID PRICE.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT DATED OCTOBER 31, 1950, ARE RETURNED HEREWITH.