B-99683, SEP 13, 1951

B-99683, SEP 13, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED JULY 11, 1951, FROM THE CHIEF, ADJUDICATION BRANCH, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FURNISHING THE REPORT REQUESTED BY THIS OFFICE WITH RESPECT TO AN ERROR ALLEGED BY THE AMERICAN BRAKE SHOE COMPANY TO HAVE BEEN MADE IN ITS BID FOR FURNISHING CERTAIN MAINTENANCE DATA TO THE UNITED STATES AIR FORCE, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, UNDER CONTRACT NO. W33-038-AC-21014, PURCHASE ORDER (33-038) 48-3936 AF.

THE WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, ON JUNE 9, 1948, ENTERED INTO THE REFERRED-TO CONTRACT WITH THE AMERICAN BRAKE SHOE COMPANY FOR FURNISHING 156 STATIONARY AIR COMPRESSORS FOR A PRICE OF $515.20 EACH, OR A TOTAL CONTRACT PRICE OF $80,371.20. IT APPEARS THAT LATER THE GOVERNMENT WISHED TO AMEND THE CONTRACT SO AS TO REQUIRE THE CONTRACTOR TO PREPARE CERTAIN HANDBOOK DATA AND THEREFORE, THE CONTRACT WAS AMENDED ON JUNE 7, 1949 - BASED ON THE COMPANY'S BID OF APRIL 29, 1949 - SO AS TO INCLUDE ITEM 1(B), MAINTENANCE DATA IN ACCORDANCE WITH TABLE III, PART B, THEREBY INCREASING THE CONTRACT PRICE BY $662.

BY LETTER DATED MAY 16, 1950, THE CONTRACTOR ADVISED THE CONTRACTING OFFICER THAT ITS QUOTATION OF APRIL 29, 1949, IN THE AMOUNT OF $662, COVERING THE MAINTENANCE, DATA "DID NOT INCLUDE PROVISION FOR FURNISHING ILLUSTRATIONS AND PARTS DATA ON PURCHASED PARTS CONSISTING OF MOTOR, PRESSURE SWITCH, AND STARTER SWITCH" AND REQUESTED AN ADDITIONAL AMOUNT OF $1,450 FOR SUCH SERVICE. THE CONTRACTING OFFICER, BY LETTER DATED JUNE 28, 1950, REPLIED THAT HIS OFFICE HAD NO RECORD WHICH WOULD INDICATE THAT THERE WAS ANY AGREEMENT, ORAL OR OTHERWISE, RELIEVING THE CONTRACTOR FROM FURNISHING DETAILED INFORMATION ON THE COMPLETE EQUIPMENT, AND THAT THE AIR MATERIEL COMMAND HAD NO AUTHORITY TO GRANT THE REQUESTED INCREASE IN PRICE. THE CONTRACTOR, BY LETTER DATED SEPTEMBER 22, 1950, REFERRED THE MATTER TO THIS OFFICE FOR CONSIDERATION.

IN RESPONSE TO THE REQUEST OF THIS OFFICE FOR A REPORT RELATIVE TO THE CONTRACTOR'S CONTENTIONS IN THE MATTER, THE CONTRACTING OFFICER, IN LETTER OF APRIL 25, 1951, STATED, IN PERTINENT PART, AS FOLLOWS:

"3. DURING FEBRUARY 1949 IT WAS DECIDED THE MAINTENANCE DATA WAS ESSENTIAL AND A QUOTATION WAS SOLICITED FROM THE CONTRACTOR BY HEADQUARTERS AIR MATERIEL COMMAND LETTER DATED 24 FEBRUARY 1949. THIS INQUIRY WAS ANSWERED BY THE CONTRACTOR BY LETTER DATED 29 APRIL 1949, IN WHICH THE CONTRACTOR QUOTED A PRICE OF $662.00. AS A RESULT, CHANGE NO. 1, SERIAL NO. (49)3866 WAS ISSUED INCORPORATING THE DATA REQUIREMENT INTO THE CONTRACT AT THE CONTRACTOR'S QUOTED PRICE OF $662.00.

"4. NO EVIDENCE OF ERROR WAS BROUGHT TO THE ATTENTION OF THE UNDERSIGNED EITHER PRIOR TO, OR AFTER ISSUANCE OF THE CHANGE ORDER. PARTICULAR ATTENTION IS INVITED TO TIME PERMITTED THE CONTRACTOR TO PREPARE QUOTE AND STUDY THE GOVERNING SPECIFICATION."

IN VIEW THEREOF, AND SINCE THERE APPEARS TO HAVE BEEN NO INDICATION OF THE ALLEGED ERROR ON THE FACE OF THE BID OR IN THE ATTENDANT CIRCUMSTANCES, IT CANNOT BE CONCLUDED THAT THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. THE RECORD INDICATES THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. SUCH ACCEPTANCE, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE 27 COMP. GEN. 718.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR AUTHORIZING PAYMENT OF ANY ADDITIONAL AMOUNT TO THE CONTRACTOR UNDER CONTRACT NO. W 33-038-AC 21014.