B-110932, DEC 22, 1952

B-110932, DEC 22, 1952

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 21, 1952, FROM THE DIRECTOR OF FINANCE, RELATIVE TO AN ERROR ALLEGED BY THE E. F. HOUGHTON & CO. TO HAVE BEEN MADE IN ITS BID DATED OCTOBER 2, 1951, FOR PACKING ASSEMBLIES ON WHICH UNNUMBERED CONTRACT (PURCHASE ORDER NO. 52-12021) DATED NOVEMBER 13, 1951, WAS BASED.

IN RESPONSE TO A REQUEST FOR PROPOSAL FOR FURNISHING VARIOUS ITEMS OF SUPPLIES, THE COMPANY SUBMITTED A BID DATED OCTOBER 2, 1951, TO THE KELLY AIR FORCE BASE, TEXAS, WHEREIN IT OFFERED TO FURNISH 181 "A3009-7 PACKING ASSY PUMP V RING LEATHER COMMERCIAL SHEARING AND STAMPING CO. OR EQUAL (9900)" ITEM NO. 924-(2), AT $0.3016 EACH. THE BID WAS ACCEPTED AND THE ABOVE-CITED PURCHASE ORDER WAS ISSUED.

UPON THE RECEIPT OF THE PURCHASE ORDER, THE COMPANY ADVISED THE BASE THAT IT HAD MADE AN ERROR IN THE PREPARATION OF ITS BID IN THAT THE PRICE QUOTED WAS FOR PART NO. A3006-7, ONLY, ONE OF THE THREE PACKING RINGS OF WHICH THE ASSEMBLY IS COMPRISED, AND THAT ITS CORRECT PRICE FOR FURNISHING AN A3009-7 ASSEMBLY IN ACCORDANCE WITH SPECIFICATIONS IS $1.96 EACH. VIEW THEREOF, THE COMPANY REQUESTED THAT THE CONTRACT PRICE BE INCREASED TO THE LATTER PRICE. THE COMPANY WAS ADVISED THAT THE CONTRACTING OFFICE WAS WITHOUT AUTHORITY TO INCREASE THE CONTRACT PRICE, THAT THE MATERIAL SHOULD BE FURNISHED, AND THAT, IF THE COMPANY FELT IT WAS ENTITLED TO RELIEF, CLAIM THEREFOR SHOULD BE MADE WITH THE GENERAL ACCOUNTING OFFICE. BY LETTER OF JULY 15, 1952, THE COMPANY REQUESTED THIS OFFICE TO AUTHORIZE AN INCREASE IN THE CONTRACT PRICE TO $1.96 EACH FOR THE ASSEMBLIES FURNISHED, AND, BY LETTER OF AUGUST 22, 1952, FORWARDED CERTAIN DATA IN SUBSTANTIATION OF ITS ALLEGATION OF ERROR.

THE BASIC QUESTION FOR DETERMINATION IS NOT WHETHER THE CONTRACTOR MADE A MISTAKE IN THE PREPARATION OF ITS BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. NO ERROR WAS APPARENT ON THE FACE OF THE BID. THE CONTRACTING OFFICER, IN UNDATED SECOND INDORSEMENT STATED, IN PERTINENT PART, AS FOLLOWS:

"2. *** NO OTHER BID WAS RECEIVED, THEREFORE, THERE WAS NO BASIS FOR COMPARISON AND NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF AN ERROR IN BID.

"6. THIS OFFICE HAS NO AVAILABLE RECORD OF PRIOR PURCHASE OF SUBJECT ITEM, HOWEVER, RESEARCH ADVISES THE AIR FORCE STOCK LIST PRICE IS $0.30 EACH."

THUS, SO FAR AS THE PRESENT RECORD SHOWS, THE CONTRACTOR'S BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL RECEIPT OF THE PURCHASE ORDER. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES, 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 CO. V. UNITED STATES, 259 U.S. 75.

FURTHERMORE, THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF A BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. THE INVITATION CLEARLY STATED THAT THE COMMERCIAL SHEARING AND STAMPING CO. PACKING ASSEMBLY NO. A3009-7, OR EQUAL, WAS REQUIRED. IF THE CONTRACTOR OFFERED TO FURNISH THE COMPLETE PACKING ASSEMBLY AT A PRICE APPLICABLE TO ONE OF THE CONSTITUENT PARTS THEREOF, AS ALLEGED, SUCH ERROR WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE BIDDER AND NOT TO ANY FAILURE OF THE GOVERNMENT TO FURNISH INFORMATION AS TO WHAT WAS REQUIRED. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61. SUCH ERROR AS WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, DOES NOT ENTITLE THE BIDDER TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C. CLS. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR AUTHORIZING AN INCREASE IN THE PRICE SPECIFIED IN THE BID AS ACCEPTED.