B-111884, FEB 20, 1953

B-111884, FEB 20, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED JANUARY 28, 1953, WITH ENCLOSURES, FROM THE DIRECTOR OF FINANCE, FURNISHING THE REPORT REQUESTED BY THIS OFFICE RELATIVE TO AN ERROR ALLEGED BY J.C. RENDLER CO., LOS ANGELES, CALIFORNIA, TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NO. AF 33(600)-20507 WAS BASED.

IN RESPONSE TO INVITATION NO. RFP 33-600-52-6026 ISSUED BY THE AIR MATERIEL COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, DAYTON, OHIO, J.C. RENDLER CO., BY LETTERS DATED APRIL 11, MAY 14 AND 20, 1952, SUBMITTED A BID OFFERING TO FURNISH 25 OF THE 40 ITEMS OF SUPPLIES ON WHICH QUOTATIONS WERE REQUESTED FOR THE PRICES SET FORTH THEREIN. THE BID OF THE COMPANY AS TO 16 OF THE ITEMS ON WHICH ITS BID WAS THE LOWEST WAS ACCEPTED ON JUNE 30, 1952, CONSUMMATING CONTRACT NO. AF 33(600)-20507.

BY LETTER DATED AUGUST 1, 1952, AND SUBSEQUENT CORRESPONDENCE, THE CONTRACTOR ADVISED THE CONTRACTING OFFICE THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT THERE HAD BEEN OMITTED FROM THE PRICES QUOTED FOR THE VARIOUS ITEMS THE COST OF THE SPECIAL PACKAGING REQUIRED BY THE SPECIFICATIONS. IN VIEW THEREOF, THE CONTRACTOR REQUESTED THAT IT BE RELIEVED FROM LIABILITY UNDER THE CONTRACT OR THAT THE CONTRACT PRICES BE INCREASED TO COVER THE COST OF THE SPECIAL PACKAGING.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER J.C. RENDLER CO. MADE AN ERROR IN ITS BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. INVITATION FOR BIDS AS TO THE REQUIREMENTS FOR PACKAGING APPARENTLY WAS CLEAR AND UNAMBIGUOUS. THE BID OF THE COMPANY WAS REGULAR ON ITS FACE AND THERE APPEARS TO HAVE BEEN NOTHING THAT SHOULD HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR. IN THAT CONNECTION THE COMPANY'S BID WAS LOW ON ONLY 16 OF THE 25 ITEMS ON WHICH QUOTATIONS WERE SUBMITTED. THUS, THE RECORD INDICATES THAT 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 RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C. CLS. 120, 163. IF, AS ALLEGED, J.C. RENDLER CO. MADE AN ERROR IN ITS BID IN FAILING TO INCLUDE THE COST OF THE SPECIAL PACKAGING, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS MAY HAVE BEEN MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND, THEREFORE, AFFORDS NO BASIS FOR GRANTING RELIEF TO THE COMPANY. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, AND SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR RELIEVING J.C. RENDLER CO. FROM FURNISHING THE SUPPLIES AND AT THE PRICES SPECIFIED THEREFOR IN CONTRACT NO. AF 33(600)-20507.