B-125741, DEC. 22, 1955

B-125741, DEC. 22, 1955

TO HONORABLE, SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 6, 1955, WITH ENCLOSURES, FROM THE CHIEF, ADJUDICATIONS BRANCH, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, DENVER, COLORADO, FURNISHING REPORT CONCERNING A LETTER DATED OCTOBER 10, 1955, FROM GRATON AND KNIGHT COMPANY, WORCESTER, MASSACHUSETTS, WHEREIN ERROR IS ALLEGED TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NO. AF33/602/-5986 FOR OXYGEN MASK TABS IS BASED.

THE HEADQUARTERS, WILKINS AIR FORCE DEPOT, PROCUREMENT DIRECTORATE, BY INVITATION NO. IFB33-602-55-29, REQUESTED BIDS--- TO BE OPENED DECEMBER 2, 1954--- FOR FURNISHING TWO ITEMS OF ,TAB-OXYGEN MASK FLYING HELMET, IN ACCORDANCE WITH USAF DRAWING NO. 54C19602" UNDER FEDERAL STOCK NO. 8415- MSL, PART NO.S 54C19602-L AND 54C19602-R. IN RESPONSE TO THE INVITATION THE GRATON AND KNIGHT COMPANY SUBMITTED A BID DATED NOVEMBER 30, 1954, WHEREIN IT OFFERED TO FURNISH 65,373 EACH OF ITEMS 1 AND 2 AT A PRICE OF ?1334 EACH. CONTRACT NO. AP33/602/-5986 WAS AWARDED TO THE COMPANY AS LOW BIDDER ON ITEMS 1 AND 2 ON JANUARY 31, 1955.

THEREAFTER, IN A LETTER DATED FEBRUARY 7, 1955, CONFIRMING A TELEPHONE CONVERSATION ON FEBRUARY 3, THE CONTRACTOR ALLEGED ERROR IN ITS BID IN THAT INSTEAD OF FIGURING THREE STUDS AND THREE EYELETS PER TAB, IT HAD ONLY INCLUDED THE COST OF ONE STUD AND ONE EYELET, AND AS A CONSEQUENCE, THE ACTUAL COST FOR THE HARDWARE WAS $9,805.95 IN PLACE OF $3,268.65, AS ORIGINALLY ESTIMATED, OR A NET LOSS ON HARDWARE ALONE OF $6,537.30. THE COMPANY ENCLOSED A COPY OF ITS ESTIMATING SHEET AND REQUESTED THAT THE CONTRACT BE TERMINATED AT NO COST OR FOR APPROVAL TO PROCEED AT A NEW UNIT COST OF ?1834 EACH.

THE ABSTRACT OF BIDS SHOWS THAT THE THIRTEEN OTHER BIDS RECEIVED FOR ITEMS 1 AND 2 RANGED IN PRICE FROM ?154 PER UNIT TO THE HIGHEST OF ?512 PER UNIT. THE DISCREPANCY BETWEEN THE COMPANY'S BID OF ?1334 EACH ON ITEMS 1 AND 2 AND THE OTHER BIDS ON SAID ITEMS DOES NOT APPEAR TO BE SO GREAT AS TO JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY.

THE RESPONSIBILITY FOR PREPARING 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. THE CONTRACTING OFFICER REPORTS THAT HE WAS NOT ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID PRIOR TO AWARD. SUCH ERROR AS WAS MADE IN THE BID OBVIOUSLY WAS DUE SOLELY TO THE NEGLIGENCE OF THE COMPANY 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 COMPANY TO RELIEF. OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR RELEASING THE GRATON AND KNIGHT COMPANY FROM ITS OBLIGATION TO FURNISH THE OXYGEN MASK TABS AT THE PRICES SPECIFIED IN ITS BID.