B-128840, OCT. 11, 1956

B-128840, OCT. 11, 1956

TO WESTINGHOUSE ELECTRIC CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1956, WITH ENCLOSURES, RELATING TO AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR PROPOSAL FOR REPAIRING FIVE ITEMS OF TRANSFORMERS, ON WHICH NEGOTIATED CONTRACT NO. AF-30/635/-6689, DATED JUNE 1, 1956, WAS AWARDED BY THE GRIFFISS AIR FORCE BASE, ROME, NEW YORK. IN CONNECTION WITH THE ALLEGED ERROR, YOU STATED THAT YOU TRANSPOSED THE FIGURES IN THE UNIT PRICE ON ITEM 5, IN THAT YOU QUOTED A PRICE OF $124.25 EACH AS TO SUCH ITEM WHEREAS THE CORRECT PRICE SHOULD HAVE BEEN $214.25 EACH.

BY LETTER OF AUGUST 10, 1956, WE ADVISED YOU THAT THE MATTER WOULD BE GIVEN CONSIDERATION IF YOU SUBMITTED ADDITIONAL EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ERROR, SUCH EVIDENCE TO CONSIST OF YOUR ORIGINAL WORKSHEET ON WHICH YOU COMPUTED YOUR BID, SWORN TO AS SUCH, AND ANY OTHER EVIDENCE WHICH YOU MIGHT HAVE TENDING TO ESTABLISH THE ALLEGED ERROR. YOU WERE FURTHER ADVISED THAT A REPORT OF THE FACTS IN THIS CASE WAS BEING REQUESTED FROM THE AIR FORCE FINANCE CENTER AT DENVER, COLORADO.

THERE APPEARS TO HAVE BEEN NO RESPONSE TO THE SUGGESTION CONTAINED IN OUR LETTER OF AUGUST 10, 1956, THAT YOU SUBMIT TO THIS OFFICE ADDITIONAL EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ERROR. HOWEVER, A REPORT HAS BEEN RECEIVED FROM THE AIR FORCE FINANCE CENTER, DATED SEPTEMBER 20, 1956, TRANSMITTING AN ENDORSEMENT DATED SEPTEMBER 12, 1956, FROM THE CONTRACTING OFFICER, GRIFFISS AIR FORCE BASE, NEW YORK, READING IN PART AS FOLLOWS:

"2. WESTINGHOUSE ELECTRIC CORPORATION SUBMITTED ITS BID AFTER PHYSICAL EXAMINATION OF THE TRANSFORMERS BY ITS MAINTENANCE SALES ENGINEER, MR. A. W. SILL. UPON EXAMINATION OF THE BID, IT WAS FOUND THAT THE EXTENSION OF THE PRICE ON ITEM 5 CONTAINED AN ERROR. MR. SILL CORRECTED THE PRICE EXTENSION BUT DID NOT QUESTION THE UNIT PRICE.

"3. THERE WAS NO REASON TO SUSPECT AN ERROR HAD BEEN MADE BY THE CONTRACTOR IN THE UNIT PRICE QUOTED ON THIS ITEM.'

IT APPEARS THAT YOUR PROPOSAL DATED MAY 4, 1956, WAS THE ONLY ONE RECEIVED, AND THE CONTRACTING OFFICER WAS THEREFORE IN NO POSITION TO MAKE ANY COMPARISON OF BIDS. NO GROUNDS ARE FOUND IN THE RECORD FOR CHARGING THE CONTRACTING OFFICER WITH NOTICE OF POSSIBLE ERROR. INSOFAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID IN THIS CASE WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. ACCORDINGLY, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF YOUR BID, AS ALLEGED, IT MAY PROPERLY BE ATTRIBUTED SOLELY TO YOUR NEGLIGENCE AND SINCE THE ERROR HEREIN WAS UNILATERAL, NOT MUTUAL, YOU ARE NOT ENTITLED TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR ALLOWING AN ADDITIONAL AMOUNT OR FOR MODIFICATION OF THE CONTRACT BECAUSE OF THE ALLEGED MISTAKE IN BID.