B-133677, SEP. 17, 1957

B-133677, SEP. 17, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER OF SEPTEMBER 4, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR TRUCK-TRACTOR SALES COMPANY, INC; ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA-31-126-TC-60, DATED APRIL 16, 1957, IS BASED.

BY INVITATION NO. TC-31-126-57-17, DATED MARCH 27, 1957, THE PROCUREMENT DIVISION, TRANSPORTATION CORPS, SUNNY POINT ARMY TERMINAL, SOUTHPORT, NORTH CAROLINA, REQUESTED BIDS--- TO BE OPENED APRIL 10, 1957, FOR FURNISHING, ITEM 1, A THREE-QUARTER TON TRUCK AND ITEM 2B, A TWO AND ONE- HALF TON TRUCK, FOUR WHEEL DRIVE. THE TRUCK-TRACTOR SALES COMPANY, INC; SUBMITTED A BID OFFERING TO FURNISH ITEM 1 FOR $2,718 AND ITEM 2B FOR $8,452. AWARD WAS MADE TO THE COMPANY ON APRIL 16, 1957, FOR THE FURNISHING OF BOTH ITEMS. BY LETTER OF APRIL 19, 1957, THE COMPANY ADVISED THE CONTRACTING OFFICER THAT A MISTAKE HAD BEEN MADE ON ITEM 2B AND THAT ITS BID ON THIS ITEM SHOULD HAVE BEEN $9,010.60 INSTEAD OF $8,452. THE COMPANY ALLEGED THAT THE ERROR OCCURRED BY ITS QUOTING THE GMC CATALOG PRICE BASED ON THE PRICE OF A FRONT AXLE DRIVE UNIT FOR A ONE- HALF TON TRUCK INSTEAD OF A TWO AND ONE-HALF TON TRUCK.

THE CONTRACTING OFFICER HAS RECOMMENDED THAT RELIEF BE GIVEN THE CONTRACTOR. HOWEVER, NO BASIS WAS GIVEN FOR SUCH A RECOMMENDATION.

IN THE FOURTH INDORSEMENT OF JULY 25, 1957, FROM HEADQUARTERS, SUNNY POINT ARMY TERMINAL, SOUTHPORT, NORTH CAROLINA, IT IS STATED THAT THE GOVERNMENT'S ESTIMATED PRICE FOR THAT TYPE OF TRUCK INVOLVED WAS $5,400 BASED ON AN ENGINEER PRICING GUIDE DATED JULY 1955. ALSO, IT WAS STATED THAT IT WAS NT FEASIBLE THAT THE CONTRACTING OFFICER COULD HAVE BEEN PUT ON NOTICE OF THE ERROR PRIOR TO AWARD BECAUSE NO EXPERIENCE FACTORS WERE AVAILABLE AT THAT TERMINAL.

UNDER THE FACTS REPORTED, IT DOES NOT APPEAR THAT THE DIFFERENCES BETWEEN THE CONTRACTOR'S BID PRICE ON ITEM 2B OF $8,452 AND THE OTHER BIDS

OF $9,636.27, $9,747.06, AND $10,049.52 WAS SO GREAT AS TO JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF PROBABILITY OF ERROR. IT FOLLOWS THAT THE ACCEPTANCE OF THE BID OF THE TRUCK-TRACTOR SALES COMPANY, INC. WAS IN GOOD FAITH-- NO ERROR HAVING BEEN ALLEGED BY IT UNTIL AFTER THE AWARD OF THE CONTRACT-- AND THAT SUCH ACTION 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 THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATIONS UNDER THE CONTRACT. SEE OGDEN AND DOUGHTERTY V. UNITED STATES, 56 F. SUPP. 505,507. 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507.

THE PAPERS" WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF APRIL 23, 1957, ARE RETURNED.