B-149097, JUN 21, 1962

B-149097, JUN 21, 1962

TO STERLING ELECTRONICS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 15, 1962, FORWARDED HERE BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION, REQUESTING RELIEF UNDER CONTRACT NO. GS-00S-37703 BECAUSE OF AN ERROR MADE BY YOUR FIRM IN THE BID ON WHICH THE CONTRACT IS BASED.

THE FEDERAL SUPPLY SERVICE, NATIONAL BUYING DIVISION, WASHINGTON, D.C., BY INVITATION NO. FNVT-W-26618-A-3-20-62 REQUESTED BIDS FOR FURNISHING HAND CRIMPING TOOLS AND CABLE STRIPPERS AS REQUIRED BY THE GENERAL SERVICES ADMINISTRATION STORES DEPOTS THROUGHOUT THE UNITED STATES DURING THE PERIOD BEGINNING JUNE 15, 1962, AND ENDING JUNE 30, 1963. PROSPECTIVE BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE IN THE AGGREGATE FOR GROUPS OF ITEMS SHOWN THEREIN AND THAT ITEM 5 THROUGH 7 WOULD BE AWARDED ON AN INDIVIDUAL ITEM BY ITEM BASIS. IN RESPONSE YOUR FIRM SUBMITTED A BID OFFERING TO FURNISH THE CRIMPING TOOLS UNDER ITEMS 1.A, 2.A AND 6.A AT PRICES OF $3.20, $24 AND $14.40 EACH, RESPECTIVELY, YOUR BID AS TO THESE ITEMS WAS ACCEPTED ON MAY 4, 1962.

IN YOUR LETTER DATED MAY 15, 1962, ADDRESSED TO OUR OFFICE, YOU ALLEGED THAT AN ERROR HAD BEEN MADE ON ITEMS 1.A, 2.A AND 6.A IN THAT THE PRICES QUOTED FOR THESE ITEMS REPRESENTED THE PRICES QUOTED TO YOU BY YOUR SUPPLIER AND THAT SUCH PRICES DID NOT INCLUDE ANY AMOUNT FOR HANDLING AND PROFIT. YOU REQUESTED THAT THE CONTRACT UNIT PRICES FOR ITEMS 1.A, 2.A AND 6.A BE INCREASED TO $3.2555, $24.415 AND $14.614 TO COVER THE OMITTED ITEMS. YOU STATED THAT IF YOUR INTENDED BID PRICES WERE HIGHER THAN THE PRICES QUOTED BY THE NEXT LOWEST BIDDER ON THOSE ITEMS, YOU WOULD BE SATISFIED IN RECEIVING THE AMOUNTS QUOTED BY THE NEXT LOWEST BIDDER AND THAT AS CONSIDERATION TO THE GOVERNMENT FOR INCREASING THE CONTRACT PRICE TO THE AMOUNT OF THE NEXT LOWEST BID YOU WOULD BE WILLING TO REDUCE THE TOTAL CONTRACT PRICE FOR THESE ITEMS BY THE AMOUNT OF $100. WITH YOUR LETTER YOU SUBMITTED A COPY OF YOUR SUPPLIER'S QUOTATION WHICH SHOWS THAT THE PRICES SHOWN THEREIN ARE IDENTICAL TO THE PRICES QUOTED BY YOU IN YOUR BID FOR ITEMS 1.A, 2.A AND 6.A. YOU ALSO SUBMITTED A COPY OF YOUR WORKSHEET WHICH SHOWS THE PRICES QUOTED TO YOU BY YOUR SUPPLIER AND YOUR INTENDED BID PRICES FOR ITEMS 1.A, 2.A AND 6.A.

THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE THAT IT WAS OTHER THAN AS INTENDED. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN YOUR BID. THE ABSTRACT OF BIDS SHOWS THAT ON ITEM 1.A, FOUR OTHER RESPONSIVE BIDDERS QUOTED PRICES RANGING FROM $3.25 TO $3.68; THAT THESE SAME BIDDERS QUOTED PRICES RANGING FROM $24.44 TO $27.60 FOR ITEM 2.A; AND THAT ON ITEM 6.A, THESE BIDDERS QUOTED PRICES RANGING FROM $14.65 TO $16.56. IN VIEW OF THE OTHER BIDS RECEIVED, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID. ALTHOUGH, AFTER AWARD, YOU FURNISHED YOUR WORKSHEET AND THE QUOTATION OF YOUR SUPPLIER, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY YOU IN COMPUTING YOUR BID PRICES ON ITEMS 1.A, 2.A AND 6.A. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED BY YOU 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 OGDEN AND DOUGHERTY V. UNITED STATES, 192 CT.CL. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. WHILE IT MAY BE THAT AN ERROR WAS MADE IN YOUR BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS NOT IN ANY WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE WAS UNILATERAL- -- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE 20 COMP. GEN. 652 AND 26 ID. 415.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICES FOR THE ITEMS IN QUESTION, AS REQUESTED, OR FOR CANCELING THE CONTRACT.