B-149350, SEP. 21, 1962

B-149350, SEP. 21, 1962

TO PRECISIONEERING, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JUNE 27, 1962, WITH ENCLOSURE, REGARDING YOUR CLAIM FOR $5,936.61 UNDER DEPARTMENT OF THE AIR FORCE CONTRACT NO. AF 01/601/-38610, DATED JUNE 30, 1961.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. 01-601-61-1745 ISSUED ON MAY 23, 1961, BY HEADQUARTERS, MOBILE AIR MATERIEL AREA, DIRECTORATE OF PROCUREMENT AND PRODUCTION, BROOKLEY AIR FORCE BASE, ALABAMA, YOU SUBMITTED A BID OFFERING TO FURNISH ITEM NO. 1, COVERING 11 RAIL SET ASSEMBLIES, CONVAIR, ETC., TOGETHER WITH CERTAIN OTHER DATA, FOR A TOTAL PRICE OF $8,652. ONE OTHER BID WAS RECEIVED UNDER THE INVITATION IN THE APPARENT TOTAL PRICE OF $16,873.71. BY WIRE COMMUNICATION DATED JUNE 26, 1961, THE DIRECTORATE OF PROCUREMENT AND PRODUCTION REQUESTED THAT YOU VERIFY YOUR BID UNDER THE INVITATION AND BY A TELEGRAM DATED JUNE 28, 1961, YOU CONFIRMED YOUR UNIT PRICE OF $712 EACH FOR ITEM NO. 1, AND ADVISED THAT YOU COULD START PRODUCTION AT ONCE. SUBSEQUENT TO THE RECEIPT OF THE CONFIRMATION OF YOUR BID PRICE THE AIR FORCE ACCEPTED YOUR BID ON JUNE 30, 1961, IN THE TOTAL AMOUNT OF $8,652, THEREBY CONSUMMATING CONTRACT NO. AF 01/601/-38610. IT APPEARS FURTHER TO HAVE BEEN LATER DISCOVERED THAT THE DATA PACKAGE SENT OUT WITH INVITATION NO. 01-601-61- 1745 CONSISTED OF CONVAIR DRAWING 8-96017-803, SHEETS 1, 3 AND 4, SHEET 2 HAVING BEEN INADVERTENTLY OMITTED. THE OMISSION OF SHEET 2 IS THE SOLE BASIS OF YOUR CLAIM FOR EXTRA COSTS OF $5,936.61, UNDER THE CONTRACT, SINCE YOU CONTEND THAT THIS OMISSION CAUSED YOU TO MAKE AN ERROR IN COMPUTING YOUR BID, IN THAT YOU DID NOT INCLUDE ANY AMOUNT THEREIN TO COVER THE COST OF FURNISHING THE BRACKETS AND SUPPORTS REQUIRED FOR THE RAIL ASSEMBLIES.

THE CASE INVOLVES THE ALLEGATION, AFTER AWARD OF CONTRACT, OF AN ERROR IN THE BID UPON WHICH THE CONTRACT WAS PREDICATED. IN THIS REGARD, THE AIR FORCE REPORTS THAT WHILE SHEET 2 OF THE CONVAIR DRAWING, WHICH APPARENTLY WAS INADVERTENTLY OMITTED, SPECIFIED DETAILS OF THE BRACKETS AND SUPPORTS REQUIRED TO BE FURNISHED FOR THE RAIL ASSEMBLIES, SUCH REQUIREMENTS ALSO WERE SPECIFICALLY SET FORTH IN THE BILL OF MATERIALS PROVIDED ON SHEET 1 AS A PART OF THE ASSEMBLIES AND THAT YOU SHOULD HAVE KNOWN THAT THE BRACKET, SPRING AND SUPPORTS CALLED FOR IN THE LOWER RIGHT HAND CORNER OF SHEET 1 WERE REQUIRED TO BE FURNISHED. IN FACT, THE STATEMENT SET FORTH IN YOUR LETTER DATED JULY 6, 1961, AS TO YOUR INTERPRETATION OF THE STOCK LIST FOR -803 ON SHEET 1 OF THE DRAWING INDICATES THAT YOU WERE AWARD OF THE OVER-ALL REQUIREMENT FOR BRACKETS AND SUPPORTS AT THAT TIME AND, THIS BEING THE CASE, IT ONLY REASONABLY MAY BE CONCLUDED THAT YOU ALSO WERE AWARE OF SUCH REQUIREMENTS AT THE TIME OF THE PREPARATION OF YOUR BID. THUS, THE RECORD BEFORE US FAILS TO ESTABLISH EITHER THAT YOU DID NOT KNOW OF THE REQUIREMENT FOR FURNISHING THE BRACKETS AND SUPPORTS IN CONNECTION WITH THE RAIL SET ASSEMBLIES EVEN THOUGH THE DETAILS THEREOF, IN THE FORM OF SHEET 2 OF THE CONVAIR DRAWING, WERE INADVERTENTLY OMITTED FROM THE INVITATION OR THAT AN ERROR ACTUALLY WAS,IN FACT, MADE IN YOUR BID IN THIS REGARD. FURTHERMORE, IT IS NOTED THAT THE GOVERNMENT CONTRACTING OFFICER REQUESTED YOU TO VERIFY YOUR BID PRICE AND, IN REPLY, YOU CONFIRMED THE BID PRICE SPECIFIED IN YOUR BID ON ITEM NO. 1. AFTER SUCH VERIFICATION, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF YOUR BID. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 89 N.J.L. 1, 97 A. 774, AND SHRIMPTON MANUFACTURING COMPANY V. BRIN, 59 TEX.CV.A. 352, 125 S.W. 942. THE FACT THAT THE ACCEPTANCE OF YOUR BID WAS NOT MADE UNTIL AFTER YOU WERE GIVEN AN OPPORTUNITY TO VERIFY YOUR BID, PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF YOU. THEREFORE, IT MUST BE HELD THAT THE ACCEPTANCE OF YOUR BID UNDER THE CIRCUMSTANCES INVOLVED WAS MADE IN GOOD FAITH AND THAT SUCH AN ACCEPTANCE CREATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR ALLOWING ANY PART OF THE ADDITIONAL AMOUNT CLAIMED BY YOU UNDER CONTRACT NO. AF 01/601/-38610.