B-154125, MAY 21, 1964

B-154125, MAY 21, 1964

TO PUBLIC PRINTER:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1964, WITH ENCLOSURES, SUBMITTING FOR OUR CONSIDERATION AND DECISION A REQUEST BY THE AMERICAN COLOR TONE CORPORATION FOR RELIEF FROM AN ALLEGED MISTAKE IN BID.

THE RECORD SHOWS THAT ON APRIL 7, 1964, THE GOVERNMENT PRINTING OFFICE (GPO) ADVERTISED BY MAIL FOR PRICES ON 2500 BOOKS (BUREAU OF SHIPS RELIABILITY DESIGN HANDBOOK (NAVSHIPS 94501) ( IN ACCORDANCE WITH THE SPECIFICATIONS APPEARING IN GPO JACKET NO. 726-108. OF THE 24 FIRMS SOLICITED, THE BID ABSTRACT SHOWS THAT 10 FIRMS CHOSE TO SUBMIT BIDS. THE FOLLOWING IS A LIST OF BID PRICES RECEIVED: $1,905.00, $2,360.00, $2,391.00, $2,506.00, $2,506.50, $2,992.00, $3,070.00, $3,655.00, $3,812.00 AND $3,923.50. ON APRIL 17, 1964, AWARD WAS MADE TO AMERICAN COLOR TONE CORPORATION ON THE BASIS OF ITS LOW BID OF $1,905.00.

AFTER RECEIPT OF GPO PURCHASE NO. 50538, DATED APRIL 20, 1964, AMERICAN COLOR TONE DISPATCHED A LETTER TO THE PRINTING PROCUREMENT SECTION OF GPO ALLEGING ERROR IN ITS BID. THE LETTER STATES:

"IN ESTIMATING THE ABOVE JOB, WE FIGURED THE BINDERY COST FOR THE JOB AT $650. THIS WAS THE FIGURE GIVEN TO US BY MR. GEORGE MANUELO OF COUNTY BINDERY OF MT. VERNON, NEW YORK. AT THE TIME, WE ASKED MR. MANUELO TO SEND US A WRITTEN CONFIRMATION OF THEIR ESTIMATE, BUT THEY FAILED TO DO THIS.

"IN THE MEANWHILE, THE JOB WAS AWARDED TO US, AND WE AGAIN COMMUNICATED WITH COUNTY BINDERY FOR THEIR CONFIRMATION, AT WHICH TIME, THEY INFORMED US THAT THEY HAD MORE AN ERROR IN THEIR COMPUTATIONS AND THAT THE JOB WOULD COST US $1,500.

"WE WOULD, THEREFORE, APPRECIATE IF YOU WOULD BE ABLE TO MAKE SOME ARRANGEMENT TO PAY FOR THE ADDITIONAL COST OF THE BINDERY, WHICH AMOUNTS TO THE SUM OF $850, AS AN "A.A., " OR WHETHER YOU COULD MAKE SOME OTHER ARRANGEMENT IN THIS MATTER.'

IN CORROBORATION OF THE ABOVE, COUNTY BINDERY, BY TELEGRAM DATED APRIL 29, 1964, ADVISED GPO THAT A MISUNDERSTANDING HAD OCCURRED WITH AMERICAN COLOR TONE AND THAT THEY HAD INTENDED TO QUOTE A PRICE OF $600.00 PER THOUSAND FOR THE BINDING, RATHER THAN $600.00 FOR THE ENTIRE JOB.

IN RECOMMENDING THAT RELIEF BE GRANTED, THE CONTRACTING OFFICER STATES THAT HE BELIEVES THAT THE QUOTED PRICE OF $1,905.00 IS NOT A FAIR AND REASONABLE PRICE TO PAY FOR THE 2500 BOOKS AS DESCRIBED IN THE SPECIFICATIONS AND THAT HE SHOULD HAVE NOTED THE POSSIBILITY OF ERROR PRIOR TO AWARD.

UNDER THE FACTS AS PRESENTED, WE FIND IT EXTREMELY DIFFICULT TO CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF ANY ERROR SINCE THE DIFFERENCE BETWEEN THE BID IN QUESTION IS NOT IN EXCESS OF DIFFERENCES FREQUENTLY ENCOUNTERED IN GOVERNMENT PROCUREMENTS. WHILE IT IS TRUE THAT AMERICAN'S BID WAS 50 PERCENT LESS THAN THE HIGHEST BID RECEIVED, THERE WAS APPROXIMATELY ONLY A 20 PERCENT DIFFERENCE BETWEEN AMERICAN'S BID AND THE NEXT TWO LOW BIDS. SEE B-128601, JULY 31, 1956 AND B-121846, NOVEMBER 3, 1954.

IN RESPONSE TO A REQUEST FOR A QUOTATION, IT IS CLEARLY THE RESPONSIBILITY OF THE BIDDER IN THE FIRST INSTANCE TO ASCERTAIN AND QUOTE A PRICE THAT WILL ALLOW IT A REASONABLE PROFIT; AND THE GOVERNMENT SHOULD NOT BE HELD LIABLE FOR ANY LOSS WHICH IS THE RESULT OF AN IMPROVIDENT QUOTATION. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CLS. 120, 163. IN THE PRESENT CASE, ANY MISTAKE--- IF IT CAN AT ALL BE CALLED A MISTAKE--- WAS CLEARLY UNILATERAL IN NATURE AND DOES NOT ENTITLE THE CLAIMANT TO THE RELIEF REQUESTED. B-143802, DATED SEPTEMBER 1, 1960 AND B-137053, DATED OCTOBER 16, 1958.

THE QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR IN BID HAS ACTUALLY BEEN MADE, BUT WHETHER A VALID AND BINDING CONTRACT AROSE. THE BASIS OF THE RECORD BEFORE US WE CONCLUDE THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD, AND THAT THE ACCEPTANCE 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.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CLS. 249, 259.