B-162396, NOV. 13, 1967

B-162396, NOV. 13, 1967

CONTRACTS - MISTAKES - REFORMATION - JUSTIFICATION DECISION TO INTERSTATE RESTAURANT SUPPLY CO. DENYING REQUEST FOR RELIEF UNDER CONTRACT WITH FEDERAL CORRECTIONAL INSTITUTION ON BASIS OF MISTAKE IN BID. CONTRACTOR WHO TWO MONTHS AFTER AWARD OF CONTRACT ON "ALL OR NONE BASIS" ALLEGED ERROR IN BID FOR FURNISHING CULINARY EQUIPMENT IN THAT COST OF CUP RACKS HAD BEEN OMITTED MAY NOT HAVE CONTRACT PRICE INCREASED SINCE RECORD NOT ONLY SHOWS THAT UNIT PRICES OF OTHER BIDDERS FOR ITEM WERE SUBSTANTIALLY SAME BUT CONTRACTING OFFICER IN AGGREGATE BID SITUATIONS IS NOT UNDER ANY DUTY TO COMPARE PRICES ON INDIVIDUAL ITEMS.

TO INTERSTATE RESTAURANT SUPPLY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 1, 1967, REQUESTING RELIEF UNDER A CONTRACT TO FURNISH CERTAIN SUPPLIES BECAUSE OF AN ERROR MADE BY YOUR FIRM IN THE BID ON WHICH THE CONTRACT IS BASED.

THE FEDERAL CORRECTIONAL INSTITUTION, TERMINAL ISLAND, CALIFORNIA,BY IFB NO. 23-2964-F REQUESTED BIDS FOR FURNISHING SIX ITEMS OF CULINARY EQUIPMENT, TO BE OPENED MAY 15, 1967. PROSPECTIVE BIDDERS WERE ADVISED THAT "BID WILL BE AWARDED ON AN ALL OR NONE BASIS.' ITEM NO. 5 PROVIDED, IN PART, FOR 5 UNITS AS FOLLOWS: "DISPENSER, TO HAVE STRUCTURAL SPECIFICATIONS AS ITEM NUMBER FOUR (NO. 4) EXCEPT SHALL DISPENSE UP TO TWELVE DOZEN CUPS FROM 12 RABURN NO. 4000 CUP RACKS TO BE SUPPLIED WITH EACH DISPENSER AND SHALL HAVE OVERALL DIMENSIONS OF 24-1/2 INCH LONG - BY 24-25/32 INCH WIDE BY 36 INCH HIGH. DISPENSER SHOULD BE AMF OC-SS OR EQUAL.' IN RESPONSE, YOUR FIRM SUBMITTED A BID IN THE AGGREGATE AMOUNT OF $5,330, WHICH INCLUDED A UNIT PRICE OF $137 ON ITEM NO. 5. NINE BIDS WERE RECEIVED AND YOUR FIRM WAS AWARDED THE CONTRACT AS THE LOW AGGREGATE BIDDER.

BY LETTER DATED JULY 6, 1967, ADDRESSED TO THE CONTRACTING OFFICER, WHICH WAS APPROXIMATELY TWO MONTHS AFTER AWARD, YOU ALLEGED THAT AN ERROR HAD BEEN MADE IN YOUR BID ON ITEM NO. 5 IN THAT YOU HAD NOT INCLUDED THEREIN THE COST OF FURNISHING CUP RACKS, STATING THAT THE REQUIREMENT FOR FURNISHING CUP RACKS UNDER ITEM NO. 5 HAD BEEN MISSED BY YOUR SUPPLIER, YOUR FIRM AND THREE OF YOUR COMPETITORS. IN THIS CONNECTION, WITH YOUR LETTER TO US YOU ENCLOSED A COPY OF YOUR SUPPLIER'S ESTIMATE TO YOU, WHICH IN FACT DID NOT APPEAR TO PROVIDE FOR SUPPLYING CUP RACKS IN CONNECTION WITH ITEM NO. 5. YOU ARE CLAIMING AN ADDITIONAL $420 FOR FURNISHING 60 CUP RACKS AT $7 EACH.

THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE THAT IT WAS OTHER THAN AS INTENDED, AND THE CONTRACTING OFFICER HAD NO REASON TO SUSPECT AN ERROR IN YOUR BID. THE ABSTRACT OF BIDS RECEIVED SHOWS THE FOUR LOWEST AGGREGATE BIDS RECEIVED TO HAVE BEEN AS FOLLOWS: INTERSTATE RESTAURANT SUPPLY, $5,330; IDEAL RESTAURANT SUPPLY CO., INC., $5,400.28; DOHRMANN CO., $5,437.37; AND LONG BEACH STORE FIXTURE, $5,761. THE UNIT PRICES QUOTED ON ITEM NO. 5 WERE RESPECTIVELY, $137, $135.03, $135.96, AND $144. WITH RESPECT TO AGGREGATE BIDS, IT IS THE GENERAL RULE THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. 42 COMP. GEN. 384. 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, 102 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 PRICE FOR THE ITEM IN QUESTION.