B-161515, JUN. 6, 1967

B-161515, JUN. 6, 1967

TO THE SECRETARY OF TRANSPORTATION:

REFERENCE IS MADE TO A LETTER DATED MAY 11, 1967, WITH ENCLOSURES, FILE REFERENCE CG-14,605-A, FROM THE COMPTROLLER, UNITED STATES COAST GUARD, REQUESTING A DECISION AS TO WHETHER THE RELIEF SOUGHT BY WINNER BOATS, INC. UNDER CONTRACT NO. TCG-14605-A MAY BE GRANTED.

THE UNITED STATES COAST GUARD, WASHINGTON, D.C., BY INVITATION NO. CG- 14,605-A, REQUESTED BIDS FOR FURNISHING 24 EACH 19-FOOT "TRAILER ABLE INTERCOASTAL WATERWAY AIDS TO NAVIGATION (TICWAN) PLASTIC CONSTRUCTION BOATS" AND FOR 13 EACH 17-FOOT UTILITY PLASTIC CONSTRUCTION BOATS, ITEMS 1 AND 2. IN RESPONSE WINNER BOATS INC. SUBMITTED THE ONLY BID RECEIVED WHEREIN IT OFFERED TO FURNISH THE BOATS DESCRIBED UNDER ITEM 1 AT UNIT PRICES OF $4,401.20 TO $4,601.20 AND TO FURNISH THE BOATS DESCRIBED UNDER ITEM 2 AT A UNIT PRICE OF $3,854.35. THE BID OF THE CORPORATION WAS ACCEPTED AS TO THESE ITEMS ON JUNE 30, 1966.

IT IS REPORTED THAT ON DECEMBER 12, 1966, WINNER BOATS ADVISED THE CONTRACTING OFFICE THAT THE 7TH COAST GUARD DISTRICT, MIAMI, FLORIDA, HAD INFORMED THE CORPORATION THAT THE PRICE PAID BY THE COAST GUARD UNDER A PREVIOUS CONTRACT FOR 19-FOOT "TICWAN" BOATS WAS $4,780 EACH. BY LETTER DATED JANUARY 17, 1967, WINNER BOATS REQUESTED A CONTRACT INCREASE OF $38,892.24, ON THE BASIS THAT THE FIGURE OF $4,780 PER BOAT QUOTED BY THE COAST GUARD AS THE PRICE PREVIOUSLY PAID FOR A 19 FOOT TICWAN BOAT WAS FOR A BOAT WITHOUT AN ENGINE. AFTER THIS ALLEGATION WAS DISPROVED, WINNER BOATS IN A LETTER DATED APRIL 14, 1967, ADVISED THE CONTRACTING OFFICER IT HAD UNDERESTIMATED THE COST OF SEVERAL OF THE ITEMS, AND REQUESTED THAT THE UNIT PRICE OF EACH 19 FOOT BOAT BE INCREASED BY $1,691.29 TO COVER THE INCREASED COSTS.

THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN THE CORPORATION'S BID BECAUSE THE PRICE QUOTED BY THE CORPORATION WAS IN LINE WITH THE PRICE PREVIOUSLY PAID FOR THE SAME TYPE OF BOAT AND THE GOVERNMENT'S ESTIMATE. ALSO, SINCE THE BID OF THE CORPORATION WAS THE ONLY BID RECEIVED, THE USUAL BID COMPARISON BASIS WAS NOT AVAILABLE TO THE CONTRACTING OFFICER SO AS TO INDICATE THE PROBABILITY OF AN ERROR IN THE BID. WE ARE OF THE OPINION THAT THE CIRCUMSTANCES PRESENT IN THIS CASE ARE NOT SUCH AS TO HAVE PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF AN ERROR IN THE BID OF THE CORPORATION. SEE 17 COMP. GEN. 560; 26 ID. 415. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE CORPORATION UNTIL AFTER THE 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 EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT.CL. 249, 259, AND SALIGMAN ET AL. V UNITED STATES, 56 F.SUPP. 505, 507.

MOREOVER, THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE THERETO IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT.CL. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CORPORATION'S NEGLIGENCE AND SINCE THE ERROR IN THIS CASE WAS UNILATERAL--- NOT MUTUAL--- THE CORPORATION IS NOT ENTITLED TO RELIEF. SEE 40 COMP. GEN. 326, 332.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR PAYMENT OF ANY ADDITIONAL AMOUNT TO THE CORPORATION UNDER THE CONTRACT INVOLVED.