B-164845, DEC. 4, 1968

B-164845, DEC. 4, 1968

TO E. AND E. J. PFOTZER:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1968, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 11, 1968, B-164845, WHICH DENIED YOUR CLAIM IN CONNECTION WITH CONTRACT NO. DA-49-080-ENG-27 ISSUED BY THE CORPS OF ENGINEERS, WASHINGTON, D.C.

IN OUR DECISION WE DENIED YOUR CLAIM FOR ADDITIONAL COMPENSATION ON THE FOLLOWING GROUNDS: ,YOUR BID WAS ONLY 18 PERCENT LOWER THAN THE GOVERNMENT'S ESTIMATE, AND ONE OTHER BID WAS RECEIVED WHICH WAS 16 PERCENT LOWER THAN THE GOVERNMENT'S ESTIMATE. SINCE THE CONTRACTING OFFICER NEED ONLY LOOK TO THE REASONABLENESS OF THE TOTAL PRICES, AND IS NOT REQUIRED TO CHECK INDIVIDUAL ITEM PRICES, WE SEE NO VALID BASIS ON WHICH HE CAN BE CHARGED WITH CONSTRUCTIVE NOTICE OF ERROR IN YOUR BID.'

YOU ALLEGE, AS A BASIS FOR RECONSIDERATION, THAT OUR DECISION DOES NOT DISCUSS YOUR TWO ALLEGATIONS, NAMELY, FAILURE OF THE GOVERNMENT TO PRODUCE ITS DETAILED PREBID ESTIMATE AND THE CONSTRUCTIVE FRAUD ON THE PART OF THE CONTRACTING OFFICER IN NOT NOTICING THE ALLEGED MISTAKE IN YOUR BID.

CONCERNING YOUR CONTENTION THAT THE DETAILED PREBID COST ESTIMATE MADE BY THE GOVERNMENT IS INDISPENSABLE TO YOUR CLAIM, IT IS OUR POSITION THAT SO FAR AS DISPOSITION OF THE CLAIM BY THIS OFFICE IS CONCERNED ONLY THE AGGREGATE AMOUNT OF THE GOVERNMENT ESTIMATE IS MATERIAL. THE BASIS FOR YOUR CLAIM IS THAT YOUR BID WAS SO MUCH OUT OF LINE WITH THE GOVERNMENT ESTIMATE AS TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID, AND THAT HIS PURPORTED ACCEPTANCE OF THE BID IN THAT SITUATION WAS INEFFECTIVE TO CONSUMMATE A VALID CONTRACT.

IN CONSIDERING THE ERROR DETECTION RESPONSIBILITY OF CONTRACTING OFFICERS WE HAVE HELD THAT SUCH OFFICERS ARE NOT UNDER A DUTY TO MAKE A DETAILED EXAMINATION OF INDIVIDUAL ITEMS OF A BID IF THE AGGREGATE TOTAL AMOUNT IS NOT IN ITSELF SO OUT OF LINE WITH OTHER BIDS RECEIVED AS TO CONSTITUTE CONSTRUCTIVE NOTICE OF ERROR. IN OUR DECISION OF OCTOBER 11, 1968, WE CONCLUDED ON THE RECORD OF THE BIDS IN THE SUBJECT PROCUREMENT IN RELATION TO EACH OTHER AND TO THE AMOUNT OF THE GOVERNMENT ESTIMATE THAT WE COULD NOT HOLD THE CONTRACTING OFFICER'S ACCEPTANCE OF YOUR BID TO HAVE BEEN UNAUTHORIZED OR IN BAD FAITH. WE BELIEVE THAT DECISION REACHES A PROPER LEGAL CONCLUSION, AND WE DO NOT FEEL THAT WE PROPERLY COULD OR SHOULD NOW CONSIDER INDIVIDUAL ITEMS WHICH IN OUR VIEW THE CONTRACTING OFFICER WAS NOT REQUIRED TO CONSIDER.

AS TO YOUR ALLEGATIONS OF FRAUD, OUR CONCLUSION STATED ABOVE IS DISPOSITIVE OF THE QUESTION OF FRAUD IN THE ACCEPTANCE OF THE BID. YOUR FURTHER ALLEGATION OF FRAUD APPEARS TO BE BASED UPON YOUR CHARGE THAT THE CONTRACTING OFFICER AFFIRMATIVELY AND KNOWINGLY CONCEALED HIS PRIOR KNOWLEDGE OF YOUR ORIGINAL GROSS ERROR. INASMUCH AS WE DO NOT FIND THAT HE WAS CHARGEABLE WITH PRIOR KNOWLEDGE, OR THAT THE AMOUNT OF YOUR BID WAS SUCH AS TO SUGGEST GROSS ERROR, WE CANNOT REGARD YOUR ALLEGATIONS AS SUPPORTED BY THE RECORD.

IN EXERCISING OUR STATUTORY AUTHORITY TO SETTLE AND ADJUST CLAIMS AGAINST THE GOVERNMENT THE FUNCTION OF THIS OFFICE IS TO DETERMINE FROM THE WRITTEN RECORD WHETHER THE LEGAL MERITS OF A CLAIM ARE SUFFICIENTLY CLEAR TO JUSTIFY PAYMENT THROUGH CUSTOMARY ADMINISTRATIVE CHANNELS, OR WHETHER IT IS SO DOUBTFUL THAT IT WOULD BE ALLOWED BY A COURT OF COMPETNET JURISDICTION AS TO REQUIRE US TO DENY PAYMENT AND LEAVE THE CLAIMANT TO SUCH JUDICIAL REMEDIES AS MAY BE AVAILABLE.

ON THE RECORD IN THIS CASE WE DO NOT FEEL THAT WE WOULD BE JUSTIFIED IN AUTHORIZING ADMINISTRATIVE PAYMENT OF ANY PART OF YOUR CLAIM (WHETHER IT BE FOR $85,000 OR $356,000).