B-158135, APR. 27, 1966

B-158135, APR. 27, 1966

TO MR. WALTER J. SCHNEIDER:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 1, 1965, AND SUBSEQUENT CORRESPONDENCE, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID ON THE CONSTRUCTION AND LEASE OF A PROPOSED POSTAL FACILITY, HAMILTON STATION POST OFFICE, 4815 AND 4901 HARFORD ROAD, BALTIMORE, MARYLAND.

UNDER DATE OF MAY 11, 1965, THE POST OFFICE DEPARTMENT, WASHINGTON, D.C., SOLICITED BIDS FOR NEW CONSTRUCTION LEASE FACILITIES AT BALTIMORE, MARYLAND, FOR A BASE PERIOD OF 20 YEARS, PLUS 6 RENEWAL OPTIONS OF 5 YEARS EACH. THE INVITATION PROVIDED THAT BIDS WOULD BE RECEIVED IN THE OFFICE OF THE DEPARTMENT'S REGIONAL REAL ESTATE OFFICER AT WASHINGTON, D.C., UNTIL 2:00 P.M., JUNE 10, 1965. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. YOU SUBMITTED A BID OFFERING TO CONSTRUCT AND LEASE THE FACILITIES FOR AN ANNUAL RENTAL OF $11,111.11 FOR THE BASIC 20-YEAR TERM. THE OTHER BIDS WERE IN THE AMOUNTS OF $12,935 AND $13,740. ON JUNE 30, 1965, YOUR BID WAS ACCEPTED AND BY TELEGRAM OF JULY 2, 1965, YOU WERE ADVISED OF SUCH ACCEPTANCE.

BY LETTER OF DECEMBER 1, 1965, ADDRESSED TO OUR OFFICE, YOU REQUESTED THAT THE BASE RENTAL RATE BE INCREASED FROM $11,111 TO $12,900 PER ANNUM TO COMPENSATE YOU FOR AN UNEXPECTED EXCESS COST OF $30,000,WHICH YOU STATE HAS RESULTED FROM A PARTICULARLY UNUSUAL SITE PROBLEM. YOU STATE THAT THIS EXCESS COST COULD NOT HAVE BEEN ACCURATELY ESTIMATED BY YOU ON THE BASIS OF THE PRELIMINARY SKETCHES SUBMITTED BY THE POST OFFICE DEPARTMENT. THE RECORD INDICATES THAT THE REFERRED-TO SITE PROBLEM RESULTS FROM THE FACT THAT THE SITE ON WHICH THE POST OFFICE BUILDING IS TO BE THE CONSTRUCTED SLOPES APPROXIMATELY 17 FEET FROM THE FRONT TO THE REAR OF THE SITE AND THAT THIS SITUATION NECESSITATES THE CONSTRUCTION OF RETAINING WALLS AND A BUILDING RETAINING WALL. IT ALSO REQUIRES THE USE OF A SUBSTANTIAL QUANTITY OF FILL. YOU CONTEND THAT IT WOULD BE AN UNREASONABLE BURDEN AND HARDSHIP FOR YOU TO COMPLETE THE CONSTRUCTION OF THIS POST OFFICE FACILITY UNDER THE EXISTING CONDITIONS. YOU STATE THAT UPON SUBMISSION OF THE PLANS AND SPECIFICATIONS TO VARIOUS LOCAL CONTRACTORS, BIDS WERE RECEIVED RANGING FROM $145,000 TO $179.000 FOR THE CONSTRUCTION OF THE POST OFFICE BUILDING; THAT IF THE COST OF THE LAND AND CERTAIN OTHER COSTS TOTALING $51,290 ARE ADDED TO THE AMOUNT OF THE LOWEST BID RECEIVED, THE TOTAL COST IS $196,290; AND THAT IN VIEW OF THE FACT THAT THE NET YIELD, AFTER DEDUCTION FOR CERTAIN EXPENSES, WILL BE $9,011, THIS WOULD REPRESENT A NET YIELD TO YOU ON YOUR INVESTMENT OF APPROXIMATELY 2.2 PERCENT. IN ADDITION, YOU STATE THAT YOU WILL HAVE A CARRYING CHARGE OF $8,540 ON YOUR FIRST MORTGAGE ON THE PROPERTY AND THAT IF THE AMOUNT OF THE CARRYING CHARGE IS DEDUCTED FROM $9,011, YOU WILL HAVE A NET CASH FLOW OF $471 TO CARRY A NET CASH INVESTMENT OF $74,290.

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. AT THE TIME OF ACCEPTANCE OF YOUR BID THE CONTRACTING OFFICER HAD RECEIVED NO NOTICE OR CLAIM OF ERROR, AND WE AGREE WITH THE ADMINISTRATIVE VIEW THAT THE DIFFERENCE BETWEEN YOUR BID AND THE OTHERS RECEIVED IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT HE SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN YOUR BID. 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 YOUR 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; SALIGMAN 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. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. OF EQUAL IMPORTANCE IN THIS MATTER IS THE RESPONSIBILITY THAT YOU HAD ASSUMED OF ACQUAINTING YOURSELF WITH CERTAIN MATERIAL ASPECTS OF EXISTING CONDITIONS. IN THIS REGARD PARAGRAPH A, CHAPTER 2, OF POD PUBLICATION 39A UNDER THE HEADING "SITE REQUIREMENTS" DIRECTED BIDDERS TO EXAMINE THE SITE IN ORDER TO BECOME "* * * THOROUGHLY ACQUAINTED WITH CONDITIONS THEREON.' ADDITION, THE BID PACKAGE CONTAINED A TOPOGRAPHICAL SURVEY WHICH SHOWED AN ELEVATION OF 258 FEET AS THE HIGHEST PART OF THE SITE WHICH IS THE NORTHERLY CORNER OF HARFORD ROAD, DROPPING DOWN TO AN ELEVATION OF 241 FEET AT THE REAR OF THE SITE, OR A DIFFERENCE IN ELEVATION OF 17 FEET. IS REPORTED THAT YOU AND YOUR WIFE SIGNED AND SUBMITTED DRAWING NO. 6021, SHEETS 1 TO 3, AND THE TOPOGRAPHICAL SURVEY TO THE DEPARTMENT. THE CONTRACTING OFFICER STATES THAT HE IS OF THE OPINION THAT THE DRAWINGS AND THE TOPOGRAPHICAL SURVEY, WHICH WERE MADE PART OF THE BID PACKAGE, GAVE ADEQUATE NOTICE TO ANY AND ALL BIDDERS AS TO THE SITE CONDITIONS. IF YOU FAILED TO EXAMINE THE SITE AS REQUIRED BY THE BIDDING DOCUMENTS THERE IS NO LEGAL BASIS FOR PAYMENT OF THE CLAIM FOR INCREASED COSTS INCIDENT TO THE EXTRA WORK CLAIMED RESULTING FROM "* * * A PARTICULARLY UNUSUAL SITE PROBLEM.' ARCHIE AND ALLAN SPIERS, INC. V. UNITED STATES, 155 CT.CL. 614.

IN REGARD TO YOUR STATEMENT THAT PERFORMANCE OF THIS CONTRACT UNDER THE TERMS STATED THEREIN WOULD WORK A HARDSHIP ON YOU, A CLAIM BASED ON HARDSHIP WOULD BE FOR REJECTION BY OUR OFFICE UNDER THE FUNDAMENTAL RULE THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN, AND THE FACT THAT UNFORESEEN DIFFICULTIES ARE ENCOUNTERED WHICH RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A PECUNIARY LOSS, WILL NEITHER EXCUSE A PARTY FROM THE PERFORMANCE OF AN ABSOLUTE AND UNQUALIFIED UNDERTAKING TO DO A THING THAT IS POSSIBLE AND LAWFUL, NOR ENTITLE HIM TO ADDITIONAL COMPENSATION. SEE SIMPSON V. UNITED STATES, 172 U.S. 372; DAY V. UNITED STATES, 245 U.S. 159; AND COLUMBUS RY. AND POWER CO. V. COLUMBUS, 249 U.S. 399, 412.

FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS FOR RELIEVING YOU FROM THE TERMS OF YOUR ACCEPTED BID. YOUR REQUEST FOR AN INCREASE IN THE RENTALS PAYABLE UNDER THE LEASE MUST ALSO BE DENIED FOR THE SAME REASONS.

THE FOLIO SUBMITTED BY YOU IN SUPPORT OF YOUR REQUEST FOR RELIEF IS RETURNED, AS REQUESTED.