B-164845, JAN. 27, 1969

B-164845, JAN. 27, 1969

TO E. AND E. J. PFOTZER:

BY LETTER OF JANUARY 4, 1969, WITH ENCLOSURE, SUPPLEMENTED BY LETTER OF JANUARY 10 AND ENCLOSURE, YOU REQUEST FURTHER CONSIDERATION OF YOUR CLAIM UNDER CONTRACT NO. DA-49-080-ENG-27, ISSUED BY THE CORPS OF ENGINEERS FOR THE CONSTRUCTION OF SIX ADDITIONAL FILTERS FOR THE DALECARLIA FILTRATION PLANT, WASHINGTON, D.C.

THIS MATTER OF MISTAKE IN YOUR BID HAS BEEN THE SUBJECT OF TWO DECISIONS OF OUR OFFICE DATED OCTOBER 11, AND DECEMBER 4, 1968, WHEREIN WE HELD THAT SINCE THE CONTRACTING OFFICER NEED ONLY LOOK TO THE REASONABLENESS OF THE TOTAL PRICES, WE SAW NO VALID BASIS ON WHICH HE COULD BE CHARGED WITH CONSTRUCTIVE NOTICE OF ERROR IN YOUR BID, AND THAT THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

THE ABSTRACT OF BIDS, DATED AUGUST 23, 1949, INDICATED THAT SIX BIDS WERE RECEIVED IN THE FOLLOWING AMOUNTS: $292,790; $298,980; $386,710; $393,000; $412,786; $417,714. THE GOVERNMENT'S ESTIMATE WAS $356,200. TO SHOW THAT THE CONTRACTING OFFICER SHOULD BE CHARGED WITH CONSTRUCTIVE NOTICE OF ERROR IN YOUR BID OF $292,790, YOU RELY PRIMARILY ON THE FACT THAT THE GOVERNMENT'S ESTIMATE WAS HIGHER THAN YOUR BID. HOWEVER, YOU SEEM TO IGNORE THE FACT THAT YOUR BID WAS ONLY $6,210 LOWER THAN THE NEXT LOWEST BID, AND ONLY $63,410 LOWER THAN THE GOVERNMENT'S ESTIMATE. THIS IS NOT A GREAT VARIANCE ON A ONE-THIRD MILLION DOLLAR JOB. SEE ALLIED CONTRACTORS, INC. V U.S., 310 F.2D 945.

MISTAKE-MAKING CONTRACTORS WILL NATURALLY SEEK TO IMPOSE UPON CONTRACTING OFFICERS A RATHER HIGH LEVEL OF BRILLIANCE FOR THE PURPOSE OF DETECTING THE ERROR. SEE WENDER PRESSES, INC. V U.S., 170 CT.CL. 483, 486. HOWEVER, THE TEST IS WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF "THE PARTICULAR CASE THERE WERE ANY FACTORS WHICH REASONABLY SHOULD HAVE RAISED THE PRESUMPTION OF ERROR IN THE MIND OF THE CONTRACTING OFFICER" (WELCH, MISTAKES IN BID, 18 FED. B.J. 75, 83) WITHOUT MAKING IT NECESSARY FOR THE CONTRACTING OFFICER TO ASSUME "THE BURDEN OF EXAMINING EVERY BID FOR POSSIBLE ERROR BY THE BIDDER. SEE SALIGMAN V U.S., 56 F.SUPP. 505, 508. YOUR BID WAS LOW, BUT IN THE LIGHT OF THE RECEIPT OF SIX BIDS COVERING A RANGE OF PRICES FROM $292,790 TO $417,714 WE DO NOT FEEL THAT YOUR BID WAS SO OUT OF LINE AS NECESSARILY TO HAVE PUT THE CONTRACTING OFFICER ON NOTICE THAT IT WAS MADE BY MISTAKE. SEE ALABAMA SHIRT AND TROUSER CO. V U.S. 121 CT. CL. 313, 331.

WE FIND NOTHING IN THE AUTHORITIES CITED IN YOUR SUPPLEMENTAL PRESENTATION OF JANUARY 10 TO REQUIRE MODIFICATION OF OUR PREVIOUS DECISIONS HEREIN. IN THE CITED DECISION OF OUR OFFICE, B-165127, IT IS TO BE NOTED THAT THE ERRONEOUS BID WAS NOT ONLY 14 PERCENT LESS THAN THE GOVERNMENT'S ESTIMATE, BUT 27 PERCENT LESS THAN THE NEXT LOWEST BID. THE APPEAL OF FRAMLAU CORP., IBCA NO. 228, THE BID CONSIDERED BY THE BOARD WAS ONLY ABOUT ONE-THIRD THE AMOUNT OF THE AVERAGE OF ALL OTHER BIDS. THE EXTRACT FROM CORBIN ON CONTRACTS IS ONLY A SMALL PART OF THAT AUTHOR'S COMPLETE TREATMENT OF THE SUBJECT OF MISTAKES, WHICH ALSO TAKES ACCOUNT OF THE PRINCIPLES CITED BY OUR OFFICE. IN FACT, THE EXTRACT WHICH YOU CITE DEALS SPECIFICALLY WITH MISTAKES OF COMPUTATION, WHICH, SO FAR AS WE HAVE BEEN ABLE TO ASCERTAIN FROM THE RECORD, IS NOT YOUR CASE.

REFERRING FURTHER TO THE FACT THAT IN THE PRESENT SITUATION THERE WAS ANOTHER BID CONSIDERABLY LOWER THAN THE GOVERNMENT ESTIMATE, AND ONLY $6,190 HIGHER THAN YOURS, YOUR ATTENTION IS DIRECTED TO THE FACT THAT IT HAS BEEN THE CONSISTENT POSITION OF THIS OFFICE THAT IN NO CASE OF MISTAKE IN BID IS THERE AUTHORITY TO PAY ANY AMOUNT IN EXCESS OF THE NEST LOW BID. SEE 36 COMP. GEN. 585; 37 COMP. GEN. 398; ID. 654; ID. 685. THE COURT OF CLAIMS ALSO APPEARS TO ACCEPT THIS AS THE PROPER MEASURE OF THE GOVERNMENT'S LIABILITY IN SUCH CASES. SHEPARD V UNITED STATES, 95 CT.CL. 407. THE MAXIMUM AMOUNT WHICH COULD BE ALLOWED YOU WOULD THUS BE ONLY $6,190 IN ANY EVENT.

WE FIND, HOWEVER, NO REASON TO MODIFY OUR PREVIOUS DECISIONS OF OCTOBER 11, AND DECEMBER 4, 1968.