B-104870, AUG 23, 1951

B-104870: Aug 23, 1951

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TO HAVE BEEN MADE IN HIS BID ON WHICH CONTRACT NO. AF11(006)-239 IS BASED. THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. THE DECISION IS BEING ADDRESSED TO YOU. THE INVITATION WAS AMENDED TO INCLUDE AN ITEM COVERING THE INSTALLATION OF A 5-TEN AIR-CONDITIONING UNIT IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS AND DRAWING NO. 591. LESTER WAS READ AS BEING $29. LESTER WHO WAS PRESENT AT THE OPENING. LESTER WAS THEN REQUESTED TO SUBMIT HIS WORK SHEETS AND OTHER EVIDENCE IN SUPPORT OF HIS CONTENTION. LESTER WAS ACCEPTED ON THE BASIS OF HIS BID PRICE OF $29. LESTER CONFIRMED THE ERROR IN HIS BID AND ADVISED THAT ALTHOUGH HE WAS RETURNING SIGNED COPIES OF THE CONTRACT HE WAS TAKING EXCEPTION TO THE AMOUNT OF SAID CONTRACT BECAUSE OF THE ERROR IN HIS BID.

B-104870, AUG 23, 1951

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

THERE HAS BEEN RECEIVED A LETTER DATED JULY 23, 1951, WITH ENCLOSURES, FROM JOHN M. DEVEREAUX, MAJOR, USAF, CONTRACTING OFFICER, SCOTT AIR FORCE BASE, ILLINOIS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY J.G. LESTER, CONTRACTOR, 601 NORTH CLAY, KIRKWOOD, MISSOURI, TO HAVE BEEN MADE IN HIS BID ON WHICH CONTRACT NO. AF11(006)-239 IS BASED.

SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION. SEE 26 COMP. GEN. 993, AND 28 ID. 401. HOWEVER, SINCE A DECISION APPEARS NECESSARY, THE DECISION IS BEING ADDRESSED TO YOU.

THE PURCHASING AND CONTRACTING OFFICE, SCOTT AIR FORCE BASE, ILLINOIS, BY INVITATION NO. 11-006-51-77, REQUESTED BIDS - TO BE OPENED JUNE 25, 1951 - FOR FURNISHING OF LABOR AND MATERIALS AND PERFORMING ALL WORK FOR THE ACCOMPLISHMENT OF CONVERTING WARD BUILDING T-1049, HOSPITAL AREA, INTO A MATERNITY WARD AT THE SAID BASE, IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS AND DRAWINGS NOS. 589, 590 AND 591. BY ADDENDUM NO. 1 DATED JUNE 20, 1951, THE INVITATION WAS AMENDED TO INCLUDE AN ITEM COVERING THE INSTALLATION OF A 5-TEN AIR-CONDITIONING UNIT IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS AND DRAWING NO. 591. IN RESPONSE TO THE INVITATION, J.G. LESTER, CONTRACTOR, SUBMITTED A BID WHEREIN HE OFFERED TO PERFORM THE BASIC WORK FOR A JOB PRICE OF $29,596 AND TO PERFORM THE WORK COVERED BY ADDENDUM NO. 1 FOR A LUMP SUM PRICE OF $2,500; HOWEVER, ON WAR DEPARTMENT STANDARD PROCUREMENT FORM NO. 117-BID (CONSTRUCTION CONTRACT) - MR. LESTER OFFERED TO PERFORM THE BASIC WORK AND THE WORK COVERED BY ADDENDUM NO. 1 FOR A PRICE OF $29,596.

IN HIS UNDATED REPORT THE CONTRACTING OFFICER STATES THAT AT THE BID OPENING THE BID OF MR. LESTER WAS READ AS BEING $29,596 FOR THE BASIC WORK AND THE WORK COVERED BY ADDENDUM NO. 1; THAT MR. LESTER WHO WAS PRESENT AT THE OPENING, IMMEDIATELY INTERPOSED AN OBJECTION STATING THAT HIS BID INDICATED A PRICE OF $29,596 FOR THE BASIC WORK AND A PRICE OF $2,500 FOR THE WORK COVERED BY ADDENDUM NO. 1 - A TOTAL PRICE OF $32,096 FOR BOTH ITEMS; THAT MR. LESTER WAS THEN REQUESTED TO SUBMIT HIS WORK SHEETS AND OTHER EVIDENCE IN SUPPORT OF HIS CONTENTION; THAT MR. LESTER, ACCOMPANIED BY THE DEPUTY CONTRACTING OFFICER, THEN PROCEEDED TO HIS VEHICLE FOR THE PURPOSE OF PRECURING THE ORIGINAL WORK SHEETS AND OTHER EVIDENCE IN SUPPORT OF HIS ALLEGATION OF ERROR; AND THAT BECAUSE TIME AND THE IMPORTANCE OF THE PROJECT DID NOT PERMIT SUBMISSION OF THE MATTER TO THIS OFFICE PRIOR TO AWARD, THE BID OF MR. LESTER WAS ACCEPTED ON THE BASIS OF HIS BID PRICE OF $29,596, SUBJECT TO CORRECTION, IF AUTHORIZED BY THE GENERAL ACCOUNTING OFFICE.

BY LETTER DATED JUNE 27, 1951, MR. LESTER CONFIRMED THE ERROR IN HIS BID AND ADVISED THAT ALTHOUGH HE WAS RETURNING SIGNED COPIES OF THE CONTRACT HE WAS TAKING EXCEPTION TO THE AMOUNT OF SAID CONTRACT BECAUSE OF THE ERROR IN HIS BID; THAT HE WOULD PROCEED WITH THE PERFORMANCE OF THE CONTRACT; AND THAT HIS WORK SHEETS WOULD SUBSTANTIATE HIS STATEMENT THAT HE INTENDED QUOTING A PRICE OF $32,096 (BASIC - $29,596, ADDENDUM NO. 1 - $2,500) FOR THE COMPLETE JOB AND, THEREFORE, MR. LESTER REQUESTED THAT THE CONTRACT BE AMENDED ACCORDINGLY. IN SUPPORT OF HIS ALLEGATION OF ERROR, MR. LESTER SUBMITTED HIS ORIGINAL WORK SHEETS AND COPIES OF QUOTATIONS RECEIVED FROM TWO SUBCONTRACTORS. THE SUMMARY SHEET OF SAID WORK SHEETS INDICATES A PRICE OF $29,596 FOR THE BASIC WORK AND A PRICE OF $2,500 FOR THE WORK COVERED BY ADDENDUM NO. 1. WHEN THE AMOUNTS OF $29,596 AND $2,500 ARE ADDED TOGETHER, THE TOTAL IS $32,096 RATHER THAN $29,596 - THE AMOUNT SHOWN ON THE REFERRED-TO FORM NO. 117.

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE IS LITTLE ROOM FOR DOUBT THAT MR. LESTER MADE AN ERROR IN HIS BID, AS ALLEGED. THE GENERAL RULE IS THAT THE ACCEPTANCE OF A BID WITH KNOWLEDGE OF ERROR THEREIN DOES NOT CONSUMMATE A VALID AND BINDING CONTRACT. SEE NASON COAL COMPANY V. UNITED STATES, 64 C. CLS. 526; RESTATEMENT OF THE LAW OF CONTRACTS, SECTION 503; AND WILLISTON ON CONTRACTS, SECTION 1578. ALSO, SEE MOFFETT, HODGKINS, AND CLARKE COMPANY V. ROCHESTER, 178 U.S. 373; KEMP V. UNITED STATES, 38 F. SUPP. 568; ALTA ELECTRIC AND MECHANICAL COMPANY, INC. V. UNITED STATES, 90 C. CLS. 466; AND 17 COMP. GEN. 575, 576.

ACCORDINGLY, SINCE THE ERROR WAS ALLEGED AND SATISFACTORY EVIDENCE OF THE INTENDED BID PRICE FOR THE COMPLETE JOB WAS FURNISHED BY THE CONTRACTOR PRIOR TO AWARD, THE BID OF MR. LESTER - ACCEPTED BECAUSE OF THE IMPORTANCE OF THE PROJECT AND SUBJECT TO THE DECISION OF THIS OFFICE ON THE ALLEGATION OF ERROR - MAY BE CORRECTED TO PROVIDE FOR A PRICE OF $32,096 FOR THE COMPLETE JOB WHICH IS STILL THE LOWEST BID THEREON, AND PAYMENT IS AUTHORIZED TO BE MADE ON THAT BASIS - REFERENCE BEING MADE TO THIS DECISION ON THE VOUCHER OR VOUCHERS COVERING PAYMENT FOR SAID JOB.

THE PAPERS, WITH THE EXCEPTION OF A COPY OF THE CONTRACTING OFFICER'S UNDATED STATEMENT, ARE RETURNED HEREWITH.