B-117765, MAY 10, 1954

B-117765: May 10, 1954

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PRECIS-UNAVAILABLE THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED MARCH 22. TO HAVE BEEN MADE ON ITEM NO. WAS BASED. THERE IS NO INDICATION THAT ANY OF THE SIX OTHER BIDDERS OMITTED THE SAID COURT AREA FROM THEIR BIDS. WAS BLACKED OUT ON THE DRAWING. IT APPEARS THAT ALL THE OTHER BUILDINGS TO BE PAINTED IN THE PROJECT WERE BLACKED OUT FOR THE PURPOSE OF DISTINGUISHING SUCH BUILDINGS FROM THE NUMEROUS OTHER BUILDINGS AT THE BASE SHOWN ON THE DRAWING WHICH WERE NOT INCLUDED IN THE INSTANT PAINT JOB. THE CONTRACTING OFFICER STATES THAT THE COURT IN QUESTION COULD HAVE BEEN SEEN BY THE CONTRACTOR THROUGH THE HALF-GLASS DOORS IN BUILDING NO. 501 UPON A MANUAL INSPECTION OF THE AREAS TO BE PAINTED PRIOR TO SUBMITTING ITS BID.

B-117765, MAY 10, 1954

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED MARCH 22, 1954, WITH ENCLOSURES, FROM THE CHIEF, SETTLEMENTS DIVISION, AIR FORCE FINANCE CENTER, FURNISHING THE REPORT REQUESTED IN OFFICE LETTER OF NOVEMBER 23, 1953, RELATIVE TO AN ERROR ALLEGED BY OGBURN ROOF AND PAINTING COMPANY, INC., TO HAVE BEEN MADE ON ITEM NO. III OF ITS BID ON WHICH CONTRACT NO. AF 01(600)-469 DATED JUNE 10, 1953, WAS BASED.

WHILE THE CONTRACTOR ATTRIBUTES ITS FAILURE TO INCLUDE THE COURT AREA ON BUILDING NO. 501 IN COMPUTING ITS BID ON ITEM NO. III TO THE COMPLETE BLACKING OUT OF THE COURT ON THE DRAWING FURNISHED TO THE BIDDERS AND ALSO TO THE ENCLOSURE OF THE COURT BY EXTERIOR DOORS, THERE IS NO INDICATION THAT ANY OF THE SIX OTHER BIDDERS OMITTED THE SAID COURT AREA FROM THEIR BIDS. ALTHOUGH BUILDING NO. 501, INCLUDING THE REFERRED-TO COURT, WAS BLACKED OUT ON THE DRAWING, IT APPEARS THAT ALL THE OTHER BUILDINGS TO BE PAINTED IN THE PROJECT WERE BLACKED OUT FOR THE PURPOSE OF DISTINGUISHING SUCH BUILDINGS FROM THE NUMEROUS OTHER BUILDINGS AT THE BASE SHOWN ON THE DRAWING WHICH WERE NOT INCLUDED IN THE INSTANT PAINT JOB. HOWEVER, THE CONTRACTING OFFICER STATES THAT THE COURT IN QUESTION COULD HAVE BEEN SEEN BY THE CONTRACTOR THROUGH THE HALF-GLASS DOORS IN BUILDING NO. 501 UPON A MANUAL INSPECTION OF THE AREAS TO BE PAINTED PRIOR TO SUBMITTING ITS BID. PARAGRAPH NO. 1 03, SECTION I, GENERAL PROVISIONS OF THE CONTRACT PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"THE CONTRACTOR ACKNOWLEDGES THAT HE HAS SATISFIED HIMSELF AS TO THE NATURE AND LOCATION OF THE WORK ***. ANY FAILURE BY THE CONTRACTOR TO ACQUAINT HIMSELF WITH ALL THE AVAILABLE INFORMATION CONCERNING THESE CONDITIONS WILL NOT RELIEVE HIM FROM RESPONSIBILITY FOR ESTIMATING PROPERLY THE DIFFICULTY OR COST OF SUCCESSFULLY PERFORMING THE WORK.

THE CONTRACTING OFFICER STATES THAT HE HAD NO NOTICE OF ERROR IN THE CONTRACTOR'S BID AND SINCE THE BIDS ON EACH AREA VARIED CONSIDERABLY, HE HAD NO REASON TO SUSPECT ERROR THEREIN PRIOR TO AWARD. SINCE THE CONTRACTOR'S BID ON ITEM NO. III WAS $16,750 IT COULD NOT BE EXPECTED THAT THE CONTRACTING OFFICER WOULD BE ON NOTICE THAT THERE MIGHT BE AN OMISSION FROM THE BID ON THIS ITEM OF $458.

IN VIEW OF THE FOREGOING, IT APPEARS THAT THE CONTRACTING OFFICER HAD NO ACTUAL OR CONSTRUCTIVE NOTICE PRIOR TO AWARD OF ANY ERROR IN THE CONTRACTOR'S BID AND, CONSEQUENTLY, THE CONCLUSION IS WARRANTED THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH - NO ERROR AS TO ITEM NO. III THEREOF HAVING BEEN ALLEGED UNTIL LONG AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A LEGAL AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U. S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U. S. 75.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICE OF THE ITEM INVOLVED.