B-126176, FEB. 2, 1956

B-126176, FEB. 2, 1956

TO MR. MIKE KISS:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1955, SUPPLEMENTED BY YOUR LETTER OF DECEMBER 13, RELATIVE TO AN ALLEGED ERROR IN YOUR BID DATED SEPTEMBER 20, 1955, ON WHICH CONTRACT NO. N0Y 89911/SF) DATED OCTOBER 10, 1955, WAS BASED.

THE RECORD INDICATES THAT BIDS WERE SOLICITED ON SEPTEMBER 1, 1955, FOR FURNISHING THE MATERIAL AND SERVICES REQUIRED TO PAINT THE EXTERIOR SURFACES OF THE HEADHOUSE AND THREE QUONSET TYPE HUTS AT THE NAVAL RESERVE TRAINING CENTER, BETHLEHEM, PENNSYLVANIA, IN STRICT ACCORDANCE WITH SPECIFICATION NO. 48594/SF), INCLUDED IN THE INVITATION AND BID FORM. THE ABSTRACT OF BIDS SHOWS THAT THE EIGHT BIDS RECEIVED WERE $1,030 (YOUR BID), $1,195, $1,200, $1,774, $1,863, $1,900, $2,375 AND $3,961. ALTHOUGH YOUR LOW BID WAS NOT OUT OF LINE WITH THE OTHER BIDS, IT IS ADMINISTRATIVELY REPORTED THAT SINCE THE BID WAS CONSIDERABLY LESS THAN THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK, YOU WERE REQUESTED BY THE OFFICER IN CHARGE OF CONSTRUCTION TO REEXAMINE AND VERIFY THE BID. LETTER OF OCTOBER 6, 1955, YOU ADVISED AS FOLLOWS:

"IN ACCORDANCE WITH YOUR REQUEST, I HAVE RECHECKED THE WORK TO BE DONE ON THE GARAGE AND QUONSET HUTS AT THE NAVAL RESERVE TRAINING CENTER, BETHLEHEM, PA. AND MY PREVIOUS BID OF $1,030.00 STILL STANDS.'

UPON RECEIPT OF YOUR BID CONFIRMATION, THE BID WAS ACCEPTED OCTOBER 10, 1955, AFTER WHICH, BY LETTER OF OCTOBER 12, 1955, THE ORIGINAL AND TWO COPIES OF THE ABOVE-CITED CONTRACT WERE FORWARDED TO YOU FOR YOUR ACKNOWLEDGMENT. THE CONTRACT WAS ACCEPTED BY YOU AND RETURNED ON OCTOBER 27, 1955. IT IS REPORTED THAT YOU COMMENCED THE WORK OF THE CONTRACT ON NOVEMBER 1, 1955, BUT PROMPTLY THEREAFTER ON THE SAME DATE, UPON BEING SPECIFICALLY INFORMED THAT TWO (2) COATS OF PAINT WERE REQUIRED INSTEAD OF ONE, YOU DISCONTINUED THE WORK ON THE GROUND THAT YOUR BID WAS BASED ON SPOT PAINTING AND APPLYING ONLY ONE FINISHING COAT OF PAINT. IN SUPPORT OF YOUR REFUSAL TO PROCEED WITH THE WORK IN COMPLIANCE WITH THE SPECIFICATIONS, YOU REFER TO A LETTER DATED AUGUST 16, 1955, AND FURNISH WHAT PURPORTS TO BE A COPY THEREOF WHEREIN YOU OFFERED TO CLEAN, PUTTY, CAULK, SPOT POINT AND APPLY ONE FINISHING COAT OF PAINT ON THE SAME BUILDINGS FOR $1,030. THIS OFFER ALLEGEDLY FOLLOWED A VERBAL REQUEST FOR YOU TO VISIT THE SITE AND SUBMIT YOUR OFFER ON THE WORK AS ALLEGEDLY WAS THEN OUTLINED AT THE SITE. YOU STATE THAT YOU ASSUMED THAT THE SPECIFICATIONS IN INVITATION TO BID OF SEPTEMBER 1, 1955, WERE THE SAME AS THOSE COVERING A SINGLE FINISHING COAT PAINT JOB ON THE SAME BUILDINGS FOR WHICH YOU SUBMITTED A QUOTATION ON AUGUST 16, 1955, APPROXIMATELY ONE MONTH EARLIER, AND YOU HAVE REFUSED TO RESUME THE WORK "UNTIL SUCH TIME AS A NEW PRICE IS SUBMITTED AND ACCEPTED.'

WHILE YOU HAVE NOT STATED WHAT PRICE CHANGE IS DESIRED, IN THAT CONNECTION YOUR ATTENTION IS INVITED TO THE FACT THAT THE NEXT LOWEST BID WOULD HAVE BEEN ACCEPTED IN THE EVENT THAT YOUR BID HAD NOT BEEN CONFIRMED OR IF YOU HAD SUBMITTED NO BID AT ALL. THEREFORE, EVEN IF RELIEF WERE AUTHORIZED, IT WOULD IN NO EVENT BE IN EXCESS OF THE DIFFERENCE BETWEEN YOUR BID PRICE OF $1,030 AND THE NEXT LOWEST BID OF $1,195 OR $165.

PARAGRAPH 2-03 OF CONTRACT SPECIFICATIONS NO. 48594 (SF) PROVIDES AS FOLLOWS:

"PAINTING SCHEDULE. THE FOLLOWING COATS SHALL BE APPLIED TO SURFACES AS DESIGNATED USING PAINT CONFORMING TO THE REQUIREMENTS OF THE SPECIFICATIONS AS LISTED: CHART "SURFACES PRIME COAT

INTERMEDIATE COAT FINISH COAT CORRUGATED METAL TT-P-86A, SAME AS FINISH COAT TT-A-468A,AMENDED, (QUONSET HUTS) AMENDED (EXCEPT TINTED)TYPE II, CLASS C WOODWORK (DOORS, TT-P-25A, TT-P 102,AMENDED TT-P-71B WINDOWS AND TRIM) AMENDED

(DARK CHROME-

(WHITE) (GRAY) GREEN)"

IT IS DIFFICULT TO UNDERSTAND HOW ANYONE WHO TOOK THE TROUBLE TO READ THE CONTRACT SPECIFICATIONS COULD FAIL TO UNDERSTAND THAT TWO COATS OF PAINT BESIDES THE PRIME COAT, OR SPOT PAINTING, WERE REQUIRED. WHATEVER TRANSPIRED SEVERAL WEEKS EARLIER, ENDING WITH YOUR OFFER OF AUGUST 16, 1955, WOULD APPEAR TO BE SEPARATE AND DISTINCT FROM THE TRANSACTION BEGINNING SEPTEMBER 1, 1955, AT WHICH TIME WRITTEN BIDS WERE SOLICITED FOR THE PAINTING WORK CALLED FOR UNDER SPECIFICATIONS NO. 48594/SF).

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND LEFT NO DOUBT AS TO THE REQUIREMENTS OF THE GOVERNMENT. IF YOU FAILED TO READ THE SPECIFICATIONS AND RELIED ON THE ASSUMPTION THAT THE PAINT JOB FOR WHICH YOU WERE BIDDING WAS THE SAME AS THAT FOR WHICH YOU ALLEGEDLY BID BY LETTER OF AUGUST 16, 1955, THE ERROR WAS DUE SOLELY TO WANT OF PROPER CARE ON YOUR PART AND WAS IN NO MANNER INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. CONSEQUENTLY, ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL, NOT MUTUAL, AND THEREFORE DOES NOT ENTITLE YOU TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. AFTER REQUESTING AND RECEIVING A VERIFICATION OF YOUR BID THERE WAS NO COURSE FOR THE CONTRACTING OFFICER TO FOLLOW OTHER THAN TO AWARD YOU THE CONTRACT. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. 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, WE FIND NO BASIS ON THE PRESENT RECORD FOR AUTHORIZING A RELEASE FROM YOUR OBLIGATION TO FURNISH THE PAINTING WORK STRICTLY IN ACCORDANCE WITH THE APPLICABLE SPECIFICATIONS AT THE PRICE FIXED THEREFOR IN THE CONTRACT.