B-129111, SEP. 13, 1956

B-129111: Sep 13, 1956

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO A LETTER DATED AUGUST 30. V3044P-161 WAS AWARDED. THE THREE OTHER BIDS ON THE WORK WERE IN THE AMOUNTS OF $2. WAS ACCEPTED ON JUNE 19. THAT IT WAS AWARE. THAT THIS WORK HAD TO BE DONE SINCE THIS FACT WAS POINTED OUT TO ONE OF ITS REPRESENTATIVES. THERE WAS NO ERROR APPARENT ON THE FACE OF THE CORPORATION'S BID AND IT APPEARS THAT THE CONTRACTING OFFICER DID NOT CONSIDER THE BID OUT OF LINE WITH THE OTHER BIDS RECEIVED. THE DIFFERENCE BETWEEN THE CORPORATION'S BID ON THE JANITORIAL SERVICES AND THE OTHER BIDS RECEIVED THEREON IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF ANY ERROR IN THE BID.

B-129111, SEP. 13, 1956

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED AUGUST 30, 1956, WITH ENCLOSURES, FROM THE DEPUTY ADMINISTRATOR, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR THE COAST BUILDING MAINTENANCE COMPANY, INC., LOS ANGELES, CALIFORNIA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. V3044P-161 WAS AWARDED.

THE VETERANS ADMINISTRATION REGIONAL OFFICE, LOS ANGELES, CALIFORNIA, BY INVITATION NO. 57-6, REQUESTED BIDS--- TO BE OPENED JUNE 18, 1956--- FOR FURNISHING THE JANITORIAL SERVICES DESCRIBED IN THE INVITATION DURING THE PERIOD FROM JULY 1, 1956, TO JUNE 30, 1957, INCLUSIVE, UNLESS SOONER TERMINATED UNDER THE PROVISIONS OF THE CONTRACT. IN RESPONSE THE COAST BUILDING MAINTENANCE COMPANY, INC., SUBMITTED A BID DATED JUNE 15, 1956, OFFERING TO PERFORM THE SERVICES FOR THE AMOUNT OF $1,550 PER MONTH. THE THREE OTHER BIDS ON THE WORK WERE IN THE AMOUNTS OF $2,100, $2,350, AND $2,915. THE BID OF THE COAST BUILDING MAINTENANCE COMPANY, INC., WAS ACCEPTED ON JUNE 19, 1956.

BY LETTERS DATED JUNE 27 AND 29, 1956, THE COAST BUILDING MAINTENANCE COMPANY, INC., ADVISED THAT IT HAD FAILED TO INCLUDE IN ITS BID PRICE THE COST OF DUSTING ALL LIGHTS AND PIPES QUARTERLY; THAT IT WAS AWARE, PRIOR TO SUBMITTING ITS BID, THAT THIS WORK HAD TO BE DONE SINCE THIS FACT WAS POINTED OUT TO ONE OF ITS REPRESENTATIVES; AND THAT IT HAD ALSO FAILED TO CONSIDER THE INCREASED LABOR EXPENSE RESULTING FROM ADDITIONAL PERSONNEL NOW OCCUPYING THE BUILDING AS COMPARED WITH THE PERIOD OF ITS LAST CONTRACT FOR SUCH SERVICES. THE CORPORATION REQUESTED THAT THE CONTRACT PRICE BE INCREASED BY $325 TO COVER THE COST OF THE OMITTED SERVICES. SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION, A COST BREAKDOWN OF THE AMOUNT OF THE INCREASE REQUESTED BY IT.

THERE WAS NO ERROR APPARENT ON THE FACE OF THE CORPORATION'S BID AND IT APPEARS THAT THE CONTRACTING OFFICER DID NOT CONSIDER THE BID OUT OF LINE WITH THE OTHER BIDS RECEIVED. THE DIFFERENCE BETWEEN THE CORPORATION'S BID ON THE JANITORIAL SERVICES AND THE OTHER BIDS RECEIVED THEREON IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF ANY ERROR IN THE BID. ALTHOUGH, AFTER AWARD, THE CORPORATION FURNISHED ITS WORKSHEETS AND OTHER DATA IN SUPPORT OF ITS ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE CORPORATION IN COMPUTING ITS BID PRICE. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER UNTIL AFTER AWARD--- AND, THEREFORE, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE O., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES. 259 U.S. 75.

THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AS TO THE WORK TO BE PERFORMED. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS ALLEGED, THE CORPORATION UNDERESTIMATED THE COST OF PERFORMING THE WORK IN FAILING TO TAKE INTO CONSIDERATION CERTAIN PARTS OF THE WORK, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 83 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 652; AND 26 ID. 415.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. V3044 P-164, AS REQUESTED BY THE COAST BUILDING MAINTENANCE COMPANY, INC. ..END :