B-129362, OCT. 12, 1956

B-129362: Oct 12, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26. TO HAVE BEEN MADE IN HIS BID ON WHICH CONTRACT NO. DA-44-035 AII-227 WAS AWARDED. HUNGERFORD REQUESTING INFORMATION AS TO THE NUMBER OF BUILDINGS ON WHICH HIS BID WAS BASED. HUNGERFORD WAS ACCEPTED ON JUNE 29. FOUR SHEETS OF A LEGAL PAD WERE USED AND THAT AS EACH SHEET WAS FILLED. IT WAS SLIPPED INTO THE BODY OF THE PAD AND A NEW SHEET STARTED. ONE OF THE SHEETS WAS LEFT IN THE BODY OF THE PAD AND WAS NOT TAKEN INTO CONSIDERATION IN PRICING THE JOB. THAT THE OMITTED SHEET WAS DISCOVERED WHEN THE LEGAL PAD WAS USED AGAIN FOR COMPUTING ANOTHER JOB. 146 WAS BASED AND THE ESTIMATE SHEET WHICH WAS OVERLOOKED WHILE PREPARING THE SUMMARY ESTIMATE SHEET.

B-129362, OCT. 12, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 26, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY MR. J. C. HUNGERFORD, RICHMOND, VIRGINIA, TO HAVE BEEN MADE IN HIS BID ON WHICH CONTRACT NO. DA-44-035 AII-227 WAS AWARDED.

THE PURCHASING AND CONTRACTING BRANCH, CAMP A. P. HILL, VIRGINIA, BY INVITATION NO. 44-035-16-56, REQUESTED BIDS--- TO BE OPENED AT 9:00 A.M. ON JUNE 29, 1956--- FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE EXTERIOR PAINTING OF 31 BUILDINGS, INCLUDING METAL ROOFS, AT THE CAMP. IN RESPONSE MR. J. C. HUNGERFORD SUBMITTED A BID DATED JUNE 27, 1956, OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $8,146. THE FOUR OTHER BIDS ON THE JOB RANGED FROM $9,850TO $17,820.

IN HIS REPORT DATED AUGUST 2, 1956, THE CONTRACTING OFFICER STATES THAT AT APPROXIMATELY 10:30 A.M. ON JUNE 29, 1956, THE DATE OF THE BID OPENING, HE MADE A PERSONAL TELEPHONE CALL TO MR. HUNGERFORD REQUESTING INFORMATION AS TO THE NUMBER OF BUILDINGS ON WHICH HIS BID WAS BASED; THAT MR. HUNGERFORD REPLIED HE HAD BID ON 31 BUILDINGS TO BE PAINTED AND THAT HE HAD INSPECTED THE BUILDINGS BEFORE COMPUTING HIS BID; AND THAT THE BID OF MR. HUNGERFORD WAS ACCEPTED ON JUNE 29, 1956. THE CONTRACTING OFFICER ALSO STATED THAT ON JULY 18, 1956, MR. HUNGERFORD VISITED HIS OFFICE ALLEGING THAT AN ERROR HAD BEEN MADE IN HIS BID IN THAT HE HAD FAILED TO INCLUDE ON THE SHEET SUMMARIZING THE VARIOUS ESTIMATE SHEETS, THE CHARGES FOR PAINTING 10 OF THE 31 BUILDINGS APPEARING ON ONE OF FOUR ESTIMATE SHEETS WHICH HE HAD PREPARED FROM HIS INSPECTION OF THE BUILDINGS.

BY CONFIRMING LETTERS DATED JULY 25 AND 26, 1956, MR. HUNGERFORD REQUESTED THAT THE CONTRACT PRICE OF THE JOB BE INCREASED BY $2,389.30 TO $10,535.30 TO COVER THE OMITTED PAINTING WORK. IN HIS LETTER OF JULY 26, 1956, MR. HUNGERFORD STATED THAT, PRIOR TO SUBMITTING HIS BID, HE VISITED THE JOB SITE TO MEASURE EACH OF THE BUILDINGS TO BE PAINTED; THAT DURING THE PROCESS OF MEASURING THESE BUILDINGS, FOUR SHEETS OF A LEGAL PAD WERE USED AND THAT AS EACH SHEET WAS FILLED, IT WAS SLIPPED INTO THE BODY OF THE PAD AND A NEW SHEET STARTED; THAT ON RETURN TO HIS OFFICE FOR THE PRICING OF THE WORK, ONE OF THE SHEETS WAS LEFT IN THE BODY OF THE PAD AND WAS NOT TAKEN INTO CONSIDERATION IN PRICING THE JOB; AND THAT THE OMITTED SHEET WAS DISCOVERED WHEN THE LEGAL PAD WAS USED AGAIN FOR COMPUTING ANOTHER JOB. IN SUPPORT OF HIS ALLEGATION OF ERROR, MR. HUNGERFORD SUBMITTED THE THREE ESTIMATE SHEETS ON WHICH HIS BID PRICE OF $8,146 WAS BASED AND THE ESTIMATE SHEET WHICH WAS OVERLOOKED WHILE PREPARING THE SUMMARY ESTIMATE SHEET. FROM THESE SHEETS IT APPEARS THAT ONLY THE MOST CURSORY CHECK WOULD HAVE BEEN REQUIRED TO SEE THAT THE THREE SHEETS USED DID NOT LIST 31 BUILDINGS.

THE PRIMARY QUESTION IS NOT WHETHER MR. HUNGERFORD MADE AN ERROR IN HIS BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER- DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163, WHEREIN IT WAS STATED BY THE COURT OF CLAIMS OF THE UNITED STATES AS FOLLOWS:

"* * * THE PARTIES ARE DEALING AT ARMS LENGTH AND BIDDERS ARE PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN PERFORM THE WORK SPECIFIED AT A REASONABLE PROFIT. IF THEY FAIL TO DO SO, AS PLAINTIFF DID IN THIS CASE, THE GOVERNMENT CANNOT FOR THAT REASON BE HELD FOR THE RESULTING LOSS.'

IT IS CLEAR THAT SUCH ERROR AS WAS MADE IN THE BID OF MR. HUNGERFORD WAS DUE SOLELY TO HIS OWN NEGLIGENCE OR OVERSIGHT--- AS ADMITTED BY HIM--- AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 56, 61, WHEREIN THE SUPREME COURT OF THE UNITED STATES SAID:

"MISTAKE, TO BE AVAILABLE IN EQUITY, MUST NOT HAVE ARISEN FROM NEGLIGENCE, WHERE THE MEANS OF KNOWLEDGE WERE EASILY ACCESSIBLE. THE PARTY COMPLAINING MUST HAVE EXERCISED AT LEAST THE DEGREE OF DILIGENCE "WHICH MAY BE FAIRLY EXPECTED FROM A REASONABLE PERSON.'"

ANY ERROR THAT WAS MADE IN THE BID OF MR. HUNGERFORD WAS UNILATERAL- - NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE HIM TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; AND THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 C.CLS. 699, CERTIORARI DENIED, 325 U.S. 866. ALSO, SEE 20 COMP. GEN. 652, AND 26 ID. 415.

AT THE TIME THE BIDS IN THIS CASE WERE OPENED, THERE WAS SOME DOUBT ON THE PART OF THE CONTRACTING OFFICER AS TO THE CORRECTNESS OF THE BID SUBMITTED BY MR. HUNGERFORD AND HE WAS REQUESTED BY TELEPHONE TO VERIFY HIS BID. AFTER AN UNEQUIVOCAL VERIFICATION OF THE BID, THE CONTRACTING OFFICER WAS JUSTIFIED IN AWARDING THE CONTRACT ON MR. HUNGERFORD'S BID AS THE LOWEST RECEIVED. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 89 N.J.L. 1, 97 A. 774; SHRIMPTON MFG. COMPANY V. BRIN, 59 TEX. CIV. APP. 352, 125 S.W. 942. THE FACT THAT MR. HUNGERFORD'S BID WAS NOT ACCEPTED UNTIL HE WAS OFFERED AN OPPORTUNITY TO, AND DID, VERIFY HIS BID PRICE, PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF MR. HUNGERFORD. SEE 27 COMP. GEN. 17. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF MR. HUNGERFORD'S BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD--- AND IN SUCH CIRCUMSTANCES CONSUMMATED A VALID 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, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. DA-44-035-AII-227.

THE PAPERS, WITH THE EXCEPTION OF THE ABSTRACT OF BIDS AND THE CONTRACTING OFFICER'S STATEMENT DATED AUGUST 2, 1956, ARE RETURNED.