B-129582, OCT. 30, 1956

B-129582: Oct 30, 1956

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UNITED STATES ATOMIC ENERGY COMMISSION: REFERENCE IS MADE TO A LETTER OF OCTOBER 18. THE CONTRACTOR WAS LOW BIDDER ON INVITATION NO. 125 EIGHT OTHERS WERE RECEIVED. AT THE TIME BIDS WERE OPENED MR. MOSSMAN ADVISED THAT AN ERROR WAS SUSPECTED. ON THE NEXT DAY (APRIL 11) WORK SHEETS WERE PRESENTED TO SHOW THAT SUPPLIERS' BIDS FOR SUBITEMS 23 THROUGH 28 OF HIS COMPUTATIONS HAD BEEN INCORRECTLY ADDED TO TOTAL $109. A CORRECT ADDITION OF THE SUBITEMS IN THE GROUP WOULD HAVE BEEN $119. SUPPLIERS' BIDS CONFIRMING THE AMOUNTS OF SUBITEMS WERE FURNISHED. MOSSMAN ALLEGES THAT BUT FOR THE ERROR HIS BID WOULD HAVE BEEN INCREASED BY $10. THE COPIES OF ORIGINAL WORKSHEETS AND OF THE SUPPLIERS' QUOTATIONS ATTACHED TO THE FILE FULLY SUPPORT THE ADMINISTRATIVE CONCLUSION THAT A BONA FIDE MISTAKE WAS MADE.

B-129582, OCT. 30, 1956

TO HONORABLE LEWIS L. STRAUSS, UNITED STATES ATOMIC ENERGY COMMISSION:

REFERENCE IS MADE TO A LETTER OF OCTOBER 18, 1956, FILE NO. EAC CGC, FROM THE DEPUTY GENERAL MANAGER, REQUESTING A DECISION AS TO THE PROPRIETY OF ALLOWING AN INCREASE IN PRICE UNDER CONTRACT NO. AT (04 3/-97, DATED APRIL 17, 1956, WITH RICHARD H. MOSSMAN, DOING BUSINESS AS HAROLD'S GENERAL CONTRACTOR.

THE CONTRACTOR WAS LOW BIDDER ON INVITATION NO. SAN-300-2-97, DATED MARCH 16, 1956, COVERING CONSTRUCTION OF THREE BUILDINGS AND ASSOCIATED SITE FACILITIES IN SAN JOAQUIN COUNTY, CALIFORNIA. IN ADDITION TO HIS BID OF $237,125 EIGHT OTHERS WERE RECEIVED, RANGING FROM $253,367 TO $334,394. AT THE TIME BIDS WERE OPENED MR. MOSSMAN ADVISED THAT AN ERROR WAS SUSPECTED, SINCE THE DISPARITY BETWEEN HIS BID AND THE NEXT LOWEST ONE APPEARED TOO GREAT. IN THE AFTERNOON OF THE SAME DAY HE ADVISED THAT AN ARITHMETICAL ERROR OF $10,000 IN BID COMPUTATIONS HAD BEEN FOUND, AND ON THE NEXT DAY (APRIL 11) WORK SHEETS WERE PRESENTED TO SHOW THAT SUPPLIERS' BIDS FOR SUBITEMS 23 THROUGH 28 OF HIS COMPUTATIONS HAD BEEN INCORRECTLY ADDED TO TOTAL $109,930, ROUNDED TO $110,000, AND THAT $110,000 HAD BEEN USED IN ARRIVING AT THE AMOUNT QUOTED. A CORRECT ADDITION OF THE SUBITEMS IN THE GROUP WOULD HAVE BEEN $119,980. SUPPLIERS' BIDS CONFIRMING THE AMOUNTS OF SUBITEMS WERE FURNISHED. MR. MOSSMAN ALLEGES THAT BUT FOR THE ERROR HIS BID WOULD HAVE BEEN INCREASED BY $10,000 TO A TOTAL OF $247,125. THE COPIES OF ORIGINAL WORKSHEETS AND OF THE SUPPLIERS' QUOTATIONS ATTACHED TO THE FILE FULLY SUPPORT THE ADMINISTRATIVE CONCLUSION THAT A BONA FIDE MISTAKE WAS MADE, AND ESTABLISH CONCLUSIVELY ITS EXTENT TO BE AS ALLEGED.

AWARD WAS MADE ON THE BASIS OF THE $237,125 QUOTATION AND THE FOLLOWING STIPULATION WAS INCLUDED IN THE CONTRACT:

"THIS CONTRACT IS EXECUTED WITH THE UNDERSTANDING THAT THE PRICE STATED HEREIN IS SUBJECT TO CORRECTION IF YOUR ALLEGED MISTAKE IN ARRIVING AT SUCH PRICE IS SUBSTANTIATED AND SUCH CORRECTION IS AUTHORIZED BY HIGHER AUTHORITY.'

THE MATTER APPEARS TO FALL WITHIN THE EXCEPTION TO THE BASIC RULE THAT BIDS MAY NOT BE CHANGED AFTER THE TIME FIXED FOR OPENING. CF. 31 COMP. GEN. 183. SINCE THE COMMISSION WAS ON NOTICE OF PROBABLE ERROR PRIOR TO ACCEPTANCE, AND THE ACCEPTANCE WAS CONDITIONED AS STATED, AND SINCE AN ACTUAL MISTAKE AND ITS PRECISE EXTENT HAVE BEEN PROVED AND THE INTENDED QUOTATION REMAINS THE LOWEST RECEIVED, WE PERCEIVE NO OBJECTION TO AMENDMENT OF THE CONTRACT TO PROVIDE FOR PAYMENT TO MR. MOSSMAN ON THE BASIS OF HIS CORRECTED BID OF THE ADDITIONAL AMOUNT CLAIMED.