B-130357, FEB. 27, 1957

B-130357: Feb 27, 1957

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LEO PLUMB: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8. WERE LISTED AS "APPROXIMATE" ONLY. FOR WHICH YOU WERE TO BE COMPENSATED UPON THE BASIS OF THE ACTUAL QUANTITIES OF WORK PERFORMED AND THE UNIT PRICES QUOTED BY YOU FOR EACH ITEM. AS WAS ESTIMATED ON THE BID FORM FOR AN APPROXIMATED QUANTITY OF 8. 296 FOR ITEM NO. 1 IS CLEARLY SET FORTH IN THE THIRD PARAGRAPH OF THE BIDDING SCHEDULE. WHICH READS: "THE QUANTITIES GIVEN IN THE FOLLOWING SCHEDULE ARE APPROXIMATIONS FOR COMPARING BIDS AND NO CLAIMS SHALL BE MADE AGAINST THE GOVERNMENT FOR DEFICIENCIES THEREIN. PAYMENT WILL BE MADE FOR THE ACTUAL AMOUNT OF WORK DONE AND WILL BE MADE ON THE BASIS OF THE UNIT PRICES QUOTED.'. IF PAYMENT WERE TO BE AUTHORIZED ON THE BASIS OF THE ESTIMATED QUANTITIES AS REQUESTED BY YOU.

B-130357, FEB. 27, 1957

TO MR. LEO PLUMB:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 8, 1957, REQUESTING RECONSIDERATION OF OFFICE SETTLEMENT DATED JANUARY 28, 1957, WHICH DISALLOWED YOUR CLAIM FOR $995.96, ALLEGED TO BE DUE FOR SERVICES RENDERED THE U.S. DEPARTMENT OF THE INTERIOR UNDER CONTRACT NO. 14-19 003-2605, DATED JUNE 12, 1956, COVERING THE WORK OF CONSTRUCTION OF TWO REINFORCED CONCRETE WATER CONTROL STRUCTURES, DITCH EXCAVATION, CULVERT INSTALLATION, AND RELATED WORK AT THE UPPER MISSISSIPPI RIVER WILDLIFE AND FISH REFUGE, NEAR WAPELLO, IOWA.

YOUR CLAIM CONSISTS OF TWO ITEMS, AS FOLLOWS:

TABLE

(1) DIFFERENCE BETWEEN ESTIMATED QUANTITY OF ITEM NO. 1 OF BIDDING SCHEDULE, 8,200 CU. YD., AND ACTUAL QUANTITY OF 7,143 CU. YD., OR 1,057 CU. YD. AT $0.28 $295.96

(2) DIFFERENCE BETWEEN TOTAL AMOUNT OF ITEM NO. 6 OF BIDDING SCHEDULE--- $1,788 AND AMOUNT COMPUTED ON BASIS OF ACTUAL QUANTITY--- 64 LIN. FT. AT UNIT PRICE OF $17, OR $1,088.

$700.00

TOTAL $995.96

AS TO THE LATTER ITEM YOU CONTEND THAT YOU MERELY ADDED AN ADDITIONAL $700 TO COVER UNFORESEEN DIFFICULTIES OR CIRCUMSTANCES APT TO BE ENCOUNTERED IN THE PERFORMANCE OF YOUR CONTRACT.

THE CONTRACT CONSISTS OF SIX SEPARATE ITEMS, OF AN ESTIMATED CONTRACT VALUE OF $14,146.80, BASED UPON THE APPROXIMATED QUANTITIES AND THE UNIT PRICES LISTED IN THE BID SCHEDULE. TWO OF THE ITEMS, NOS. 4 AND 5, COVERED SERVICES ON WHICH YOU QUOTED LUMP-SUM BID PRICES OF $6,274.20 AND $3,404.60, RESPECTIVELY. AS TO THE REMAINDER OF THE ITEMS, THE QUANTITIES OF EXCAVATION, AND APPURTENANT SERVICES, WERE LISTED AS "APPROXIMATE" ONLY, FOR WHICH YOU WERE TO BE COMPENSATED UPON THE BASIS OF THE ACTUAL QUANTITIES OF WORK PERFORMED AND THE UNIT PRICES QUOTED BY YOU FOR EACH ITEM.

WITH RESPECT TO ITEM NO. 1 OF THE BID SCHEDULE, COVERING MISCELLANEOUS EXCAVATION, AS TO WHICH YOU FILED A CLAIM FOR $295.96, THE RECORD ESTABLISHES THAT THE QUANTITIES OF MATERIALS ACTUALLY EXCAVATED UNDER SUCH ITEM CONSISTED OF 7,143 CUBIC YARDS WHICH, WHEN MULTIPLIED BY YOUR QUOTED UNIT PRICE OF $0.28 PER YARD, ENTITLED YOU TO PAYMENT IN THE SUM OF $2,000.04, INSTEAD OF THE APPROXIMATED AMOUNT OF $2,296, AS WAS ESTIMATED ON THE BID FORM FOR AN APPROXIMATED QUANTITY OF 8,200 CUBIC YARDS.

THE BASIS FOR THE GOVERNMENT'S ACTION IN HAVING DEDUCTED $295.96 FROM YOUR TOTAL ESTIMATED BID PRICE OF $2,296 FOR ITEM NO. 1 IS CLEARLY SET FORTH IN THE THIRD PARAGRAPH OF THE BIDDING SCHEDULE, WHICH READS:

"THE QUANTITIES GIVEN IN THE FOLLOWING SCHEDULE ARE APPROXIMATIONS FOR COMPARING BIDS AND NO CLAIMS SHALL BE MADE AGAINST THE GOVERNMENT FOR DEFICIENCIES THEREIN, ACTUAL OR RELATIVE. PAYMENT WILL BE MADE FOR THE ACTUAL AMOUNT OF WORK DONE AND WILL BE MADE ON THE BASIS OF THE UNIT PRICES QUOTED.'

IF PAYMENT WERE TO BE AUTHORIZED ON THE BASIS OF THE ESTIMATED QUANTITIES AS REQUESTED BY YOU, IT WOULD BE THE EQUIVALENT OF A MODIFICATION OF THE PLAIN TERMS OF THE CONTRACT TO THE PREJUDICE OF THE UNITED STATES WITHOUT ANY COMPENSATING BENEFIT, IN THE FORM OF CONSIDERATION, MOVING TO THE LATTER. OF COURSE, UNDER ESTABLISHED PRINCIPLES OF LAW, THIS CANNOT BE DONE. SEE VULCANITE PORTLAND CEMENT COMPANY V. UNITED STATES, 74 C.CLS. 692, 705; YALE AND TOWNE MANUFACTURING COMPANY V. UNITED STATES, 67 ID. 618, 625; J. J. PREIS AND COMPANY V. UNITED STATES, 58 ID. 81, 86.

AS TO ITEM NO. 6, CONCERNING WHICH YOU ALLEGE YOU ADDED $700 TO THE ESTIMATED TOTAL PRICE TO COVER POSSIBLE UNFORESEEN DIFFICULTIES IN PERFORMANCE OF THE CONTRACT WORK, IT APPEARS THAT THE CONTRACTING OFFICER DID NOT NOTICE THE ERROR IN YOUR EXTENDED TOTAL. HOWEVER, YOUR TOTAL BID PRICE WAS NOT SO DISPROPORTIONATE TO THOSE QUOTED BY THE OTHER BIDDERS AS NECESSARILY WOULD HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF AN ERROR IN YOUR BID. IN THE CIRCUMSTANCES, AND SINCE THE CONTRACT EXPRESSLY PROVIDED FOR REIMBURSEMENT TO YOU UPON THE BASIS OF THE QUANTITY OF WORK ACTUALLY PERFORMED UNDER ITEM NO. 6, MULTIPLIED BY THE UNIT PRICE APPLICABLE TO THAT PARTICULAR ITEM, THERE WAS NO SOUND REASON FOR QUESTIONING THE CORRECTNESS OF THE UNIT PRICE QUOTED BY YOU. WHATEVER MIGHT HAVE BEEN YOUR INTENTION IN HAVING INCREASED THE TOTAL PRICE OF THE ITEM BY $700, MOST CERTAINLY SUCH INTENTION WAS NOT COMMUNICATED BY YOU TO THE GOVERNMENT CONTRACTING OFFICER PRIOR TO THE AWARD, AND WHEN HE ACCEPTED YOUR BID WITH THE EXPRESS UNDERSTANDING THAT YOU WOULD BE ENTITLED TO PAYMENT ON AN ACTUAL QUANTITY AND QUOTED UNIT PRICE BASIS, THERE RESULTED A VALID AND BINDING CONTRACT WHICH OBLIGATED YOU TO PERFORM STRICTLY IN ACCORDANCE WITH ITS TERMS. MISTAKE, TO BE REMEDIAL AT LAW, MUST BE SHOWN TO HAVE BEEN MUTUAL--- ONE MADE BY BOTH PARTIES TO THE CONTRACT. SEE HARRISON ENGINEERING AND CONSTRUCTION CORPORATION V. UNITED STATES, 107 C.CLS. 205, 208; 26 COMP. GEN. 899; 20 ID. 533. HERE, IF INDEED THERE WAS A MISTAKE, IT WAS MERELY UNILATERAL, AND HENCE DOES NOT ENTITLE YOU TO THE RELIEF REQUESTED.

ACCORDINGLY, UPON THE BASIS OF THE FACTS IN THE CASE, AND THE LAW FOUND TO BE APPLICABLE THERETO, THE SETTLEMENT OF JANUARY 28, 1957, IS SUSTAINED.