B-131705, MAY 9, 1957

B-131705, MAY 9, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED APRIL 30, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), WHO REQUESTS A DECISION REGARDING AN ERROR VALLEY CONSTRUCTION CO., COLUMBUS, GEORGIA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA 09-038-AIII-989 IS BASED.

INVITATION NR. 09-038-57-82, DATED FEBRUARY 8, 1957, SOLICITED BIDS TO RAISE REPAIR AND PAINT COMMUNICATION SYSTEM MANHOLES AT FORT BENNING, GEORGIA. PART IV OF THE INVITATION SPECIFICATIONS PROVIDE:

"TECHNICAL PROVISIONS"

"TP-1 SCOPE: THE WORK COVERED BY THIS CONTRACT

CONSISTS OF RAISING THE RINGS OF FORTY-THREE (43)

MANHOLES TO GROUND LEVEL AND TO CLEAN AND PAINT

158 MANHOLES WITH ONE (1) COAT OF WATER-PROOFING

PAINT.'

APPARENTLY, WHEN THE VALLEY CONSTRUCTION CO. REPRESENTATIVE CALLED FOR A COPY OF THE BID INVITATION, HE PICKED UP OR WAS GIVEN INADVERTENTLY A COPY OF A SHEET ENTITLED "SUPPORTING DATA," WHICH LISTS FORTY-THREE MANHOLES AND THE RISE NECESSARY TO BRING THEM ABOVE GROUND LEVEL. SIMILAR DATA IS CONTAINED WITHIN PART IV OF THE SPECIFICATIONS, ABOVE-QUOTED, WHICH ALSO ENUMERATES THE MANHOLES TO BE CLEANED AND PAINTED. THE "SUPPORTING DATA" SHEET MAKES NO REFERENCE TO THE CLEANING AND PAINTING OF THE MANHOLES.

FOR THE COMPLETE JOB, VALLEY CONSTRUCTION CO. BID THE LUMP SUM OF $2,750. THE OTHER TWO BIDS WERE $5,739 AND $6,880. THE GOVERNMENT'S ESTIMATE FOR THE WORK WAS $3,025. BECAUSE OF THE VARIANCE BETWEEN THE LOW BID AND THE NEXT LOW BID, VALLEY CONSTRUCTION CO., WAS CALLED TO VERIFY THEIR BID AND THEY STATED THAT IT WAS CORRECT. SEVERAL DAYS LATER, A REPRESENTATIVE OF THE FIRM AGAIN ASSURED THE CONTRACTING OFFICER THAT THE BID WAS CORRECT. ON MARCH 14, 1957, THE CONTRACT WAS AWARDED TO VALLEY CONSTRUCTION CO. BY LETTER DATED MARCH 18, 1957, WITH WORKSHEET ATTACHED, THE CONTRACTOR ALLEGED ERROR IN THAT ITS BID WAS BASED ONLY ON THE MANHOLES ENUMERATED IN THE ,SUPPORTING DATA" SHEET.

IN ITS LETTER ALLEGING ERROR, THE CONTRACTOR STATES:

"IN THE PREPARATION OF BIDS ON ALL PROJECTS WHICH WE FIGURE, THE "STATEMENT OF WORK" SECTION OF SPECIFICATIONS IS OUR MAIN GUIDE, AND WE FEEL THAT HAD THE INFORMATION AS CONTAINED IN PARAGRAPH TP-1 "SCOPE" BEEN LISTED IN THE "STATEMENT OF WORK,"--- PART I OF SPECIFICATIONS THAT ERROR DEFINITELY WOULD NOT HAVE BEEN MADE.'

IMPLICIT IN THIS STATEMENT IS THE SUGGESTION THAT THE BIDDER FAILED TO READ THE ENTIRE INVITATION BEFORE SUBMITTING ITS BID. HAD THE BIDDER CAREFULLY READ THE INVITATION, THE SPECIFICATIONS WOULD HAVE BEEN CLEAR, NOTWITHSTANDING THE BIDDER WAS IN POSSESSION OF THE ,SUPPORTING DATA" SHEET WHICH IS MERELY REPETITIOUS OF SOME OF PART IV OF THE INVITATION. THUS, IT IS CLEAR THAT THE MISTAKE, IF ANY, IS DUE SOLELY TO THE BIDDER'S OVERSIGHT, CARELESSNESS OR NEGLIGENCE. IN SUCH CIRCUMSTANCES, THE LAW IS WELL SETTLED THAT THE BIDDER IS NOT ENTITLED TO RELIEF.

WHILE THE PRICE VARIANCE MADE THE CONTRACTING OFFICER SUSPECT ERROR, THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THE NATURE OF THE MISTAKE, AND BY REQUESTING VERIFICATION, THE CONTRACTING OFFICER DID ALL THAT COULD BE REASONABLY EXPECTED OF HIM. THE ACCEPTANCE OF THE BID AFTER VERIFICATION BY THE BIDDER CONSUMMATED A VALID AND BINDING CONTRACT. SEE 18 COMP. GEN. 942 AND 27 ID. 17.

IN THE CIRCUMSTANCES, THE CONTRACTOR IS NOT ENTITLED TO ANY REDRESS FOR ITS UNILATERAL MISTAKE AND THE GOVERNMENT IS ENTITLED TO REQUIRE PERFORMANCE.

ONE SET OF THE ENCLOSURES TRANSMITTED WITH THE LETTER OF THE ASSISTANT SECRETARY IS RETURNED HEREWITH.