B-134166, NOV. 27, 1957

B-134166, NOV. 27, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 17, 1957, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY FOR LOGISTICS, REQUESTING OUR DECISION AS TO THE GIULI CONSTRUCTION COMPANY'S REQUEST FOR AN INCREASE IN PRICE UNDER CONTRACT NO. DA 94 604-PAC-269, DATED JUNE 6, 1957.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. SB-94-604-57-ENG-69, ISSUED BY THE DEPARTMENT OF THE ARMY, THE GIULI CONSTRUCTION COMPANY OFFERED TO FURNISH ALL LABOR, EQUIPMENT AND MATERIALS AND TO PERFORM ALL WORK FOR THE STRUCTURAL MODIFICATION OF BUILDING NO. 580, SCHOFIELD BARRACKS, HAWAII, IN STRICT ACCORDANCE WITH APPLICABLE SPECIFICATIONS, SCHEDULES, DRAWINGS, ETC., FOR A TOTAL PRICE OF $60,994. BY LETTER DATED JUNE 6, 1957, BUT APPARENTLY NOT MAILED UNTIL JUNE 8, THE GIULI CONSTRUCTION COMPANY WAS NOTIFIED THAT THE CONTRACT HAD BEEN AWARDED TO IT AND THAT IT WOULD PROCEED WITH THE WORK DESCRIBED THEREIN. BY INDORSEMENT DATED JUNE 10, 1957, THE COMPANY ACKNOWLEDGED RECEIPT OF THE SAID NOTICE OF AWARD,"SUBJECT TO THE CONDITIONS OF CONTRACTOR'S LETTER TO POST ENGINEER DATED JUNE 7, 1957, IN WHICH AN ERROR IN BID WAS CLAIMED * * *.' IN THE MEANTIME GIULI CONSTRUCTION COMPANY HAD CARRIED THE LETTER DATED JUNE 7, 1957, TO THE OFFICE OF THE CONTRACTING OFFICER, DEPARTMENT OF THE ARMY, WHEREIN THE COMPANY STATED THAT SINCE IT HAD NOT RECEIVED A BID FROM THE VENDORS OR SUBCONTRACTORS FOR BRASS ANGLES FOR WALL PANELS P-1, P 2 AND P- 3, IT HAD LEFT THIS ITEM OUT OF ITS BID, AND THAT ITS BID WAS IN ERROR BY THIS OMISSION IN THE AMOUNT OF $8,908. BY LETTER DATED JUNE 10, THE COMPANY WAS ADVISED BY THE CONTRACTING OFFICER THAT "INASMUCH AS YOUR LETTER OF 7 JUNE 1957 DOES NOT CONTAIN A STATEMENT OF ANY ACTION NOR ANY SUPPORTING EVIDENCE AS TO THE EXISTENCE OF AN OMISSION AND/OR ERROR, NO ACTION WILL BE TAKEN TO PRECLUDE THE AWARD AND ACCEPTANCE OF BID IN THE FORM ORIGINALLY SUBMITTED.' THEREAFTER THE GIULI CONSTRUCTION COMPANY, BY LETTER DATED JUNE 17, 1957, REQUESTED FAVORABLE CONSIDERATION OF ITS CLAIM IN THE FORM OF A MODIFICATION TO CONTRACT NO. DA 94-604-PAC-269, FOR $7,568--- NOT $8,908, AS CLAIMED IN THE COMPANY'S LETTER OF JUNE 7, 1957.

IN THE FIRST INSTANCE THERE APPEARS FOR CONSIDERATION HERE THE QUESTION AS TO WHETHER THE PRESENT RECORD FULLY SUPPORTS THE ALLEGATION OF ERROR AS MADE BY THE GIULI CONSTRUCTION COMPANY. IN THIS CONNECTION, WHILE IT VERY WELL MAY BE, AS CONTENDED BY THE COMPANY, THAT THE BRASS ANGLES FOR WALL PANELS P-1, P-2 AND P-3, WERE NOT INCLUDED IN THE QUOTATION FOR THE MILL WORK WHICH IT RECEIVED FROM ITS VENDOR OR SUBCONTRACTOR FOR THIS WORK, THE SUPPLIER'S QUOTATION IN THE RECORD FOR SUCH MILL WORK DOES NOT APPEAR TO FURNISH ANY JUSTIFICATION FOR THE CONTRACTOR'S ALLEGED ASSUMPTION THAT THEY WERE. THERE APPEARS TO BE CONSIDERABLE SUPPORT FOR THE OPINION OF THE CONTRACTING OFFICER THAT THE ALLEGED ERROR IS NOT A BONA FIDE ERROR ON WHICH RELIEF MAY BE GRANTED, SINCE THE RECORD DOES NOT CLEARLY ESTABLISH THE ERROR ALLEGED.

MOREOVER, EVEN IF THE ERROR WERE CONSIDERED TO BE UNEQUIVOCALLY ESTABLISHED, THE CONDITIONS ATTENDING THE ACCEPTANCE OF THE BID APPEAR TO PRECLUDE ANY RELIEF, UNDER THE PRINCIPLES STATED IN THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 C.CLS. 699, AND BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON COMPANY, INC., 133 F./2D) 399. WHILE THE ACKNOWLEDGMENT OF THE NOTICE OF AWARD WAS SIGNED BY THE CONTRACTOR SUBJECT TO ITS CLAIM OF ERROR, THE CONTRACTING OFFICER'S LETTER OF JUNE 10 WAS CLEAR AND UNEQUIVOCAL NOTICE THAT THE CLAIM OF ERROR WAS REJECTED. THE CITED CASES HOLD THAT UNDER SUCH CIRCUMSTANCES A CONTRACTOR CANNOT PROCEED WITH PERFORMANCE UNDER THE TERMS OF A CONTRACT AND THEN ATTEMPT TO REPUDIATE THE PROVISIONS OF THE CONTRACT FIXING THE PRICE.

ON THE PRESENT RECORD, OUR OFFICE WOULD NOT BE WARRANTED IN AUTHORIZING ANY MODIFICATION OF CONTRACT NO. DA-94-604-PAC-269.

THE PAPERS, WITH THE EXCEPTION OF THE UNDATED STATEMENT OF THE CONTRACTING OFFICER, ARE RETURNED HEREWITH.