B-134591, DEC. 23, 1957

B-134591: Dec 23, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF DECEMBER 3. WAS ACCEPTED BY THE CONTRACTING OFFICER WITHOUT NOTICE OF ERROR ON JUNE 28. 801.48 IN THE AMOUNT HE WOULD HAVE BID BUT FOR THE ERROR. NO WORKSHEETS OR OTHER PAPERS WERE AVAILABLE FOR SUBMISSION TO SUPPORT THE FOREGOING ALLEGATION ALTHOUGH. AN EXAMINATION OF THE BREAKDOWN OF THE INDIVIDUAL ITEMS COMPRISING THE BID FURNISHED BY THE CONTRACTOR TENDS TO SUPPORT THE CONTENTION THAT AN ERROR WAS MADE IN THE MANNER DESCRIBED. THE BID WAS REGULAR ON ITS FACE AND ACCEPTED IN GOOD FAITH. THE PRICES QUOTED WERE NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED AND THEREFORE THERE IS NO JUSTIFICATION FOR CHARGING THE CONTRACTING OFFICER WITH CONSTRUCTIVE KNOWLEDGE OF ERROR.

B-134591, DEC. 23, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF DECEMBER 3, 1957, AND ENCLOSURE, FROM THE DEPUTY ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), TRANSMITTING FOR OUR DECISION THE REQUEST OF ADAM FRITZ, BARRINGTON, ILLINOIS, FOR AN INCREASE IN THE STIPULATED PRICE UNDER CONTRACT NO. DA 11-032-ENG 5238, DATED JUNE 28, 1957.

THE RECORD DISCLOSES THAT IN RESPONSE TO INVITATION DATED MAY 22, 1957, MR. FRITZ SUBMITTED A BID TO FURNISH ALL LABOR, EQUIPMENT AND MATERIAL TO LANDSCAPE CERTAIN SPECIFIED AAA SITES IN ILLINOIS, INDIANA, AND WISCONSIN. THE BID, BEING THE LOWEST PROPOSAL RECEIVED, WAS ACCEPTED BY THE CONTRACTING OFFICER WITHOUT NOTICE OF ERROR ON JUNE 28, 1957. LETTERS DATED SEPTEMBER 10, AND OCTOBER 8, 1957, MR. FRITZ ALLEGED THAT HE HAD MADE A MISTAKE IN THE COMPUTATION OF THE AMOUNT QUOTED BY INADVERTENTLY SUBTRACTING RATHER THAN ADDING A COST ITEM RESULTING IN A DECREASE OF $1,801.48 IN THE AMOUNT HE WOULD HAVE BID BUT FOR THE ERROR. NO WORKSHEETS OR OTHER PAPERS WERE AVAILABLE FOR SUBMISSION TO SUPPORT THE FOREGOING ALLEGATION ALTHOUGH, AS STATED BY THE DIVISION ENGINEER IN HIS 1ST INDORSEMENT DATED OCTOBER 24, 1957, AN EXAMINATION OF THE BREAKDOWN OF THE INDIVIDUAL ITEMS COMPRISING THE BID FURNISHED BY THE CONTRACTOR TENDS TO SUPPORT THE CONTENTION THAT AN ERROR WAS MADE IN THE MANNER DESCRIBED.

HOWEVER, THE BID WAS REGULAR ON ITS FACE AND ACCEPTED IN GOOD FAITH. ALSO, THE PRICES QUOTED WERE NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED AND THEREFORE THERE IS NO JUSTIFICATION FOR CHARGING THE CONTRACTING OFFICER WITH CONSTRUCTIVE KNOWLEDGE OF ERROR. IN FACT, IT HAS BEEN ADMINISTRATIVELY REPORTED THAT WIDE VARIATIONS IN QUOTATIONS FOR LANDSCAPING ARE "NORMALLY ENCOUNTERED" AND THEREFORE THE CONTRACTING OFFICER DID NOT SUSPECT AN ERROR IN THE BID OF MR. FRITZ AND DID NOT REQUEST VERIFICATION. UNDER THOSE CIRCUMSTANCES A VALID AND BINDING CONTRACT WAS CREATED WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE COURTS HAVE HELD REPEATEDLY THAT WHERE, AS HERE, A MISTAKE IS MADE AS A RESULT OF NEGLIGENCE OR FAILURE TO EXERCISE THAT DEGREE OF DILIGENCE WHICH MAY FAIRLY BE EXPECTED OF A REASONABLE PERSON NEITHER LAW NOR EQUITY WILL GRANT RELIEF.

ACCORDINGLY, IN VIEW OF THE FACTS OF RECORD AND APPLICABLE LAW THERE IS NO LEGAL BASIS UPON WHICH WE MAY AUTHORIZE MODIFICATION OF THE SUBJECT CONTRACT AS REQUESTED BY THE CONTRACTOR.