B-135089, FEB. 14, 1958

B-135089: Feb 14, 1958

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AT (45-1/-1103 IS BASED. IT IS STATED THAT THE CLAIM WAS ADMINISTRATIVELY DISALLOWED BUT THE CLAIMANT REQUESTS THE CASE BE REVIEWED BY US. 100 WHICH PRIOR TO BID OPENING WAS MODIFIED TO $1. THE GOVERNMENT'S COST ESTIMATE WAS $1. THE CONTRACT WAS AWARDED TO MORRISON-KNUDSEN. THE OMISSION ALLEGEDLY WAS NOT NOTICED BY THE CONTRACTOR UNTIL AFTER AWARD WHEN IT DISCOVERED THAT A SUBCONTRACTOR'S PROPOSAL DID NOT INCLUDE THE WORK FOR WHICH CLAIM IS NOW MADE. THE CONTRACTOR ASSERTS THAT CLAIM NOW IS MADE ONLY BECAUSE THE ENTIRE JOB HAS RESULTED IN CONSIDERABLE LOSS. IT IS REPRESENTED THAT THE ERROR ORIGINATED WITH AN INTENDED SUBCONTRACTOR. IT IS CLEAR THAT THE ERROR WAS PERPETUATED BY THE CONTRACTOR AND THE GOVERNMENT WAS IN NO WAY A PARTY TO OR CONTRIBUTED TO THE ERROR.

B-135089, FEB. 14, 1958

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

BY LETTER DATED JANUARY 30, 1958, WITH ENCLOSURES, THE DEPUTY GENERAL MANAGER, UNITED STATES ATOMIC ENERGY COMMISSION, REFERRED TO OUR OFFICE THE CLAIM OF MORRISON-KNUDSEN COMPANY, INC., IN THE AMOUNT OF $127,483.55 FOR AN ALLEGED ERROR MADE IN ITS BID ON WHICH CONTRACT NO. AT (45-1/-1103 IS BASED. IT IS STATED THAT THE CLAIM WAS ADMINISTRATIVELY DISALLOWED BUT THE CLAIMANT REQUESTS THE CASE BE REVIEWED BY US.

IT APPEARS THAT IN RESPONSE TO AN INVITATION DATED OCTOBER 28, 1955, WHICH SOLICITED BIDS FOR CERTAIN PUMPING PLANT AND OFFICE ADDITIONS AND VENT ROOMS MODIFICATIONS, THE CONTRACTOR BID A TOTAL PRICE OF $1,999,100 WHICH PRIOR TO BID OPENING WAS MODIFIED TO $1,869,580. THE OTHER FOUR BIDS RECEIVED RANGED FROM $2,013,189 TO $2,176,055. THE GOVERNMENT'S COST ESTIMATE WAS $1,903,200. ON NOVEMBER 25, 1955, THE CONTRACT WAS AWARDED TO MORRISON-KNUDSEN.

BY LETTER TO THE ATOMIC ENERGY COMMISSION DATED NOVEMBER 12, 1957, THE CONTRACTOR REQUESTED ADDITIONAL COMPENSATION IN THE AMOUNT OF $127,483.55 TO COVER THE ACTUAL COST OF WORK WHICH IT OMITTED FROM ITS BID PRICE. THE OMISSION ALLEGEDLY WAS NOT NOTICED BY THE CONTRACTOR UNTIL AFTER AWARD WHEN IT DISCOVERED THAT A SUBCONTRACTOR'S PROPOSAL DID NOT INCLUDE THE WORK FOR WHICH CLAIM IS NOW MADE. SUBSEQUENTLY, IT DECIDED TO PERFORM WITH ITS OWN FORCES. THE CONTRACTOR ASSERTS THAT CLAIM NOW IS MADE ONLY BECAUSE THE ENTIRE JOB HAS RESULTED IN CONSIDERABLE LOSS.

IT IS REPRESENTED THAT THE ERROR ORIGINATED WITH AN INTENDED SUBCONTRACTOR. HOWEVER, IT IS CLEAR THAT THE ERROR WAS PERPETUATED BY THE CONTRACTOR AND THE GOVERNMENT WAS IN NO WAY A PARTY TO OR CONTRIBUTED TO THE ERROR, SINCE ITS REQUIREMENTS WERE CLEAR AND UNAMBIGUOUS AND THE SUBCONTRACTOR'S OMISSIONS WERE WITHOUT THE KNOWLEDGE OF THE CONTRACTING OFFICER.

THE BID HERE INVOLVED WAS IN LINE WITH THE OTHER BIDS RECEIVED AND THE GOVERNMENT'S ESTIMATED PRICE, AND SINCE THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE THAT THE PRICE WAS NOT INTENDED TO BE AS QUOTED, OBVIOUSLY THE CONTRACTING OFFICER WAS NOT ON NOTICE OF THE PROBABILITY OF ANY ERROR IN THE BID.

IN RESPONDING TO AN INVITATION FOR BIDS, IT IS THE RESPONSIBILITY OF THE BIDDER ALONE TO DETERMINE THE VARIOUS ELEMENTS OF ITS COSTS IN ARRIVING AT ITS BID PRICE, AND THE GOVERNMENT IS NOT LIABLE FOR ANY LOSS WHICH RESULTS FROM AN IMPROVIDENT QUOTATION. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. HERE, THE MISTAKE WAS DUE TO THE BIDDER'S CARELESSNESS OR OVERSIGHT. IT WAS NOT INDUCED BY THE GOVERNMENT, AND THERE WAS NOTHING TO MAKE THE CONTRACTING OFFICER SUSPECT THAT THE BID WAS NOT MADE AS INTENDED. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61. THEREFORE, THE ACCEPTANCE OF THE BID IN GOOD FAITH CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE MISTAKE BEING UNILATERAL--- NOT MUTUAL--- THE BIDDER IS NOT ENTITLED TO ANY REDRESS FOR THE CONSEQUENCES OF ITS ERROR. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

FOR THE ABOVE REASONS, THERE IS NO LEGAL BASIS TO GRANT ANY RELIEF IN THIS MATTER.