B-141105, NOV. 10, 1959

B-141105, NOV. 10, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 22, 1959, FROM CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, DEPARTMENT OF THE ARMY, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR TOWNER LUMBER COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA-21-027-AV-919, DATED MARCH 30, 1959, IS BASED.

BY INVITATION NO. AV-21-027-59-26, DATED FEBRUARY 20, 1959, THE CENTRAL PROCUREMENT DIVISION, XIV U.S. ARMY CORPS (RESERVE), REQUESTED BIDS FOR INSTALLATION OF A NEW ROOF AND GUTTER ON BUILDINGS 3 AND 5 AT FORT LINCOLN, BISMARCK, NORTH DAKOTA. TOWNER LUMBER COMPANY'S BID OF $3,932 WAS THE ONLY BID RECEIVED. THE GOVERNMENT'S ESTIMATE WAS $4,808. NOTICE OF AWARD WAS MAILED TO THE COMPANY ON MARCH 30, 1959. INCLOSED WITH THE NOTICE OF AWARD WERE THE PREPARED CONTRACT FOR SIGNATURE, PERFORMANCE AND PAYMENT BONDS FORMS FOR COMPLETION, EXECUTION AND RETURN TO THE CONTRACTING OFFICER.

BY LETTER DATED APRIL 13, 1959, THE CONTRACTOR ADVISED THE CONTRACTING OFFICER THAT AN ERROR IN BID WAS MADE. THE CONTRACTOR STATED THAT HIS BID WAS BASED ON FURNISHING GALVANIZED METAL PRODUCTS FOR GUTTERS, FLASHING AND DOWNSPOUTS INSTEAD OF FURNISHING COPPER PRODUCTS AS PROVIDED IN THE SPECIFICATIONS AND DRAWINGS. THE CONTRACTOR REQUESTED WITHDRAWAL OF HIS BID AND RETURN OF THE BID DEPOSIT.

BY LETTER DATED APRIL 20, 1959, THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT THE NOTICE OF ALLEGED MISTAKE IN BID WAS RECEIVED AFTER A NOTICE OF AWARD WAS ISSUED AND THAT, THEREFORE, THE REMEDIES NORMALLY PROVIDED FOR MISTAKES IN BIDS ALLEGED PRIOR TO AN AWARD OF CONTRACT COULD NOT BE USED. THE CONTRACTOR WAS REQUESTED TO SIGN THE CONTRACT AND RETURN IT, TOGETHER WITH PERFORMANCE AND PAYMENT BONDS.

BY LETTER DATED APRIL 22, 1959, THE CONTRACTOR RETURNED THE SIGNED CONTRACT AND EXECUTED BONDS TO THE CONTRACTING OFFICER, STATING THAT HE EXECUTED THE CONTRACT WITH RELUCTANCE AS HE FELT THAT HE WAS RECONFIRMING A MISTAKE THAT HE PREVIOUSLY HAD EXPLAINED. FURTHER, THE CONTRACTOR STATED THAT HE WAS NOT CONFIRMING HIS ORIGINAL BID PRICE BUT MERELY COMPLYING WITH THE CONTRACTING OFFICER'S REQUEST. THE CONTRACTOR REQUESTED THAT THE CONTRACT PRICE BE INCREASED BY $1,295.12, DUE TO THE ERROR. THE RECORD INDICATES THAT THE CONTRACT WORK HAS BEEN COMPLETED.

WHERE ONLY ONE BID IS RECEIVED ON AN INVITATION THERE IS, OF COURSE, NO BASIS FOR A COMPARISON OF BIDS AND WHERE THERE IS NO INDICATION ON THE FACE OF THE BID THERE IS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. SEE 17 COMP. GEN. 560; AND 26 ID. 415. THE CONTRACTING OFFICER STATES THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID AT THE TIME OF AWARD. ERROR WAS NOT APPARENT ON THE FACE OF THE BID, AND WE DO NOT CONSIDER THE DIFFERENCE BETWEEN THE COMPANY'S BID AND THE GOVERNMENT'S ESTIMATED PRICE OF $4,808 GREAT ENOUGH TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN THE BID. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY IT UNTIL AFTER AWARD OF THE CONTRACT--- AND THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS 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 RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT MUST BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND, SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, AND THE BID WAS ACCEPTED IN GOOD FAITH AND WITHOUT NOTICE OF ANY DEFECT IN THE BID, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :