B-141679, JAN. 27, 1960

B-141679: Jan 27, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JANUARY 8. DA-11-032-ENG-6481 WAS AWARDED. BIDDERS WERE TO QUOTE A PRICE FOR THE ENTIRE PROJECT. THE BIDDERS WERE TO QUOTE A PRICE FOR THE ENTIRE PROJECT LESS THE CONSTRUCTION OF THE OFFICERS' QUARTERS BUILDING. BIDDERS WERE TO QUOTE A PRICE FOR ONLY THE OFFICERS' QUARTERS BUILDING. PROSPECTIVE BIDDERS WERE ADVISED THAT AWARD WOULD BE ON THE BASIS OF THE SCHEDULE OR SCHEDULES RESULTING IN THE LOWEST TOTAL COST TO THE GOVERNMENT. A CONTRACT FOR THE WORK COVERED BY SCHEDULE B WAS AWARDED TO MR. WAS ADDED TO THE CONTRACT WORK. DAHL STATED THAT AT THE TIME HE WAS ESTIMATING THE COST OF THE PROJECT. DAHL STATED FURTHER THAT HE HAD TALKED TO VARIOUS GOVERNMENT PERSONNEL AND TO THE ARCHITECT-ENGINEER AS TO WHETHER COMBINATION STORM AND SCREEN UNITS WERE REQUIRED AND RECEIVED NO SATISFACTORY ANSWER.

B-141679, JAN. 27, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 8, 1959 (1960), WITH ENCLOSURES, FROM THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, DEPARTMENT OF THE ARMY, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH MR. JOHN O. DAHL ALLEGES HE MADE IN HIS BID ON WHICH CONTRACT NO. DA-11-032-ENG-6481 WAS AWARDED.

THE UNITED STATES ARMY ENGINEER DISTRICT, CHICAGO, CORPS OF ENGINEERS, BY INVITATION NO. ENG-11-032-58-63 REQUESTED BIDS FOR THE FURNISHING OF LABOR AND MATERIALS AND FOR PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF ONE OFFICERS' QUARTERS BUILDING, ONE OFFICERS' DINING HALL, RELATED SITE WORK AND PARKING LOT, SAGE, TRUAX FIELD, MADISON, WISCONSIN. UNDER SCHEDULE C, BIDDERS WERE TO QUOTE A PRICE FOR THE ENTIRE PROJECT; UNDER SCHEDULE B, THE BIDDERS WERE TO QUOTE A PRICE FOR THE ENTIRE PROJECT LESS THE CONSTRUCTION OF THE OFFICERS' QUARTERS BUILDING; AND UNDER SCHEDULE A, BIDDERS WERE TO QUOTE A PRICE FOR ONLY THE OFFICERS' QUARTERS BUILDING. PROSPECTIVE BIDDERS WERE ADVISED THAT AWARD WOULD BE ON THE BASIS OF THE SCHEDULE OR SCHEDULES RESULTING IN THE LOWEST TOTAL COST TO THE GOVERNMENT. IN RESPONSE MR. JOHN O. DAHL SUBMITTED A BID DATED JUNE 25, 1958, OFFERING TO PERFORM THE WORK COVERED BY EACH SCHEDULE AT THE JOB PRICES SET FORTH OPPOSITE EACH ITEM. ON JUNE 30, 1958, A CONTRACT FOR THE WORK COVERED BY SCHEDULE B WAS AWARDED TO MR. DAHL. BY MODIFICATION NO. 1 DATED JULY 25, 1958, THE WORK COVERED BY SCHEDULE A, COVERING THE CONSTRUCTION OF THE OFFICERS' QUARTERS BUILDING, WAS ADDED TO THE CONTRACT WORK.

IN HIS REPORT OF NOVEMBER 30, 1959, THE CONTRACTING OFFICER STATED THAT ON AUGUST 6, 1958, AT A PRE-CONSTRUCTION CONFERENCE, MR. DAHL ALLEGED THAT HE HAD FAILED TO INCLUDE IN HIS BID PRICE FOR THE OFFICERS' QUARTERS BUILDING THE COST OF THE COMBINATION STORM AND SCREEN UNITS; THAT IN A LETTER DATED NOVEMBER 13, 1958, MR. DAHL STATED THAT AT THE TIME HE WAS ESTIMATING THE COST OF THE PROJECT, THE QUESTION AROSE AS TO WHETHER THE CONTRACT REQUIRED THE FURNISHING OF COMBINATION STORM AND SCREEN UNITS FOR THE OFFICERS' QUARTERS BUILDING; AND THAT MR. DAHL STATED FURTHER THAT HE HAD TALKED TO VARIOUS GOVERNMENT PERSONNEL AND TO THE ARCHITECT-ENGINEER AS TO WHETHER COMBINATION STORM AND SCREEN UNITS WERE REQUIRED AND RECEIVED NO SATISFACTORY ANSWER.

THE RECORD INDICATES THAT PURSUANT TO MR. DAHL'S REQUEST, THE CONTRACTING OFFICER RENDERED A FORMAL DECISION AS TO WHETHER THE CONTRACT REQUIRED THE FURNISHING OF COMBINATION STORM AND SCREEN UNITS FOR THE OFFICERS' QUARTERS BUILDING, AND THAT SUCH OFFICER DETERMINED THAT THEY WERE REQUIRED. IN A LETTER DATED APRIL 9, 1959, TO THE CHIEF OF ENGINEERS, MR. DAHL APPEALED FROM THE CONTRACTING OFFICER'S DECISION. BY LETTER DATED SEPTEMBER 4, 1959, THE BOARD OF CONTRACT APPEALS ADVISED MR. DAHL THAT IN VIEW OF THE FACT THAT HE HAD ADMITTED IN HIS LETTER OF AUGUST 6, 1959, THAT THE CONTRACT DOES REQUIRE THE FURNISHING OF COMBINATION STORM AND SCREEN UNITS FOR THE OFFICERS' QUARTERS BUILDING, IT WOULD APPEAR THAT HIS CLAIM WAS NOW BASED ON AN ERROR IN BID, WHICH CLAIM THE BOARD STATED IT HAD NO JURISDICTION TO CONSIDER.

IN A LETTER DATED OCTOBER 1, 1959, ADDRESSED TO OUR OFFICE MR. DAHL REQUESTED THAT THE CONTRACT PRICE OF THE OFFICERS' QUARTERS BUILDING BE INCREASED BY $2,000 TO COVER THE COST OF THE OMITTED COMBINATION STORM AND SCREEN UNITS. WITH HIS LETTER MR. DAHL SUBMITTED PAGE SIX OF HIS ESTIMATE SHEETS AND ON SUCH SHEET APPEARS THE NOTATION "ALUMINUM COMBINATIONS ? ? ? PAGE 11 OF 18.' NO PRICE IS SHOWN ON THE ESTIMATE SHEET FOR SUCH ITEM.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE CONTRACTING OFFICER REPORTS THAT HE WAS NOT ON NOTICE OF ERROR PRIOR TO THE ACCEPTANCE OF THE BID. THE DIFFERENCE BETWEEN PRICES BID BY MR. DAHL ON SCHEDULE A AND THE OTHER PRICES BID THEREON ARE NOT SO GREAT AS TO WARRANT A CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF MR. DAHL. ALTHOUGH, AFTER AWARD, MR. DAHL FURNISHED ONE OF HIS ESTIMATE SHEETS, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY MR. DAHL IN COMPUTING HIS BID PRICE ON SCHEDULE A. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID AS TO SCHEDULE A WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY MR. DAHL UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. 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. ANY ERROR IN THE BID WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. DA 11-032- ENG-6481 FOR THE OFFICERS' QUARTERS BUILDING.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S REPORT ON NOVEMBER 30, 1959, AND THE ABSTRACT OF BIDS, ARE RETURNED.