B-141706, FEB. 8, 1960

B-141706: Feb 8, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JANUARY 13. IT APPEARS THAT THE INVITATION CONTAINED TEN UNIT-PRICE SCHEDULES TOTALING 264 SEPARATE PAY ITEMS WHICH WERE LATER INCORPORATED IN THE CONTRACT AS DATA SHEETS. ADVISED THE ARMY'S AREA ENGINEER THERE WERE 79 ITEMS THAT WERE SHOWN ON THE CONTRACT DRAWINGS WHICH WERE NOT LISTED IN THE UNIT-PRICE SCHEDULES. THE CONTRACTOR'S COST FOR THESE ITEMS WAS $22. AT A SUBSEQUENT MEETING WITH THE CONTRACTING OFFICER IT WAS DETERMINED AND AGREED THAT SOME PAY ITEMS HAD BEEN INADVERTENTLY OMITTED FROM THE UNIT- PRICE SCHEDULES UPON WHICH WORK WAS REQUIRED BY THE CONTRACT DRAWINGS. WAS FURTHER AGREED. EITHER BECAUSE THERE WAS DETERMINED TO BE AN APPLICABLE UNIT PRICE THEREFOR ON THE UNIT PRICE SCHEDULE OR BECAUSE THE COST OF THE ITEM WAS NEGLIGIBLE.

B-141706, FEB. 8, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 13, 1959, (1960), WITH ENCLOSURES, FROM THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING OUR DECISION AS TO WHETHER A CERTAIN ADDITIONAL AMOUNT MAY BE ALLOWED GRUNLEY, WALSH AND BLANCHE, INC., UNDER CONTRACT NO. DA-49 080-ENG -4043, DATED JUNE 26, 1958.

GRUNLEY, WALSH AND BLANCHE, INC., ENTERED INTO THE ABOVE CONTRACT WITH THE UNITED STATES ARMY ENGINEER DISTRICT, WASHINGTON, WHEREBY THE CONTRACTOR AGREED TO PERFORM, IN ACCORDANCE WITH APPLICABLE SPECIFICATIONS, SCHEDULES, DRAWINGS, ETC., CERTAIN CONSTRUCTION WORK INVOLVING MODIFICATIONS AND ADDITIONS AND CONVERSION OF TACTICAL FACILITIES AT THE DESIGNATED SPECIAL AAA SITES IN THE WASHINGTON DEFENSE AREA FOR AN ORIGINAL ESTIMATED CONSIDERATION OF $815,214.52. IT APPEARS THAT THE INVITATION CONTAINED TEN UNIT-PRICE SCHEDULES TOTALING 264 SEPARATE PAY ITEMS WHICH WERE LATER INCORPORATED IN THE CONTRACT AS DATA SHEETS. BY LETTER DATED AUGUST 12, 1958, GRUNLEY, WALSH AND BLANCHE, INC., ADVISED THE ARMY'S AREA ENGINEER THERE WERE 79 ITEMS THAT WERE SHOWN ON THE CONTRACT DRAWINGS WHICH WERE NOT LISTED IN THE UNIT-PRICE SCHEDULES. THE CONTRACTOR'S COST FOR THESE ITEMS WAS $22,159.09. AT A SUBSEQUENT MEETING WITH THE CONTRACTING OFFICER IT WAS DETERMINED AND AGREED THAT SOME PAY ITEMS HAD BEEN INADVERTENTLY OMITTED FROM THE UNIT- PRICE SCHEDULES UPON WHICH WORK WAS REQUIRED BY THE CONTRACT DRAWINGS. WAS FURTHER AGREED, HOWEVER, THAT MANY OF THE 79 ITEMS COULD BE ELIMINATED, EITHER BECAUSE THERE WAS DETERMINED TO BE AN APPLICABLE UNIT PRICE THEREFOR ON THE UNIT PRICE SCHEDULE OR BECAUSE THE COST OF THE ITEM WAS NEGLIGIBLE. IT WAS AGREED BY THE CONTRACTING PARTIES THAT THERE WERE 26 ITEMS OF WORK ON THE DRAWINGS FOR WHICH NOSPECIFIC UNIT PRICE WAS ESTABLISHED ON THE DATA SHEETS IN THE CONTRACT. THE CONTRACTING PARTIES ALSO AGREED UPON $16,786.06 AS AN EQUITABLE AMOUNT FOR THE 26 ITEMS. THE CONTRACTOR CONTENDS THAT THE COSTS WERE NOT INCLUDED IN ANY ITEM OF ITS BID. THEREFORE, SUCH SUM REPRESENTS THE ADDITIONAL AMOUNT WHICH THE CONTRACTOR IS SEEKING FOR THESE ITEMS UNDER THE CONTRACT.

IN DETERMINING THE WORK TO BE PERFORMED UNDER A CONTRACT, IT IS FUNDAMENTAL THAT THERE MUST BE FULLY CONSIDERED, AS A WHOLE, ALL SPECIFICATIONS, SCHEDULES, DRAWINGS, ETC., WHICH SET FORTH THE REQUIREMENTS AND AMOUNT OF THE WORK INVOLVED. SUCH DETERMINATION IS THE SOLE RESPONSIBILITY OF THE BIDDER AND, IN THE ABSENCE OF AN OBVIOUS ERROR OR OMISSION, THE GOVERNMENT CONTRACTING OFFICER HAS THE RIGHT TO ASSUME THAT THE BID IS BASED ON A STRICT COMPLIANCE WITH EVERY REQUIREMENT OF SUCH SPECIFICATIONS, SCHEDULES AND DRAWINGS. IN THE INSTANT CASE, THE CONTRACTING OFFICER REPORTS THAT DURING DISCUSSIONS WITH THE CONTRACTOR IT WAS LEARNED THAT AT THE TIME OF THE PREPARATION OF ITS BID THE CONTRACTOR HAD BEEN AWARE THAT THE WORK OMITTED FROM THE PRICE SCHEDULES WAS ON THE CONTRACT DRAWINGS BUT HAD ASSUMED THAT SUCH WORK WOULD BE PAID FOR AS AN EXTRA. IN SUCH CIRCUMSTANCES, WE BELIEVE THAT THE CONTRACTOR OWED THE CLEAR DUTY OF EITHER INCLUDING, ON THE UNIT-PRICE SCHEDULES AS AN ADDITIONAL PAY ITEM, AN AMOUNT TO COVER THE WORK WHICH HAD BEEN OMITTED OR OF CALLING THE MATTER TO THE ATTENTION OF THE CONTRACTING OFFICER BEFORE SUBMITTING ITS BID. SINCE NEITHER ACTION WAS TAKEN IT MUST BE CONCLUDED THAT THE CONTRACTOR WAS NOT ENTIRELY FREE FROM FAULT AND DIRECTLY CONTRIBUTED TO THE CONDITION FROM WHICH IT NOW SEEKS RELIEF. MOREOVER, THE VERY NATURE OF THE ALLEGED OMISSION OF ANY AMOUNT FROM THE CONTRACTOR'S BID TO COVER THE 26 ITEMS REQUIRED IS SUCH AS TO PRECLUDE SUBSTANTIATION OF SUCH AN OMISSION IN THE BID. IN THAT CONNECTION, THERE MUST BE CONSIDERED, AS POINTED OUT BY THE CONTRACTING OFFICER, THE BID OF THE CONTRACTOR FOR THE ITEM ON THE UNIT-PRICE SCHEDULE ENTITLED "SPECIAL WORK REQUIREMENTS.' WHILE IT IS STATED THAT THE WORK COVERED BY THIS ITEM WAS NOT INTENDED TO INCLUDE ANY OF THE WORK IN THE 26 ITEMS THAT WERE OMITTED, IT IS NOTED THAT THIS ITEM INCLUDES BUT IS NOT LIMITED TO THE MISCELLANEOUS ITEMS SPECIFIED THEREIN. IN VIEW THEREOF, AND SINCE THE CONTRACTOR BID A TOTAL OF $92,000 FOR ALL FIVE SITES SPECIFIED AS AGAINST THE GOVERNMENT'S ESTIMATE OF ONLY $20,500 FOR THE WORK, IT IS NOT ONLY POSSIBLE BUT PROBABLE THAT AN AMOUNT WAS INCLUDED IN THE CONTRACTOR'S BID ON THIS ITEM TO COVER THE COST OF THE OMITTED ITEMS INCLUDED IN THE DRAWINGS AS WELL AS ALL OTHER CONTINGENCIES WHICH DID NOT READILY LEND THEMSELVES TO DEFINITE ASCERTAINMENT. IN ANY EVENT, THERE MAY NOT BE OVERLOOKED THE FACT THAT THE CONTRACTOR, AFTER KNOWLEDGE OF THE ALLEGED DISCREPANCY BETWEEN THE PRICE SCHEDULES AND DRAWINGS, EXECUTED THE CONTRACT UNDER WHICH IT UNEQUIVOCALLY AGREED TO PERFORM THE WORK SPECIFIED THEREIN FOR THE CONSIDERATION QUOTED IN ITS BID. SUCH CONTRACT IS PRESUMED, IN LAW, TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES.

IN VIEW OF THE FOREGOING, THERE APPEARS NO LEGAL BASIS FOR PAYING ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE. FURTHERMORE, IT APPEARS THAT, AT BEST, THE MATTER RESOLVES ITSELF INTO A QUESTION OF A VERY DOUBTFUL NATURE. THIS BEING THE CASE, THERE IS FOR APPLICATION THE PRINCIPLE OF LAW LAID DOWN IN LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291, AND CHARLES V. UNITED STATES, 19 C.CLS. 316, 319, TO THE EFFECT THAT WHERE THERE EXISTS A REASONABLE DOUBT AS TO THE VALIDITY OF A CLAIM AGAINST THE GOVERNMENT, THE ACCOUNTING OFFICERS OF THE GOVERNMENT PROPERLY MAY NOT CERTIFY SUCH A CLAIM FOR PAYMENT.

ACCORDINGLY, IT IS OUR VIEW THAT THE CONTRACTOR MAY NOT BE ALLOWED ANY ADDITIONAL AMOUNT UNDER THE CONTRACT FOR THE ITEMS INVOLVED.