B-142748, JUN. 2, 1960

B-142748, JUN. 2, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED APRIL 28, 1960, WITH ENCLOSURES, FORWARDED IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY FOR LOGISTICS, REQUESTING OUR DECISION AS TO WHETHER THERE MAY BE GRANTED THE RELIEF SOUGHT BY SCHEFKE BUILDERS, INC., IN CONNECTION WITH CONTRACT NO. DA-20- 051-AV-892, DATED MAY 18, 1959.

IN RESPONSE TO INVITATION NO. AV-20-051-59-25, ISSUED ON MARCH 25, 1959, BY THE DEPARTMENT OF THE ARMY, CENTRAL PROCUREMENT OFFICE, FORT WAYNE, DETROIT, MICHIGAN, AND AMENDED ON APRIL 22, 1959, SCHEFKE BUILDERS, INC., SUBMITTED A BID OFFERING TO MODIFY THE INTERIOR OF CONNECTING CORRIDOR BUILDINGS AT NIKE SITES, DETROIT DEFENSE AREA, IN THE AMOUNT OF $5,899. THREE OTHER BIDS WERE RECEIVED FOR THE WORK IN THE AMOUNTS OF $9,534, $9,945, AND $10,690, AND THE GOVERNMENT'S ESTIMATE ON THE INVITATION, AS AMENDED, WAS $8,298.99. IN REPLY TO THE GOVERNMENT'S REQUEST FOR A VERIFICATION OF ITS BID, SCHAFKE BUILDERS, INC., BY LETTER DATED MAY 18, 1959, ADVISED THAT ITS BID WAS CORRECT. AFTER THE CONTRACT WAS AWARDED TO THE CORPORATION, A LETTER DATED JUNE 22, 1959, WAS ADDRESSED BY IT TO THE CONTRACTING OFFICER, ALLEGING THAT AN ERROR HAD BEEN MADE IN THE BID OF ITS ELECTRICAL SUBCONTRACTOR, THE COLLINS ELECTRIC COMPANY. THE CORPORATION REQUESTS, ON BEHALF OF THE SUBCONTRACTOR, RELIEF THEREFOR IN THE AMOUNT OF $1,816.

THE BASIC QUESTION HERE PRESENTED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RECORD SHOWS THAT IN REPLY TO A REQUEST THAT SCHEFKE BUILDERS, INC., REVIEW ITS BID, THE PRESIDENT OF THE CORPORATION, BY LETTER DATED MAY 18, 1959, ADVISED THE CONTRACTING OFFICER THAT,"I HAVE CHECKED OVER MY FIGURES FOR THE MODIFICATIONS TO INTERIOR OF CONNECTING CORRIDOR BUILDINGS, NIKE SITES, AND FIND THEM TO BE CORRECT.' HENCE, THE RECORD CLEARLY ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT TO ASCERTAIN THE CORRECTNESS OF THE BID OF SCHAFKE BUILDERS, INC., AND, AFTER THE CORPORATION'S VERIFICATION THEREOF, THE CONTRACTING OFFICER NOT ONLY WAS FULLY JUSTIFIED IN CONSIDERING THE BID CORRECT AND PROPER FOR AWARD BUT, IN FACT, WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT HAD HE NOT MADE THE AWARD TO THE CORPORATION AS THE LOWEST RESPONSIBLE BIDDER. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 97 A. 774; SHRIMPTON MFG. COMPANY V. BRIN, 125 S.W. 942; ALABAMA SHIRT AND TROUSER COMPANY V. UNITED STATES, 121 C.CLS. 313. MOREOVER, THE FACTS OF RECORD PRECLUDE ANY ASSUMPTION OF BAD FAITH OR ARBITRARY ACTION ON THE PART OF THE CONTRACTING OFFICER. 27 COMP. GEN. 17. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT. SEE 36 COMP. GEN. 27 AND THE COURT CASES CITED THEREIN.

FURTHERMORE, NO ERROR, AS SUCH, WOULD APPEAR TO HAVE BEEN MADE BY SCHEFKE BUILDERS, INC., SINCE ITS BID WAS IN THE AMOUNT INTENDED AT THE TIME OF ITS SUBMISSION. THE FACT THAT THE CORPORATION FAILED TO OBTAIN A CORRECT QUOTATION FROM ITS SUBCONTRACTOR IS AN ERROR OR OMISSION WHICH WAS DUE SOLELY TO THE SUBCONTRACTOR'S NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER.