B-143310, JUL. 15, 1960

B-143310: Jul 15, 1960

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED JUNE 23. KELTCH TO HAVE BEEN MADE IN HIS BID OPENED ON MAY 24. THE WORK TO BE PERFORMED WAS DIVIDED INTO 33 ITEMS FOR THE PURPOSE OF SUBMITTING BIDS AND MAKING PAYMENT FOR THE WORK. KELTCH WAS ACCEPTED ON JUNE 2. THE ABSTRACT OF BIDS SHOWS THAT THE ONLY OTHER BID ON THE PROJECT WAS IN THE AMOUNT OF $179. NO FAIR COMPARISON WITH OTHER BIDS CAN BE MADE WHERE ONLY TWO VARIANT BIDS ARE RECEIVED. THERE BEING NO MORE REASON FOR CONSIDERING THE LOW BID TOO LOW THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN QUOTING A PRICE TOO HIGH. KELTCH WAS ONLY APPROXIMATELY SEVEN PERCENT LESS THAN THE GOVERNMENT ENGINEER'S ESTIMATE.

B-143310, JUL. 15, 1960

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JUNE 23, 1960, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY MR. JOHN M. KELTCH TO HAVE BEEN MADE IN HIS BID OPENED ON MAY 24, 1960.

THE BUREAU OF RECLAMATION, DENVER, COLORADO, UNDER SPECIFICATIONS NO. DC- 5307, REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF EARTHWORK, LATERAL, AND DRAINS, SUMP 2, CONTRACT UNIT 2, TULE LAKE DIVISION, OREGON-CALIFORNIA, KLAMATH PROJECT. THE WORK TO BE PERFORMED WAS DIVIDED INTO 33 ITEMS FOR THE PURPOSE OF SUBMITTING BIDS AND MAKING PAYMENT FOR THE WORK. IN RESPONSE MR. JOHN M. KELTCH SUBMITTED A BID DATED MAY 17, 1960, OFFERING TO PERFORM THE WORK FOR VARIOUS UNIT PRICES SET FORTH OPPOSITE EACH ITEM, WHICH PRODUCED A TOTAL BID OF $151,285. THE BID OF MR. KELTCH WAS ACCEPTED ON JUNE 2, 1960.

BY NOTARIZED LETTER DATED JUNE 3, 1960, IN WHICH HE REQUESTED REJECTION OF HIS BID, MR. KELTCH ADVISED THAT HE HAD MADE AN ERROR IN QUOTING ON ITEM 2 OF HIS BID IN THAT HE HAD USED AN ERRONEOUS DIRECT COST FIGURE OF $0.21 ON HIS RECAP WORKSHEET INSTEAD OF THE CORRECT FIGURE OF $0.31 SHOWN ON HIS WORKSHEET FOR ITEM 2. IN SUPPORT OF HIS ALLEGATION OF ERROR, MR. KELTCH SUBMITTED HIS RECAP WORKSHEET AND HIS WORKSHEET ON ITEM 2.

THE ABSTRACT OF BIDS SHOWS THAT THE ONLY OTHER BID ON THE PROJECT WAS IN THE AMOUNT OF $179,697. ORDINARILY, NO FAIR COMPARISON WITH OTHER BIDS CAN BE MADE WHERE ONLY TWO VARIANT BIDS ARE RECEIVED, THERE BEING NO MORE REASON FOR CONSIDERING THE LOW BID TOO LOW THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN QUOTING A PRICE TOO HIGH. SEE 20 COMP. GEN. 286. THE CONTRACTING OFFICER STATES THAT SINCE THE BID OF MR. KELTCH WAS ONLY APPROXIMATELY SEVEN PERCENT LESS THAN THE GOVERNMENT ENGINEER'S ESTIMATE, HE DID NOT AT THE TIME OF AWARD SUSPECT ANY POSSIBILITY OF THE BIDDER'S ALLEGED ERROR. ALTHOUGH, AFTER AWARD, MR. KELTCH FURNISHED SOME EVIDENCE IN SUBSTANTIATION OF HIS ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER WAS AWARE OF HOW HE COMPUTED HIS BID PRICE. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED 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. SEE UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S.C. 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 MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE MR. KELTCH 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, WE FIND NO LEGAL BASIS FOR RELEASING MR. KELTCH FROM HIS OBLIGATION TO PERFORM THE CONTRACT WORK AT THE PRICE SPECIFIED IN HIS ACCEPTED BID.