B-143473, AUG. 25, 1960

B-143473: Aug 25, 1960

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF JULY 11. NBY-30510 BECAUSE OF AN ERROR ALLEGED BY THE COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH THE CONTRACT IS BASED. ONLY ITEM 1 IS HERE INVOLVED. THE ABSTRACT OF BIDS AS TO THAT ITEM SHOWS THAT SIX OTHER BIDS WERE RECEIVED RANGING FROM $33. WAS MUCH LOWER THAN THE NEXT TWO BIDS. THE COMPANY WAS ADVISED THAT THE NEXT TWO BIDS ON ITEM 1 WERE IN THE AMOUNTS OF $33. THE COMPANY WAS REQUESTED TO CHECK ITS PROPOSAL TO ASSURE THAT ALL COMPONENTS OF THE WORK HAD BEEN CONSIDERED BY IT AND TO CONFIRM ITS BID PRICES IN WRITING. IT ALSO WAS REQUESTED TO SUBMIT A STATEMENT OF ITS EXPERIENCE IN PERFORMING SIMILAR OR COMPARABLE WORK. IN REPLY THE COMPANY ADVISED THE DISTRICT PUBLIC WORKS OFFICE BY AN UNDATED LETTER AS FOLLOWS: "WE CERTIFY THAT WE WILL PERFORM ALL WORK ON THE ABOVE PROJECT AS SPECIFIED IN THE SPECIFICATIONS.'.

B-143473, AUG. 25, 1960

TO ALLAN EDGAR HARRIS, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1960, WITH ENCLOSURE, REQUESTING ON BEHALF OF THE THOMAS BROTHERS PAINTING CO., INC., ADDITIONAL COMPENSATION UNDER CONTRACT NO. NBY-30510 BECAUSE OF AN ERROR ALLEGED BY THE COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH THE CONTRACT IS BASED.

BY INVITATION ISSUED MAY 11, 1960, THE DISTRICT PUBLIC WORKS OFFICE, FIFTH NAVAL DISTRICT, NAVAL BASE, NORFOLK, VIRGINIA, REQUESTED BIDS--- TO BE OPENED MAY 31, 1960--- FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK CALLED FOR BY NAVDOCKS SPECIFICATION NO. 30510/60 AND ADDENDUM NO. 1 FOR PAINTING THE CENTRAL HEATING PLANT AT THE MARINE CORPS BASE, CAMP LEJEUNE, NORTH CAROLINA, ITEMS 1 AND 2. ITEM 1 COVERED THE ENTIRE PROJECT AND ITEM 2 COVERED THE MAJOR PORTION OF THE PROJECT. RESPONSE THERETO THE THOMAS BROTHERS PAINTING CO., INC., SUBMITTED A BID OFFERING TO PERFORM THE WORK COVERED BY ITEM 1 AT A LUMP SUM PRICE OF $22,247 AND TO PERFORM THE WORK COVERED BY ITEM 2 AT A LUMP SUM PRICE OF $20,847. ONLY ITEM 1 IS HERE INVOLVED, AND THE ABSTRACT OF BIDS AS TO THAT ITEM SHOWS THAT SIX OTHER BIDS WERE RECEIVED RANGING FROM $33,875 TO $86,350.

IN EVALUATING THE BIDS, THE OFFICER IN CHARGE OF CONSTRUCTION NOTED THAT THE BID OF THE THOMAS BROTHERS PAINTING CO., INC., WAS MUCH LOWER THAN THE NEXT TWO BIDS, AND BY LETTER DATED JULY 1, 1960, THE COMPANY WAS ADVISED THAT THE NEXT TWO BIDS ON ITEM 1 WERE IN THE AMOUNTS OF $33,875 AND $34,277. THE COMPANY WAS REQUESTED TO CHECK ITS PROPOSAL TO ASSURE THAT ALL COMPONENTS OF THE WORK HAD BEEN CONSIDERED BY IT AND TO CONFIRM ITS BID PRICES IN WRITING. IT ALSO WAS REQUESTED TO SUBMIT A STATEMENT OF ITS EXPERIENCE IN PERFORMING SIMILAR OR COMPARABLE WORK. IN REPLY THE COMPANY ADVISED THE DISTRICT PUBLIC WORKS OFFICE BY AN UNDATED LETTER AS FOLLOWS:

"WE CERTIFY THAT WE WILL PERFORM ALL WORK ON THE ABOVE PROJECT AS SPECIFIED IN THE SPECIFICATIONS.'

IT IS REPORTED THAT SINCE THE UNDATED LETTER WAS NOT CONSIDERED TO BE AN ADEQUATE REPLY TO THE ADMINISTRATIVE LETTER OF JUNE 1, 1960, THE COMPANY WAS AGAIN REQUESTED BY LETTER DATED JUNE 6, 1960, TO FURNISH A STATEMENT SHOWING ITS EXPERIENCE IN SIMILAR WORK AND TO CONFIRM ITS BID PRICES. LETTER DATED JUNE 7, 1960, THE COMPANY SET FORTH A STATEMENT OF ITS EXPERIENCE ON PREVIOUS CONSTRUCTION PROJECTS AND ALSO CONFIRMED ITS BID PRICE. ON JUNE 9, 1960, THE COMPANY WAS AWARDED A CONTRACT FOR THE WORK COVERED BY ITEM 1 OF THE INVITATION.

IT IS REPORTED THAT THE COMPANY BEGAN WORK AT THE SITE ON JUNE 20, 1960; THAT THE WORK CONTINUED THROUGHOUT THE MORNING OF JUNE 23, 1960, WHEN IT WAS ASCERTAINED THAT SANDBLASTING EQUIPMENT WAS NEEDED FOR CLEANING OF THE SURFACES; AND THAT AFTER SUCH DISCOVERY, THE COMPANY'S PERSONNEL LEFT THE SITE. IT IS ALSO REPORTED THAT AFTER THE COMPANY CEASED OPERATIONS AT THE SITE, YOU MADE A VERBAL CLAIM OF ERROR IN THE COMPANY'S BID TO THE DISTRICT PUBLIC WORKS OFFICE AND THAT UPON BEING APPRISED BY THE OFFICER IN CHARGE OF CONSTRUCTION THAT HE HAD NO AUTHORITY TO GRANT RELIEF FROM AN ERROR IN BID AFTER AN AWARD HAD BEEN MADE, YOU ADVISED THAT YOU WOULD SEEK RELIEF FOR YOUR CLIENT FROM THE COMPTROLLER GENERAL OF THE UNITED STATES.

IN A LETTER DATED JULY 11, 1960, ADDRESSED TO OUR OFFICE, YOU REQUESTED THAT THE CONTRACT PRICE OF ITEM 1 BE INCREASED BY THE AMOUNT OF $6,275 TO COVER THE COST OF SANDBLASTING THE EXTERIOR PORTIONS OF BUILDING NO. 1700, WHICH, YOU STATE, THE COMPANY HAD OMITTED FROM ITS BID PRICE FOR THAT ITEM. YOU STATE THAT THE ERROR IN BID RESULTED FROM A MISINTERPRETATION OF THE SPECIFICATIONS BY MR. AND MRS. THOMAS, WHO HAD INTERPRETED THE SPECIFICATIONS AS NOT REQUIRING THE SANDBLASTING OF THE EXTERIOR PORTIONS OF BUILDING NO. 1700.

THE SOLE QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE COMPANY'S BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE INVITATION WAS CLEAR AND UNAMBIGUOUS AS TO THE GOVERNMENT'S NEEDS. THE COMPANY ALONE WAS RESPONSIBLE FOR THE PREPARATION OF ITS BID AND WAS GIVEN SUFFICIENT OPPORTUNITY PRIOR TO AWARD TO RECHECK AND RECOMPUTE ITS FIGURES. THE COURT OF CLAIMS IN THE CASE OF FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 123, STATED IN LANGUAGE PARTICULARLY APPLICABLE HERE THAT:

"* * * THE PARTIES ARE DEALING AT ARMS LENGTH AND BIDDERS ARE PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN PERFORM THE WORK SPECIFIED AT A REASONABLE PROFIT. IF THEY FAIL TO DO SO, AS PLAINTIFF DID IN THIS CASE, THE GOVERNMENT CANNOT FOR THAT REASON BE HELD FOR THE RESULTING LOSS.'

IT IS CLEAR THAT THE ERROR AS ALLEGED WAS UNILATERAL AND NOT CONTRIBUTED TO BY THE GOVERNMENT, AND HENCE DOES NOT ENTITLE THE COMPANY TO THE RELIEF CLAIMED. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 103 C.CLS. 249; SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505. SEE, ALSO, 26 COMP. GEN. 415; 36 ID. 27.

THE RECORD ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT TO ASCERTAIN THE CORRECTNESS OF THE COMPANY'S BID; IN FACT, THE COMPANY WAS SPECIFICALLY ADVISED OF THE AMOUNTS OF THE NEXT TWO LOW BIDS. IT WAS NOT UNTIL THE COMPANY UNEQUIVOCALLY CONFIRMED ITS BID THAT THE CONTRACTING OFFICER CONSIDERED IT CORRECT AND PROPER FOR AWARD. HAD THE CONTRACTING OFFICER THEREAFTER NOT AWARDED THE CONTRACT TO THE COMPANY AS THE LOWEST RESPONSIBLE BIDDER, HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. 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 CONTRACT, AS EXECUTED, REPRESENTED THE FINAL UNDERSTANDING OF THE PARTIES AND FIXED ALL RIGHTS AND LIABILITIES THEREUNDER. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED IN THE ABSENCE OF ADEQUATE CONSIDERATION, AND NO AGENT OF THE GOVERNMENT MAY WAIVE SUCH VESTED RIGHT FOR CONSIDERATIONS OF HARDSHIP OR EQUITIES IN FAVOR OF THE CONTRACTOR. SEE 22 COMP. GEN. 260; DAY V. UNITED STATES, 245 U.S. 159.

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