B-146079, JUN. 29, 1961

B-146079, JUN. 29, 1961

TO THE SECRETARY OF THE ARMY:

WE REFER TO A LETTER OF JUNE 6, 1961, WITH ENCLOSURES, REQUESTING A DECISION RELATIVE TO A MISTAKE IN BID ALLEGED BY CHARLES SIMKIN AND SONS, INC., AFTER AWARD OF CONTRACT NO. DA-30-075-ENG-9599.

INVITATION NO. ENG-30-075-61-15 WAS ISSUED ON AUGUST 16, 1960, BY THE CORPS OF ENGINEERS, U.S. ARMY, NEW YORK CITY, CALLING FOR BIDS TO REHABILITATE THE AIR-CONDITIONING SYSTEM IN THE HOSPITAL AT FORT MONMOUTH, NEW JERSEY. BY BID OPENING ON OCTOBER 13, 1960, BIDS WERE RECEIVED AS FOLLOWS:

TABLE

"STEPHEN J. GROSS, INC. $56,670.

THE PROCTOR CO. 68,400.

CHARLES SIMKIN AND SONS, INC. 44,737.

G. E. SCHILLING, INC. 59,900.

BILLEN ENGINEERING AND SALES CO. 98,300.

GOVERNMENT ESTIMATE 50,500.'

ON NOVEMBER 3, 1960, THE CONTRACT WAS AWARDED TO CHARLES SIMKIN AND SONS, INC., IN THE AMOUNT OF $44,737. WORK WAS TO COMMENCE WITHIN 5 DAYS AFTER RECEIPT OF NOTICE TO PROCEED AND THE PROJECT WAS TO BE COMPLETED WITHIN 150 DAYS THEREAFTER.

BY LETTER OF JANUARY 17, 1961, TO THE CONTRACTING OFFICER, THE CONTRACTOR ALLEGED ERROR IN BID IN THE AMOUNT OF $3,658. THE CONTRACTOR STATES THAT WHEN IT PREPARED ITS BID, COSTS WERE ASSEMBLED ON A "GENERAL SUMMARY" SHEET FROM WHICH THE ESTIMATED COSTS WERE PREPARED. HOWEVER, IN PERFORMING THIS OPERATION, THE SUM OF $3,293 WAS INADVERTENTLY OMITTED FROM THE TOTAL, CAUSING THE BID TO BE DEFICIENT BY $3,293 PLUS A TOTAL OF 11 PERCENT FOR OVERHEAD, PROFIT AND BOND (TOTAL OF $3,658). WORK SHEETS FURNISHED BY THE CONTRACTOR REFLECT THE ALLEGED ERROR. SIMKIN REQUESTED REIMBURSEMENT OF $3,658 IN ACCORDANCE WITH PARAGRAPH 14 OF THE SPECIFICATIONS, PAGE 1B-5. THAT PARAGRAPH IS INCLUDED AS PART OF THE INSTRUCTIONS TO BIDDERS AND IT PROVIDES AS FOLLOWS:

"14. MISTAKES IN BIDS:

"THE BIDDER HEREBY WAIVES THAT PORTION OF ANY ALLEGED MISTAKE OR MISTAKES IN HIS BID WHICH FALLS WITHIN THE FOLLOWING AMOUNT:

"IF BID IS $250,000 OR LESS--- 5 PERCENT OF THE BID;

"IN CASES WHERE THE ALLEGATION OF MISTAKE EXCEEDS THE ABOVE WAIVED AMOUNTS AND THE REQUEST FOR CORRECTION IS ALLOWED, SUCH AMOUNT WILL BE EXCLUDED FROM THE CONTRACT PRICE; HOWEVER, THE AMOUNT WAIVED AS PROVIDED HEREIN WILL NOT BE DEDUCTED FOR THE PURPOSE OF EVALUATING BIDS TO DETERMINE THE LOW BIDDER.

"THE ABOVE WAIVER DOES NOT APPLY TO ANY CLERICAL MISTAKE WHICH IS OBVIOUS OR APPARENT ON THE FACE OF THE BID INCLUDING BUT NOT LIMITED TO (1) MISTAKE IN THE EXTENSION OF A UNIT PRICE OR PRICES; (2) A MISTAKE IN TOTALING THE SUMS OF VARIOUS BID ITEMS; (3) OBVIOUSLY MISPLACED DECIMAL POINT OR (4) FAILURE TO INSERT THE UNIT PRICE WHERE AMOUNT INTENDED CAN BE DETERMINED FROM FACE OF BID.

"THIS CLAUSE IS NOT APPLICABLE TO ALLEGATIONS OF MISTAKES WHICH, IF ALLOWED, WOULD RESULT IN A REDUCTION IN THE BID PRICE.'

THE CONTRACTING OFFICER STATES THAT THERE WAS NO ACTUAL NOTICE OF ERROR AND THE GOVERNMENT DID NOT SUSPECT ERROR WHEN THE AWARD WAS MADE.

IN ORDER TO AUTHORIZE RELIEF ON ACCOUNT OF MISTAKE IN AN ACCEPTED BID IT MUST APPEAR THAT THE ACCEPTING PARTY HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR AT THE TIME OF ACCEPTANCE. 17 COMP. GEN. 452. THE RECORD HERE SHOWS THAT NO ACTUAL KNOWLEDGE OF THE ERROR EXISTED AT THE TIME OF THE AWARD. NEITHER DO WE THINK THAT THE CONTRACTING OFFICER SHOULD HAVE SUSPECTED ERROR. WHILE THERE WAS SOME DISCREPANCY IN BID PRICES THE PRICE RANGE WAS NOT SUCH AS WOULD INDICATE THE PROBABILITY OF ERROR. IT IS NOT QUESTIONED THAT AN ERROR IN BID DID OCCUR. HOWEVER, IT DOES NOT APPEAR THAT THE GOVERNMENT HAD ANY NOTICE OF ERROR AT THE TIME OF ACCEPTANCE. UNDER THESE CIRCUMSTANCES, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE 26 COMP. GEN. 415 AND CASES CITED THEREIN. ACCORDINGLY, THE ERROR IN BID DOES NOT ENTITLE THE CONTRACTOR TO ANY RELIEF FROM THE CONTRACT PRICE.