B-146314, AUG. 4, 1961

B-146314: Aug 4, 1961

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED JUNE 27. TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. 14-10-0315 289 IS BASED. THE DECISION WILL BE ADDRESSED TO YOU. THE BID OF THE CORPORATION WAS ACCEPTED ON JUNE 21. IT IS STATED THAT ABOUT 4:30 P.M. AYER WAS ADVISED THAT THE LETTER OF AWARD HAD BEEN MAILED TO HIS CORPORATION ON JUNE 21. THAT WHEN HE WAS ASKED WHETHER HE HAD RECEIVED THE LETTER OF AWARD. IT IS ALSO STATED THAT DURING THE COURSE OF THE CONVERSATION. WHICH WAS RECEIVED ON JUNE 26. THE CORPORATION STATED THAT THE COST OF THE CONCRETE WORK ON THE SUMMARY SHEET SHOULD HAVE BEEN SHOWN AS BEING $8. SUBSTANTIATES THE ALLEGATION THAT AN ERROR WAS MADE BY THE CORPORATION IN ITS BID.

B-146314, AUG. 4, 1961

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JUNE 27, 1961, WITH ENCLOSURES, FROM MR. CHARLES E. SHEVLIN, ACTING SUPERINTENDENT AND CONTRACTING OFFICER, NATIONAL PARK SERVICE, GRAND CANYON NATIONAL PARK, GRAND CANYON, ARIZONA, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY ARCADIA BUILDERS, INC., PHOENIX, ARIZONA, TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. 14-10-0315 289 IS BASED.

SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE DECISION WILL BE ADDRESSED TO YOU. SEE 26 COMP. GEN. 993; 28 ID. 401; 36 ID. 513.

THE WESTERN OFFICE, DIVISION OF DESIGN AND CONSTRUCTION, NATIONAL PARK SERVICE, SAN FRANCISCO, CALIFORNIA, REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND FOR PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF FIVE RESIDENCES AT SOUTH RIM, GRAND CANYON NATIONAL PARK, ARIZONA, PROJECT NO. GC-W333. IN RESPONSE, ARCADIA BUILDERS, INC., SUBMITTED A BID DATED JUNE 1, 1961, OFFERING TO CONSTRUCT THE FIVE RESIDENCES COMPLETE FOR THE LUMP SUM OF $79,680. THE BID OF THE CORPORATION WAS ACCEPTED ON JUNE 21, 1961.

IN A MEMORANDUM DATED JULY 7, 1961, FROM THE ACTING SUPERINTENDENT, GRAND CANYON NATIONAL PARK, TO THE DIRECTOR, NATIONAL PARK SERVICE, IT IS STATED THAT ABOUT 4:30 P.M. ON THE AFTERNOON OF JUNE 22, 1961, MR. AYER, PRESIDENT OF ARCADIA BUILDERS, INC., TELEPHONED HIS OFFICE TO INQUIRE ABOUT AWARD OF THE CONTRACT; THAT MR. AYER WAS ADVISED THAT THE LETTER OF AWARD HAD BEEN MAILED TO HIS CORPORATION ON JUNE 21, 1961, AND THAT WHEN HE WAS ASKED WHETHER HE HAD RECEIVED THE LETTER OF AWARD, HE REPLIED THAT HE HAD NOT. IT IS ALSO STATED THAT DURING THE COURSE OF THE CONVERSATION, MR. AYER STATED THAT HE APPARENTLY HAD MADE A MISTAKE IN HIS BID, BUT THAT MR. AYER DID NOT STATE THE NATURE OF THE MISTAKE.

BY LETTER DATED JUNE 23, 1961, WHICH WAS RECEIVED ON JUNE 26, 1961, THE CORPORATION ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THAT IT HAD FAILED TO INCLUDE IN ITS BID PRICE THE COST OF CONCRETE WORK ON FOUR OF THE RESIDENCES. THE CORPORATION STATED THAT IT HAD ESTIMATED THAT THE CONCRETE WORK FOR ONE RESIDENCE WOULD COST $1,730 AND THAT IN PREPARING ITS SUMMARY SHEET, IT FAILED TO MULTIPLY THIS SUM BY FIVE--- THE NUMBER OF RESIDENCES TO BE CONSTRUCTED--- BEFORE ENTERING THE COST OF THE CONCRETE WORK ON SUCH SHEET. THE CORPORATION STATED THAT THE COST OF THE CONCRETE WORK ON THE SUMMARY SHEET SHOULD HAVE BEEN SHOWN AS BEING $8,650 INSTEAD OF $1,730. THE CORPORATION REQUESTED THAT THE CONTRACT PRICE OF THE PROJECT BE INCREASED BY $7,421.70 TO COVER THE COST OF THE OMITTED CONCRETE WORK. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED ITS WORKSHEETS WHICH, THE CONTRACTING OFFICER STATES, SUBSTANTIATES THE ALLEGATION THAT AN ERROR WAS MADE BY THE CORPORATION IN ITS BID.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE ABSTRACT OF BIDS SHOWS THAT THE 11 OTHER BIDS RANGED FROM $87,998 TO $122,352. AT THE TIME OF ACCEPTANCE THE CONTRACTING OFFICER HAD RECEIVED NO NOTICE OR CLAIM OF ERROR AND, IN VIEW OF THE WIDE RANGE IN THE PRICES RECEIVED WE CANNOT HOLD THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN THE BID. ALTHOUGH, AFTER AWARD, THE CORPORATION FURNISHED ITS WORKSHEETS IN SUPPORT OF ITS ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT PRIOR TO AWARD THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE CORPORATION IN COMPUTING ITS BID PRICE. THE ACCEPTANCE OF THE BID, IN THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 CT.CL. 120, 163. WHILE IT MAY BE THAT AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE BIDDER'S OWN 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. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL-- - AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505; 20 COMP. GEN. 652; AND 26 ID. 415.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS NO LEGAL BASIS FOR RELIEVING ARCADIA BUILDERS, INC., FROM LIABILITY FOR CONSTRUCTING THE FIVE RESIDENCES REQUIRED BY THE SPECIFICATIONS AT ITS BID PRICE, OR FOR INCREASING THE CONSIDERATION THEREFOR.