B-146386, SEP. 28, 1961

B-146386, SEP. 28, 1961

TO INDUSTRIAL CONTRACTING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 3, 1961, WITH ENCLOSURES, IN WHICH YOU REQUEST RELIEF ON BEHALF OF THE BETHLEHEM STEEL COMPANY, YOUR SUPPLIER, BECAUSE OF AN ERROR IT ALLEGES WAS MADE IN ITS QUOTATION TO YOU, WHICH QUOTATION WAS USED BY YOU IN PREPARING YOUR BID ON U.S. NAVY PROJECT, NBY-34648, SPEC. 34648/61, BULKHEAD AND REVETMENTS, U.S. NAVAL STATION, MAYPORT, FLORIDA, LETTING OF MARCH 28, 1961.

THE ADMINISTRATIVE REPORT AS TO THE FACTS IN THIS CASE HAS BEEN RECEIVED FROM THE DEPARTMENT OF THE NAVY. THE RECORD SHOWS THAT 11 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION COVERING THIS PROJECT. YOU SUBMITTED A BID IN THE AMOUNT OF $149,091 FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORM ALL WORK FOR SHEET PILE BULKHEAD AND REVETMENTS AT THE U.S. NAVAL STATION, MAYPORT, FLORIDA, IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, DRAWINGS, AND CONDITIONS FOR BID ITEM NO. 1. THE NEXT LOW BID, BY ARNOLD M. DIAMOND, INC., WAS $158,500, WITH OTHER BIDS IN PROPER ORDER BEING $159, 727; $165,236; $168,112.50; $169,395; $174,400; $176,219; $184,400; $189,929.82; AND $199,000.

THE RECORD FURTHER INDICATES THAT SINCE THE RANGE OF BIDS WAS NORMAL FOR THIS TYPE OF PROJECT, THE OFFICER IN CHARGE OF CONSTRUCTION NEITHER NOTICED NOR HAD REASON TO SUSPECT ANY ERROR IN YOUR BID, AND AWARD IN THE LUMP SUM OF $149,091 WAS MADE TO YOU, AS LOW CONFORMING BIDDER, ON APRIL 3, 1961. SUBSEQUENTLY, REPRESENTATIVES OF YOUR FIRM AND BETHLEHEM STEEL COMPANY VISITED THE OFFICER IN CHARGE OF CONSTRUCTION AND ADVISED HIM THAT THERE WAS AN ERROR OF APPROXIMATELY $8,000 IN YOUR BID DUE TO AN ERROR OF BETHLEHEM STEEL COMPANY IN ITS QUOTATION TO YOU. THE OFFICER IN CHARGE ADVISED YOU AND YOUR SUPPLIER THAT HE HAD NO AUTHORITY TO GRANT RELIEF AFTER AN AWARD OF A CONTRACT HAD BEEN MADE.

YOUR PROPOSAL IS FOR MODIFICATION OF THE CONTRACT BY INCREASING THE CONTRACT PRICE FROM $149,091 TO $156,505.65, AN INCREASE OF $7,414.65, BECAUSE OF YOUR SUPPLIER'S QUOTATION ERROR, AS ALLEGED.

IN THE INSTANT CASE, THERE WAS NO MUTUAL MISTAKE. IN FACT, THE RECORD ESTABLISHES THAT THERE WAS NO MISTAKE, AS SUCH, IN YOUR BID, THE BID BEING EXACTLY AS INTENDED BY YOU. THE ALLEGED MISTAKE WAS ONE ON THE PART OF YOUR SUPPLIER ONLY, WHICH IN THE CIRCUMSTANCES AFFORDS NO GROUNDS FOR RELIEF. SEE 31 COMP. GEN. 479. MOREOVER, THE RECORD SHOWS THAT NOTWITHSTANDING YOUR ALLEGATION OF MISTAKE AND REQUEST FOR RELIEF, THE CONTRACT IS APPROXIMATELY 75 PERCENT COMPLETED AND THAT PAYMENT IN THE AMOUNT OF $99,728 HAS BEEN MADE TO YOU. IN THIS CONNECTION, SEE THE CASE OF BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., INC., 133 F.2D 399, WHEREIN THE COURT STATED THAT THE APPELLANT COULD NOT PERFORM THE CONTRACT AND THEN REPUDIATE THE CONTRACT AND RECOVER AS IF THERE HAD BEEN NONE.