B-148248, MAR. 7, 1962

B-148248, MAR. 7, 1962

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 21, 1962, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DETERMINATION AS TO WHETHER ORNDORFF CONSTRUCTION COMPANY, INC., IS ENTITLED TO ADDITIONAL COMPENSATION BY VIRTUE OF AN ALLEGED MISTAKE IN BID ON CONTRACT NO. 14 10- 529-124 FOR THE CONSTRUCTION OF A VISITORS' CENTER AND CYCLORAMA BUILDING AT GETTYSBURG NATIONAL MILITARY PARK, GETTYSBURG, PENNSYLVANIA.

TEN BIDS WERE RECEIVED AND AWARD WAS MADE ON SEPTEMBER 30, 1959, TO ORNDORFF CONSTRUCTION COMPANY, INC., AS LOW BIDDER IN THE AMOUNT OF $687,349. THE OTHER BIDS RANGED FROM $735,720 TO $888,725. APPARENTLY THE FIRST NOTICE TO THE GOVERNMENT OF THE ALLEGED MISTAKE WAS BY LETTER TO THE GOVERNMENT OF THE ALLEGED MISTAKE WAS BY LETTER FROM THE CONTRACTOR DATED AUGUST 10, 1960, STATING THAT WHEN ACTUAL EXPENDITURES FOR LABOR WERE BEING COMPILED IN CONNECTION WITH THE POURING OF CONCRETE FOR CERTAIN RIBBED WALLS, EXCESSIVE COSTS WERE NOTED AND UPON CHECKING THE ORIGINAL WORK SHEETS IT WAS FOUND THAT A WALL AREA OF 19,116 SQUARE FEET HAD BEEN ERRONEOUSLY COMPUTED AS 1,910 SQUARE FEET RESULTING IN AN UNDERCHARGE OF $14,004, THE AMOUNT CLAIMED. WHICH WOULD CAUSE THE CONTRACTING OFFICER TO SUSPECT THAT AN ERROR HAD BEEN MADE, NOR WAS THE DIFFERENCE IN BID PRICES SUCH AS TO HAVE

IT DOES NOT APPEAR THAT THERE WAS ANYTHING ON THE FACE OF THE BID PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS UPON THE BIDDER (FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163) AND ANY ERROR THAT MAY HAVE BEEN MADE, BEING DUE SOLELY TO THE ACTION OF THE BIDDER AND THEREFORE UNILATERAL, WOULD NOT JUSTIFY RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

SINCE THERE IS NO EVIDENCE THAT THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ANY ERROR PRIOR TO MAKING THE AWARD, IT MUST BE CONCLUDED THAT THE BID WAS ACCEPTED IN GOOD FAITH, THEREBY FORMING A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. ACCORDINGLY THERE IS NO BASIS FOR THE PAYMENT OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE.