B-148291, MAR. 14, 1962

B-148291: Mar 14, 1962

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H. BENESH MAY HAVE HIS CONTRACT PRICE INCREASED IN THE AMOUNT OF $1. WHICH OFFERED TO COMPLETE THE WORK WITHIN 12 CALENDAR DAYS AT THE FIRM PRICE OF $1970 WAS ACCEPTED ON SEPTEMBER 25. WHICH WAS BASED ON THE NUMBER OF MAN HOURS WORKED. BENESH CONTENDS THAT HE ASSUMED THAT HIS BID PRICE WAS ACCEPTED NOT AS A FIRM PRICE BUT RATHER AS AN ESTIMATE BASED ON A PRICE OF $160 PER DAY FOR AN ESTIMATED 12 CALENDAR DAYS. IT WAS EQUALLY DIFFICULT IN BOTH CASES TO DETERMINE IN ADVANCE THE AMOUNT OF TIME WHICH WOULD BE REQUIRED TO DO THE WORK. WOULD HAVE INDICATED TO THE CONTRACTING OFFICER THAT BENESH INTENDED TO BID ANYTHING OTHER THAN A FIRM PRICE OF $1. BENESH ALSO ARGUES THAT ONE REASON WHY HE TOOK LONGER THAN 12 DAYS TO COMPLETE THE WORK WAS THAT HE FOUND IT NECESSARY TO ASSEMBLE.

B-148291, MAR. 14, 1962

TO MR. JAMES N. O-NEIL, DIRECTOR, SUPPLY MANAGEMENT SERVICE, VETERANS ADMINISTRATION:

YOUR LETTER OF FEBRUARY 28, 1962, FILE REFERENCE 031C, REQUESTS OUR DECISION AS TO WHETHER OR NOT L. H. BENESH MAY HAVE HIS CONTRACT PRICE INCREASED IN THE AMOUNT OF $1,150.

ON SEPTEMBER 22, 1961, BENESH SUBMITTED THE SOLE BID FOR REPAIRING THE EXTERIOR OF A COAL SILO. THIS BID, WHICH OFFERED TO COMPLETE THE WORK WITHIN 12 CALENDAR DAYS AT THE FIRM PRICE OF $1970 WAS ACCEPTED ON SEPTEMBER 25, 1961.

AFTER COMPLETING THE WORK IN 19 1/2 THREE-MAN 8-HOUR DAYS, BENESH SUBMITTED A BILL ON OCTOBER 11, 1961, WHICH WAS BASED ON THE NUMBER OF MAN HOURS WORKED. THIS BILL EXCEEDED WHAT BENESH REFERRED TO AS THE "ORIGINAL ESTIMATE" OF $1,970 BY $1,150. IN HIS LETTER OF DECEMBER 15, 1961, BENESH CONTENDS THAT HE ASSUMED THAT HIS BID PRICE WAS ACCEPTED NOT AS A FIRM PRICE BUT RATHER AS AN ESTIMATE BASED ON A PRICE OF $160 PER DAY FOR AN ESTIMATED 12 CALENDAR DAYS, PLUS $50 FOR MISCELLANEOUS MATERIALS. POINTS OUT THAT UNDER AN EARLIER AWARD OF AUGUST 31, 1961, FOR THE REPAIR OF THE INTERIOR OF THE SILO, HE NOTED ON HIS BID "$160.00/8 HR DAY ESTIMATED 12 DAYS," AND STATES THAT SINCE THE OUTSIDE WORK INVOLVED THE SAME CONDITIONS AS THE INSIDE WORK, IT WAS EQUALLY DIFFICULT IN BOTH CASES TO DETERMINE IN ADVANCE THE AMOUNT OF TIME WHICH WOULD BE REQUIRED TO DO THE WORK.

HOWEVER, NOTHING ON THE FACE OF HIS BID FOR THE EXTERIOR WORK, ALTHOUGH SUBMITTED ON THE SAME BID FORM THAT HE USED IN BIDDING FOR THE INTERIOR WORK, WOULD HAVE INDICATED TO THE CONTRACTING OFFICER THAT BENESH INTENDED TO BID ANYTHING OTHER THAN A FIRM PRICE OF $1,970. MOREOVER, THE SPECIFICATIONS FOR THE BID ON THE INTERIOR WORK CALLED FOR "SUPERVISOR AND THREE WORKMEN, PRICE PER 8 HOUR DAY," WHILE THE SPECIFICATIONS ON THIS BID MERELY STATED: "LABOR TO INCLUDE SUPERVISOR AND 3 MEN.'

BENESH ALSO ARGUES THAT ONE REASON WHY HE TOOK LONGER THAN 12 DAYS TO COMPLETE THE WORK WAS THAT HE FOUND IT NECESSARY TO ASSEMBLE, MOVE, AND DISMANTLE THE SCAFFOLDING NEEDED TO DO THE OUTSIDE WORK. HE ALLEGES THAT THE SCAFFOLDING FOR THE INSIDE WORK WAS ASSEMBLED AND DISMANTLED BY OTHERS ON ANOTHER CONTRACT, IMPLYING THAT THIS WAS A SERVICE REQUIRED TO BE DONE BUT NOT CALLED FOR BY THE SPECIFICATIONS.

HOWEVER, THE SPECIFICATIONS OF THE CONTRACT IN THE INSTANT CASE CALL FOR "SERVICES, LABOR AND MATERIALS REQUIRED TO REPAIR EXTERIOR OF COAL SILO * * *.' THE MEANS BY WHICH THE SERVICES WERE TO BE ACCOMPLISHED WERE NOT SET FORTH IN THE CONTRACT, AND THE RECORD DOES NOT SHOW ANY REPRESENTATION BY THE GOVERNMENT THAT IT WOULD FURNISH ANY SUCH MEANS, E.G., SCAFFOLDING. THEREFORE, IT APPEARS THAT THE PRICE BID COVERED THE COST OF WHATEVER MEANS THE CONTRACTOR MIGHT CHOOSE TO EMPLOY IN SATISFACTORILY COMPLETING THE CONTRACT.

BENESH WAS NOT REQUIRED TO, AND DID NOT, PERFORM ANY WORK IN ADDITION TO THAT CALLED FOR IN THE SPECIFICATIONS OF HIS CONTRACT. MOREOVER, NOTHING IN THE TERMS OF THE CONTRACT JUSTIFIES HIS ASSUMPTION THAT THE GOVERNMENT WOULD FURNISH HIM ANY SERVICES THAT COULD BE USED IN PERFORMING THE CONTRACT.

ACCORDINGLY, WE CAN FIND NO LEGAL BASIS WHICH WOULD AUTHORIZE AN INCREASE IN THE FIRM BID PRICE ..END :