B-148351, MAR. 26, 1962

B-148351: Mar 26, 1962

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED MARCH 5. 550 DUE TO AN ERROR HE ALLEGES HE MADE IN HIS BID ON WHICH CONTRACT NO. 14-10-0426-596 IS BASED. THE CONTRACT WAS DIVIDED INTO FOUR BID ITEMS. THREE OF WHICH WERE LUMP SUM ITEMS. THE CONTRACTOR'S ALLEGED ERROR WAS THE MISPLACEMENT OF A DECIMAL POINT IN COMPUTING THE QUANTITY OF THIS MATERIAL TO BE PLACED. WITH THE RESULT THAT HIS ESTIMATE WAS MADE ON THE BASIS OF 80 SQUARE YARDS RATHER THAN THE APPROXIMATELY 750 SQUARE YARDS REQUIRED BY THE CONTRACT SPECIFICATIONS. WRITTEN NOTIFICATION TO THE CONTRACTING OFFICER WAS BY LETTER DATED SEPTEMBER 11. THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER THE COMPANY MADE A BONA FIDE MISTAKE IN ITS BID BUT WHETHER A VALID CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID.

B-148351, MAR. 26, 1962

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED MARCH 5, 1962, WITH ENCLOSURES, FROM THE CERTIFYING OFFICER, NATIONAL PARK SERVICE, YOUR REFERENCE F5023-ABF, RELATIVE TO THE CLAIM OF JOE E. VENNE IN THE AMOUNT OF $4,550 DUE TO AN ERROR HE ALLEGES HE MADE IN HIS BID ON WHICH CONTRACT NO. 14-10-0426-596 IS BASED.

THE CONTRACT WAS DIVIDED INTO FOUR BID ITEMS, THREE OF WHICH WERE LUMP SUM ITEMS. THE CONTRACTOR ALLEGES AN ERROR IN HIS ESTIMATE ON ITEM "B," ONE AMPHITHEATER, INCLUDING THE PLACEMENT OF A QUANTITY OF ASPHALTIC CONCRETE. THE CONTRACTOR'S ALLEGED ERROR WAS THE MISPLACEMENT OF A DECIMAL POINT IN COMPUTING THE QUANTITY OF THIS MATERIAL TO BE PLACED, WITH THE RESULT THAT HIS ESTIMATE WAS MADE ON THE BASIS OF 80 SQUARE YARDS RATHER THAN THE APPROXIMATELY 750 SQUARE YARDS REQUIRED BY THE CONTRACT SPECIFICATIONS.

THE CONTRACTOR ALLEGES THAT HE DID NOT DISCOVER HIS ERROR UNTIL SOME TIME IN AUGUST, 1961, AND IMMEDIATELY NOTIFIED THE PROCUREMENT OFFICE. WRITTEN NOTIFICATION TO THE CONTRACTING OFFICER WAS BY LETTER DATED SEPTEMBER 11, 1961, APPROXIMATELY ELEVEN MONTHS AFTER AWARD OF THE CONTRACT. AT THAT TIME THE CONTRACT HAD BEEN APPROXIMATELY EIGHTY FIVE PERCENT PERFORMED.

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER THE COMPANY MADE A BONA FIDE MISTAKE IN ITS BID BUT WHETHER A VALID CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163.

IT IS CLEAR FROM THE RECORD THAT THE ERROR IN BID MADE BY MR. VENNE WAS DUE SOLELY TO HIS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT MAY HAVE BEEN MADE WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE DOES NOT ENTITLE MR. VENNE TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249.

THE RECORD, INCLUDING THE ABSTRACT OF BIDS, FURTHER SUPPORTS THE CONTRACTING OFFICER'S POSITION THAT THERE WAS NOTHING IN THE BIDS TO PUT HIM ON NOTICE OF POSSIBLE ERROR IN MR. VENNE'S BID.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR PAYMENT OF THE AMOUNT CLAIMED.