B-148842, MAY 18, 1962

B-148842: May 18, 1962

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FEDERAL AVIATION AGENCY: REFERENCE IS MADE TO YOUR LETTER OF MAY 5. SIX BIDS WERE RECEIVED AND THEY WERE OPENED ON JANUARY 22. THE GOVERNMENT'S COST ESTIMATES FOR THE PARTICULAR JOBS WERE IN THE AMOUNTS OF $37. AFTER RECEIPT OF CONFIRMATION THAT THE LOW BIDDER'S INTENDED UNIT PRICE FOR EXCAVATION WORK WAS $1.60 PER CUBIC YARD. THE CONTRACT FOR PERFORMANCE OF ALL WORK DESCRIBED IN THE INVITATION WAS AWARDED TO WELBILT CONSTRUCTION. I WAS ISSUED TO THE CONTRACTOR ON FEBRUARY 5. ADVISING HIM THAT IN PREPARING THE BID THERE WAS OMITTED THE COST OF THE WAVEGUIDE MATERIAL ON ITEM NO. 3.01-3 OF SCHEDULE NO. I. THE CONTRACTOR REQUESTED PERMISSION TO WITHDRAW THE BID BUT WAS INFORMED THAT THIS COULD NOT BE DONE.

B-148842, MAY 18, 1962

TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 5, 1962, REQUESTING A DECISION AS TO WHETHER THE PRICE OF CONTRACT NO. FA-EA-2705, DATED JANUARY 31, 1962, WITH WELBILT CONSTRUCTION, INC., NEWTON, MASSACHUSETTS, MAY BE INCREASED BY THE SUM OF $3,840 ON ACCOUNT OF AN APPARENT MISTAKE IN THE CONTRACTOR'S BID ON THE WORK COVERED BY THE CONTRACT.

ON JANUARY 8, 1962, THE FEDERAL AVIATION AGENCY, EASTERN REGION, FEDERAL BUILDING, NEW YORK INTERNATIONAL AIRPORT, JAMAICA, NEW YORK, ISSUED INVITATION FOR BIDS NO. 1-62-124B1, REQUESTING BIDS ON TWO SCHEDULES OF WORK INVOLVING PROPOSED CONSTRUCTION OF A DIRECTIONAL LOCALIZER FACILITY, GLIDE SLOPE, MIDDLE MARKER AND COMPASS LOCATOR TO SERVE RUNWAY 33L AT THE GENERAL EDWARD L. LOGAN INTERNATIONAL AIRPORT, BOSTON, MASSACHUSETTS. THE GOVERNMENT RESERVED THE RIGHT TO MAKE THE AWARD ON THE BASIS OF THE INDIVIDUAL SCHEDULES OR ON THE BASIS OF A COMBINATION OF THE TWO SCHEDULES. SIX BIDS WERE RECEIVED AND THEY WERE OPENED ON JANUARY 22, 1962. WELBILT CONSTRUCTION, INC., SUBMITTED THE LOWEST BID UNDER EACH SCHEDULE, HAVING QUOTED THE RESPECTIVE TOTAL PRICES OF $34,152 AND $8,369 ON SCHEDULES NOS. I AND II. THE NEXT LOWEST BIDDER QUOTED PRICES OF $38,399.50 AND $10,241.70, AND THE GOVERNMENT'S COST ESTIMATES FOR THE PARTICULAR JOBS WERE IN THE AMOUNTS OF $37,840.50 AND $11,737. AFTER RECEIPT OF CONFIRMATION THAT THE LOW BIDDER'S INTENDED UNIT PRICE FOR EXCAVATION WORK WAS $1.60 PER CUBIC YARD, INSTEAD OF $160 PER CUBIC YARD AS SHOWN IN THE BID, THE CONTRACT FOR PERFORMANCE OF ALL WORK DESCRIBED IN THE INVITATION WAS AWARDED TO WELBILT CONSTRUCTION, INC.

NOTICE TO PROCEED WITH THE WORK DESCRIBED IN SCHEDULE NO. I WAS ISSUED TO THE CONTRACTOR ON FEBRUARY 5, 1962, AND ON THE SAME DATE THE CONTRACTOR TELEPHONED THE CONTRACTING OFFICER, ADVISING HIM THAT IN PREPARING THE BID THERE WAS OMITTED THE COST OF THE WAVEGUIDE MATERIAL ON ITEM NO. 3.01-3 OF SCHEDULE NO. I. THE CONTRACTOR REQUESTED PERMISSION TO WITHDRAW THE BID BUT WAS INFORMED THAT THIS COULD NOT BE DONE. SUBSEQUENTLY, AT A MEETING ON FEBRUARY 6, 1962, THE CONTRACTING OFFICER SUGGESTED THAT PROOF OF ERROR IN THE BID BE SUBMITTED. BY LETTER DATED FEBRUARY 8, 1962, THE CONTRACTOR REQUESTED THAT THE CONTRACT PRICE ON SCHEDULE NO. I BE INCREASED FROM $34,152 TO $37,992.

THE CLAIMED INCREASE OF $3,840 WAS SUBSTANTIATED BY WORKSHEETS USED IN THE PREPARATION OF THE BID AND BY PRICES QUOTED BY SUPPLIERS OF SHEET METAL WAVEGUIDE MATERIAL AND ACCESSORIES.

THE CONTRACTING OFFICER RECOMMENDED THAT THE CONTRACT PRICE BE INCREASED BY THE SUM OF $3,840 BUT STATED IN HIS REPORT ON THE MATTER THAT HE WAS NOT ON CONSTRUCTIVE NOTICE OF THE MISTAKE IN BID PRIOR TO AWARD OF THE CONTRACT. THE CONTRACTOR HAD ALLEGED THAT BECAUSE OF THE SMALL PRINT ON THE GOVERNMENT'S DRAWINGS IT FAILED TO NOTICE THAT THE MATERIAL WAS NOT TO BE SUPPLIED BY THE GOVERNMENT. NOTATIONS ON THE SMALL SCALE DRAWINGS WERE IN FINE PRINT AND THE CONTRACT SPECIFICATIONS INDICATED THAT VARIOUS MATERIALS WOULD BE FURNISHED BY THE GOVERNMENT. HOWEVER, THE SPECIFICATIONS PROVIDE, IN PERTINENT PART, THAT: "THE CONTRACTOR SHALL FURNISH AND INSTALL THE SHEET METAL WAVEGUIDE AND SUCH OTHER MATERIAL AS MAY BE SPECIFIED ON THE ACCOMPANYING DRAWINGS.' HENCE, IT IS APPARENT THAT THE MISTAKE IN BID WAS DUE SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND NOT TO ANY FAULT ON THE PART OF THE GOVERNMENT.

EXCEPT FOR THE OBVIOUS ERROR ON THE FACE OF THE CONTRACTOR'S BID CONCERNING REQUIRED EXCAVATION WORK, WHICH ERROR WAS ALLOWED TO BE CORRECTED BEFORE AWARD TO AGREE WITH THE CONTRACTOR'S EXTENDED TOTAL PRICE FOR THAT ITEM OF SCHEDULE NO. I, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER HAD ANY REASON TO BELIEVE THAT ANY MISTAKE IN BID PRICE HAD BEEN MADE BY THE CONTRACTOR, INASMUCH AS THE CONTRACTOR'S TOTAL PRICES FOR SCHEDULES NOS. I AND II WERE NOT OUT OF LINE WITH THE GOVERNMENT'S COST ESTIMATES OR THE TOTAL PRICES QUOTED BY THE SECOND LOWEST BIDDER. WOULD APPEAR, THEREFORE, THAT THE CONTRACTOR'S BID WAS ACCEPTED IN ENTIRE GOOD FAITH AND THAT THERE WAS CONSUMMATED BY SUCH ACCEPTANCE A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE OGDAN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505.

THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED BY THE CONTRACTOR IN RESPONSE TO INVITATION NO. 1-62-124B1 WAS THAT OF THE CONTRACTOR. FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 CT.CL. 120, 163. WHILE IT MAY BE THAT THE CONTRACTOR FAILED TO INCLUDE THE COST OF CERTAIN MATERIAL WHEN COMPUTING ITS BID PRICE ON SCHEDULE NO. I, THE MISTAKE WAS UNILATERAL--- NOT MUTUAL--- AND THE FACTS OF THE CASE ARE NOT SUCH AS TO INDICATE THAT THE CONTRACTING OFFICER MUST BE PRESUMED TO HAVE KNOWN THAT THE MISTAKE OCCURRED AND SOUGHT TO TAKE ADVANTAGE THEREOF.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO JUSTIFY THE GRANTING OF ANY RELIEF TO THE CONTRACTOR ON ACCOUNT OF THE MISTAKE INVOLVED. SEE 20 COMP. GEN. 652; 26 ID. 415; 40 ID. 326 AND 684.