B-149574, AUG. 24, 1962

B-149574, AUG. 24, 1962

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JULY 27, 1962, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING OUR DECISION AS TO THE ACTION TO BE TAKEN CONCERNING A MISTAKE IN BID ALLEGED BY CLIFFORD GARTZKA, 607 BETH DRIVE, GREAT FALLS, MONTANA, AFTER THE AWARD TO HIM OF CONTRACT NO. 14-16-0001-377, UNDER DATE OF JUNE 12, 1962, FOR CERTAIN CONSTRUCTION WORK AT THE BENTON LAKE NATIONAL WILDLIFE REFUGE, GREAT FALLS, MONTANA.

BY INVITATION FOR BIDS NO. SFW1-384, ISSUED BY THE REGIONAL DIRECTOR, BUREAU OF SPORT FISHERIES AND WILDLIFE, PORTLAND 8, OREGON, BIDS WERE INVITED FOR THE CONSTRUCTION OF TWO FRAME RESIDENCES, SEWAGE DISPOSAL SYSTEMS, AND MISCELLANEOUS WATER PIPING AT THE BENTON LAKE NATIONAL WILDLIFE REFUGE, THE BIDS TO BE OPENED AT 2:00 P.M. ON JUNE 5, 1962. WAS REPORTED THAT THE INVITATION FOR BIDS WAS CIRCULATED TO 114 PROSPECTIVE BIDDERS BUT THAT ONLY THREE BIDS WERE RECEIVED, THE LOWEST BEING THAT SUBMITTED BY MR. GARTZKA AT THE BID PRICE OF $39,453, WHICH WAS LOWER BY $8,241 THAN THE BID SUBMITTED BY THE NEXT LOW BIDDER, LEE C. NELSON, INC., AT THE PRICE OF $47,694. THE HIGHEST BID WAS SUBMITTED BY DICK OLSON CONSTRUCTORS, INC., AT THE PRICE OF $55,357.10, OR $7,663.10 ABOVE THE PRICE SUBMITTED BY LEE C. NELSON, INC. THE ENGINEERS' ESTIMATE WAS $47,000.

IT WAS STATED IN THE LETTER OF JULY 27, 1962, THAT THE CONTRACTING OFFICER DID NOT BELIEVE THAT THE LOW BID WAS SO OUT OF LINE WITH THE OTHER BIDS AS TO CONSTITUTE CONSTRUCTIVE NOTICE OF ERROR REQUIRING HIM TO REQUEST VERIFICATION BEFORE AWARD. ALSO, IT WAS POINTED OUT BY YOUR DEPARTMENT THAT THE DIFFERENCE BETWEEN THE LOW BID, THE SECOND BID, AND THE HIGH BID ARE NOT UNUSUAL, PARTICULARLY IN CONSTRUCTION WORK IN A REMOTE AREA.

UNDER DATE OF JUNE 12, 1962, A CONTRACT WAS AWARDED TO MR. GARTZKA FOR THE CONSTRUCTION WORK IN QUESTION AT HIS BID PRICE OF $39,453. IT WAS REPORTED THAT AT 2:30 P.M. ON JUNE 14, 1962, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM MR. GARTZKA ALLEGING AN ERROR IN BID, IT BEING CLAIMED BY MR. GARTZKA THAT HE HAD OMITTED ANY AMOUNT FOR PROFIT IN SETTING UP HIS ESTIMATE SHEET. MR. GARTZKA WAS ADVISED THAT A CONTRACT HAD BEEN AWARDED TO HIM AND THAT SUPPORTING DOCUMENTS AS EVIDENCE OF HIS ALLEGED ERROR SHOULD BE SUBMITTED. THIS WAS DONE, AND AN EXAMINATION OF THE CONTRACTOR'S WORKSHEET SUPPORTS HIS ALLEGATION THAT HIS BID FAILED TO INCLUDE $1,320 FOR CERTAIN CABINETS AND PROFIT OF $3,945.

HOWEVER, THE PRIMARY QUESTION INVOLVED IS NOT WHETHER THE CONTRACTOR MADE AN ERROR IN HIS BID BUT WHETHER ACCEPTANCE OF HIS BID CREATED A VALID AND BINDING CONTRACT. AT THE TIME OF ACCEPTANCE THE CONTRACTING OFFICER HAD RECEIVED NO NOTICE OR CLAIM OF ERROR. THE THREE BIDS RECEIVED WERE FAIRLY EVENLY SPACED, WITH THE LOW BID BEING CLOSER TO THE GOVERNMENT ESTIMATE THAN THE HIGH BID. IN THE CIRCUMSTANCES WE AGREE WITH THE ADMINISTRATIVE CONCLUSION THAT THE AMOUNT OF MR. GARTZKA'S BID WAS NOT SO LOW AS TO HAVE PUT THE CONTRACTING OFFICER ON NOTICE OF THE LIKELIHOOD OF ERROR THEREIN. ACCEPTANCE OF THE BID WAS IN GOOD FAITH AND WITHOUT NOTICE, ACTUAL OR CONSTRUCTIVE, OR ANY ERROR. THE RESULTING CONTRACT, IN OUR OPINION, IS THEREFORE VALID AND BINDING, AND FIXES THE RIGHTS AND OBLIGATIONS OF THE PARTIES. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505 (PA.). MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION IS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S OWN NEGLIGENCE OR OVERSIGHT AND SINCE THE ERROR WAS UNILATERAL--- NOT MUTUAL--- THE CONTRACTOR IS NOT ENTITLED TO RELIEF. SEE 20 COMP. GEN. 652, AND 26 ID. 415.

UPON ACCEPTANCE OF MR. GARTZKA'S BID, THE RIGHT VESTED IN THE GOVERNMENT TO RECEIVE PERFORMANCE STRICTLY IN ACCORDANCE WITH ITS TERMS, AND, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER THAT RIGHT WITHOUT ADEQUATE COMPENSATION. SEE SIMPSON V. UNITED STATES, 172 U.S. 372; UNITED STATES V. AMERICAN SALES CORPORATION 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY, 49 CT.CL. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 ID. 584, 607.

THE ENCLOSURES TO THE LETTER OF JULY 27, 1962, ARE RETURNED HEREWITH, AND YOU ARE ADVISED THAT UNDER THE FACTS DISCLOSED BY THE RECORD IN THIS CASE WE CAN FIND NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICE ON ACCOUNT OF THE ALLEGED MISTAKE IN BID.