B-149829, DEC. 28, 1962

B-149829: Dec 28, 1962

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ESQUIRE: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31. 467.86 BECAUSE OF AN ERROR IN THE BID UPON WHICH CONTRACT AF 42/600/-21608 IS BASED. BIDDERS WERE TO STATE THEIR BID PRICES IN SCHEDULE "C" OF THE INVITATION. EACH NUMBERED ITEM WAS FOLLOWED BY A DESCRIPTION OF THE ITEM. THERE WAS A SPACE IN WHICH TO WRITE THE "TOTAL BASE BID.'. THERE WAS LISTED NINE ADDITIONAL ITEMS UNDER THE HEADING. THERE WERE INSERTED UNIT PRICES FOR THOSE ITEMS. " THERE WAS WRITTEN "$556. THERE WERE UNIT PRICES FOR THOSE ITEMS. EIGHT OTHER BIDS WERE SUBMITTED. THE TOTAL BASE BID OFFERS OF THE EIGHT OTHER BIDDERS WERE $578. IT WAS DECIDED THAT IN MAKING AN AWARD CERTAIN ADDITIVE ALTERNATE ITEMS WOULD BE INCLUDED ALONG WITH THE BASE BID.

B-149829, DEC. 28, 1962

TO BRYCE E. ROE, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1962, REQUESTING, ON BEHALF OF CULP CONSTRUCTION COMPANY, AN ALLOWANCE OF $91,467.86 BECAUSE OF AN ERROR IN THE BID UPON WHICH CONTRACT AF 42/600/-21608 IS BASED.

THE INVITATION FOR BIDS SOLICITED BIDS FOR THE REHABILITATION AND IMPROVEMENT OF 350 WHERRY HOUSING UNITS AT HILL AIR FORCE BASE, UTAH. BIDDERS WERE TO STATE THEIR BID PRICES IN SCHEDULE "C" OF THE INVITATION. SCHEDULE "C" FIRST SET OUT TEN NUMBERED ITEMS. EACH NUMBERED ITEM WAS FOLLOWED BY A DESCRIPTION OF THE ITEM, THE ESTIMATED QUANTITY, THE UNIT OF MEASURE AND A SPACE IN WHICH TO WRITE THE PRICE PER UNIT. THE NEXT SIX ITEMS, NUMBERED 11 THROUGH 16 IN THE SCHEDULE, CONTAINED AN ITEM DESCRIPTION, A NUMERICAL QUANTITY AND NOTHING ELSE. IMMEDIATELY BELOW ITEM 16, THERE WAS A SPACE IN WHICH TO WRITE THE "TOTAL BASE BID.' THEREAFTER, THERE WAS LISTED NINE ADDITIONAL ITEMS UNDER THE HEADING, ADDITIVE ALTERNATES.' EACH OF THESE ITEMS, NUMBERED 17 THROUGH 25, INCLUDED AN ITEM DESCRIPTION, A RANGE IN QUANTITY, AND A SPACE IN WHICH TO WRITE THE PRICE PER UNIT.

CULP CONSTRUCTION COMPANY SUBMITTED A BID ON SCHEDULE "C.' IN THE SPACES PROVIDED AFTER EACH OF THE FIRST TEN ITEMS, THERE WERE INSERTED UNIT PRICES FOR THOSE ITEMS; IN THE SPACE FOLLOWING ,TOTAL BASE BID," THERE WAS WRITTEN "$556,824.00; " AND FINALLY, IN THE SPACES PROVIDED AFTER THE ADDITIVE ALTERNATE ITEMS, THERE WERE UNIT PRICES FOR THOSE ITEMS.

IN ADDITION TO THAT OF THE CULP CONSTRUCTION COMPANY, EIGHT OTHER BIDS WERE SUBMITTED. THE TOTAL BASE BID OFFERS OF THE EIGHT OTHER BIDDERS WERE $578,585, $592,088, $598,190, $682,000, $687,154.44, $719,000, $759,000 AND $797,482. APPARENTLY BECAUSE OF THE FAVORABLE PRICES RECEIVED, IT WAS DECIDED THAT IN MAKING AN AWARD CERTAIN ADDITIVE ALTERNATE ITEMS WOULD BE INCLUDED ALONG WITH THE BASE BID.

UPON EXAMINATION OF THE PRICES QUOTED BY CULP CONSTRUCTION COMPANY ON THE ADDITIVE ALTERNATES, IT WAS OBSERVED THAT ITS UNIT PRICES OF $14.34 ON ITEMS 17 THROUGH 20 WERE CONSIDERABLY LOWER THAN THE NEXT TWO LOWEST BIDS IN THE AMOUNTS OF $1,714 AND $1,733 RECEIVED ON THE SAME ITEMS. THE COMPANY WAS REQUESTED TO VERIFY ITS BID. IT ADVISED THAT IN TRANSFERRING ITS INTENDED PRICES OF $1,434 FROM THE WORKSHEET TO THE BIDDING SCHEDULE IT MISPLACED THE DECIMAL POINTS AND IN SUPPORT OF ITS CONTENTION IT SUBMITTED ITS ORIGINAL WORKSHEETS. ON THE BASIS OF THE INFORMATION AND DATA FURNISHED BY THE BIDDER, CORRECTION OF THE ITEMS IN QUESTION WAS AUTHORIZED AND AN AWARD WAS MADE IN THE TOTAL AMOUNT OF $623,326 TO INCLUDE ADDITIVE ALTERNATES 20 AND 25.

ABOUT A MONTH AFTER THE CONTRACT WAS AWARDED, THE CONTRACTOR ALLEGED THAT IT HAD MISUNDERSTOOD SCHEDULE "C" OF THE INVITATION WITH THE RESULT THAT THE FIGURE ENTERED ON THE SCHEDULE FOR THE TOTAL BASE BID DID NOT INCLUDE ITEMS 1 THROUGH 10. IT IS CONTENDED ON THE CONTRACTOR'SBEHALF THAT THE INVITATION WAS SO AMBIGUOUS AS TO LEAD THE CONTRACTOR TO BELIEVE THAT ITEMS 1 THROUGH 10 WERE NOT TO BE INCLUDED IN THE TOTAL BASE BID AND THAT THE ORIGINAL WORKSHEETS THAT WERE PRESENTED TO THE GOVERNMENT TO SUPPORT THE ERROR MADE ON ITEMS 17 THROUGH 20 WERE CLEAR AS TO THE CONTRACTOR'S MISUNDERSTANDING SO THAT PRIOR TO AWARD THE GOVERNMENT MUST HAVE KNOWN OF THE CONTRACTOR'S OMISSION IN FIGURING THE TOTAL BASE BID. IT IS REQUESTED THEREFORE THAT THE CONTRACTOR BE ALLOWED AS AN ADDITIONAL AMOUNT THE TOTAL OF ITEMS 1 THROUGH 10.

A REVIEW OF THE INVITATION FOR BIDS SHOWS THAT NOT ONLY DID THE PARAGRAPH JUST PRECEDING THE LISTING OF INVITATION ITEMS IN SCHEDULE "C" DESCRIBE THE "BASIC ITEMS" THAT THE CONTRACTOR WAS TO PERFORM AS INCLUDING ITEMS "1 THROUGH 16," BUT SECTION A-03 IN THE "STATEMENT OF WORK," WHICH WAS A PART OF THE INVITATION FOR BIDS, STATED SPECIFICALLY THAT THE "BASE BID SHALL INCLUDE REPAIR AND DEFICIENCY CORRECTION ITEMS, 1 THROUGH 10, AS LISTED IN SCHEDULE "C" AND ITEMS 11 THROUGH 16 * * *.' THEREFORE, THE INVITATION WAS CLEAR AS TO THE INTENTION OF THE GOVERNMENT AND THE CONTRACTOR'S FAILURE TO INCLUDE ITEMS 1 THROUGH 10 IN THE TOTAL BASE BID IN THOSE CIRCUMSTANCES MUST BE ATTRIBUTED TO THE CONTRACTOR'S OVERSIGHT OR FAILURE TO BECOME COMPLETELY FAMILIAR WITH THE INVITATION REQUIREMENTS PRIOR TO THE SUBMISSION OF ITS PROPOSAL.

WHILE IT MAY BE THAT IF THE CONTRACTING PERSONNEL HAD DIRECTED THEIR ATTENTION TO AN OVERALL AUDIT OF THE WORKSHEETS SUBMITTED BY THE CONTRACTOR WITH A VIEW TOWARD ASCERTAINING PRECISELY HOW THE TOTAL BASE BID WAS FIGURED, INSTEAD OF THE MORE LIMITED INVESTIGATION THAT WAS MADE, THE FACT THAT THE TOTAL BASE BID DID NOT INCLUDE THE PRICES FOR ITEMS 1 THROUGH 10 MIGHT HAVE BEEN DISCOVERED. HOWEVER, THE RECORD DOES NOT DISCLOSE THAT ANY CONTRACTING PERSONNEL HAD ACTUAL KNOWLEDGE OF THE OMISSION NOR WAS THERE ANY DUTY OR RESPONSIBILITY ON THEIR PART TO INQUIRE INTO THE WORKSHEETS BEYOND VERIFYING THE SUSPECTED ERROR AND THE UNIT PRICE THAT WAS INTENDED, PARTICULARLY SINCE THE UNIT PRICE ITEM INVOLVED WAS NOT TO BE INCLUDED IN THE TOTAL BASE BID, AND SINCE THE TOTAL BASE BID WAS REGULAR ON ITS FACE AND IN LINE WITH THE OTHER TOTAL BASE BIDS RECEIVED AND THEREFORE FURNISHED NO REASON TO SUSPECT ANY ERROR THEREIN THAT MIGHT REQUIRE SOME INQUIRY TO BE MADE.

THUS, SINCE NO ERROR IN THE TOTAL BID WAS ALLEGED UNTIL AFTER AWARD, THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. FURTHER, THE ERROR THAT WAS MADE WAS UNILATERAL; THEREFORE, THE CONTRACTOR IS NOT ENTITLED TO ANY REDRESS. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259; AND SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, NO LEGAL BASIS EXISTS FOR THE ADJUSTMENT THAT HAS BEEN REQUESTED AND IT IS THEREFORE DENIED.