B-150068, OCT. 19, 1962

B-150068, OCT. 19, 1962

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1962, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY L. A. MANN, CONTRACTOR, TO HAVE BEEN MADE IN HIS BID ON WHICH CONTRACT NO. GS-04-B-7949 IS BASED.

THE PUBLIC BUILDINGS SERVICE, REGION 4, ATLANTA, GEORGIA, BY INVITATION DATED MAY 22, 1962, REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS FOR PERFORMING THE WORK REQUIRED FOR "SPACE RENOVATION," UNITED STATES POST OFFICE AND COURT HOUSE, GREENSBORO, NORTH CAROLINA, PROJECT NO. DC4-48-2- 043. IN RESPONSE L. A. MANN, CONTRACTOR, SUBMITTED A BID DATED JUNE 9, 1962, OFFERING TO PERFORM THE WORK FOR THE LUMP-SUM PRICE OF $45,830. THE ONLY OTHER RESPONSIVE BIDDER QUOTED A PRICE OF $67,818 AND IT IS REPORTED THAT THAT PRICE IS CONSIDERED EXCESSIVE FOR THE WORK INVOLVED. THE GOVERNMENT ESTIMATE FOR THE WORK WAS IN THE AMOUNT OF $56.500.

IN HIS REPORT OF AUGUST 16, 1962, THE CONTRACTING OFFICER STATES THAT MR. MANN'S BID WAS COMPARED WITH THE OFFICE ESTIMATE AND IT WAS NOTED THAT HE WAS ALLOWING HIMSELF AN UNUSUALLY LOW MARGIN FOR CONTINGENCIES, OVERHEAD AND PROFIT, AND THAT ON JUNE 19, 1962, MR. MANN WAS CONTACTED BY TELEPHONE IN REGARD TO HIS BID AND THAT DURING THE COURSE OF THE DISCUSSION MR. MANN STATED THAT HIS SURETY COMPANY HAD ALSO MENTIONED THE RANGE OF BIDDING TO HIM SUBSEQUENT TO THE BID OPENING BUT THAT HE HAD TOLD THE COMPANY THAT HE CONSIDERED HIS BID PRICE SUFFICIENT TO PERFORM THE REQUIRED WORK. IT ALSO IS STATED THAT MR. MANN WAS INFORMED AT THAT TIME THAT IF ANY DISCREPANCY WAS EVIDENT IN HIS BID, WRITTEN NOTICE OF THIS FACT MUST BE MADE TO THE CONTRACTING OFFICER IMMEDIATELY. THE BID OF MR. MANN WAS ACCEPTED ON JUNE 22, 1962.

BY LETTER DATED JULY 6, 1962, MR. MANN ADVISED THE CONTRACTING OFFICER THAT HE HAD MADE AN ERROR IN HIS BID IN THAT HE HAD FAILED TO INCLUDE THE COST OF CERTAIN ITEMS OF WORK IN HIS BID PRICE; THAT THE OMITTED ITEMS WOULD COST APPROXIMATELY $11,000 AND THAT IF HE WAS REQUIRED TO PERFORM THE WORK AT HIS BID PRICE HE WOULD LOSE APPROXIMATELY $7,000. WITH THIS LETTER MR. MANN SUBMITTED HIS ORIGINAL WORKSHEETS. IN A LETTER DATED JULY 13, 1962, MR. MANN REQUESTED THAT HIS BID PRICE BE INCREASED TO $54,235.17 TO COVER THE COST OF THE OMITTED ITEMS OF WORK.

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER MR. MANN MADE A BONA FIDE MISTAKE IN HIS BID BUT WHETHER A VALID CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID IN THIS CASE. 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, WHEREIN THE COURT OF CLAIMS STATED AS FOLLOWS:

"* * * THE PARTIES ARE DEALING AT ARMS LENGTH AND BIDDERS ARE PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN PERFORM THE WORK SPECIFIED AT A REASONABLE PROFIT. IF THEY FAIL TO DO SO, AS PLAINTIFF DID IN THIS CASE, THE GOVERNMENT CANNOT FOR THAT REASON BE HELD FOR THE RESULTING LOSS.'

IT IS CLEAR FROM THE RECORD THAT THE ERROR IN BID MADE BY MR. MANN IN THIS CASE WAS DUE TO HIS OWN NEGLECT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. MR. MANN WAS NEGLIGENT IN VERIFYING HIS BID WITHOUT AN ADEQUATE CHECK, ESPECIALLY WHEN HE WAS AWARE THAT HIS SURETY HAD ALSO QUESTIONED THE CORRECTNESS OF HIS BID PRICE FOR THE WORK. ANY ERROR THAT MAY HAVE BEEN MADE IN THE BID WAS UNILATERAL -- NOT MUTUAL- -- AND, THEREFORE, DOES NOT ENTITLE MR. MANN TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505. SEE, ALSO, 20 COMP. GEN. 652; AND 26 ID. 415. VIEW OF THE VERIFICATION OF THE BID, THE CONTRACTING OFFICER WAS NOT ONLY JUSTIFIED IN AWARDING THE CONTRACT TO MR. MANN ON THE BASIS THAT HIS BID WAS THE LOWEST RECEIVED,BUT WOULD HAVE FAILED IN HIS DUTY HAD HE DONE OTHERWISE. SEE CARNEGIE STEEL CO. V. CONNELY, 89 N.J.L. 1, 97 A. 774; SHRIMPTON MFG.CO.V. BRIN, 59 TEX.CIV.APP. 352, 125 S.W. 942; AND ALABAMA SHIRT AND TROUSER CO. V. UNITED STATES, 121 CT.CL. 313. THE FACT THAT MR. MANN CONFIRMED HIS BID PRIOR TO AWARD, PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR SOUGHT TO TAKE ADVANTAGE OF THE COMPANY. 27 COMP. GEN. 17.

THE ACCEPTANCE OF THE BID IN THIS CASE WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD--- AND UNDER THE CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES THERETO.

UPON ACCEPTANCE OF MR. MANN'S BID, THE RIGHT VESTED IN THE GOVERNMENT TO RECEIVE PERFORMANCE STRICTLY IN ACCORDANCE WITH ITS TERMS AND, IN THE ABSENCE OF STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE OR SURRENDER THAT RIGHT WITHOUT ADEQUATE CONSIDERATION. 36 COMP. GEN. 27.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER.