B-150073, NOV. 13, 1962

B-150073: Nov 13, 1962

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WHILE THE EVIDENTIARY DOCUMENTS SUBMITTED BY THE ADMINISTRATIVE AGENCY IN REFERENCE TO YOUR CLAIM ARE DETAILED. THE LEGAL ISSUE IS RELATIVELY SIMPLE. WHICH DRAWING IS A PART OF THE INVITATION AND THE CONTRACT. THE REPORTED FACTS INDICATE THAT IT WAS NECESSARY TO REFER TO ANOTHER DRAWING. TO DETERMINE HOW CERTAIN DOWNSPOUTS AND DRAINS WERE TO BE CONNECTED TO THE STORM DRAINS. YOU WERE REQUIRED TO PERFORM THE CONTRACT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS AND THE DRAWINGS. ALTHOUGH IT IS TRUE THAT YOUR BID PRICE OF THE PARTICULAR ITEM IN QUESTION WAS LOWER THAN THE GOVERNMENT ESTIMATE. IT IS EQUALLY TRUE THAT SEVERAL OTHER BIDDERS WERE LOWER THAN THE GOVERNMENT ESTIMATE ON THIS ITEM.

B-150073, NOV. 13, 1962

TO SECURITY CONSTRUCTION COMPANY:

IN YOUR LETTER OF MARCH 12, 1962, YOU REQUEST AN ADJUSTMENT OF THE PRICE FOR CONTRACT NO. DA-34-066-ENG-5686 ENTERED INTO WITH YOU BY THE DEPARTMENT OF THE ARMY FOR THE CONSTRUCTION OF BATTALION MOTOR POOL EXTERIOR FACILITIES AND SPECIAL PARKING AREAS AT FORT SILL, OKLAHOMA. YOU STATE THAT BECAUSE OF AN ERROR IN THE SPECIFICATIONS, YOU FAILED TO INCLUDE IN YOUR BID PRICE THE COST OF INSTALLING CERTAIN STORM DRAINS, AND REQUEST AN INCREASE IN THE CONTRACT PRICE IN THE AMOUNT OF $2,907.60, AN AMOUNT ALLEGEDLY REPRESENTING THE REASONABLE COST OF PERFORMING THE WORK.

WHILE THE EVIDENTIARY DOCUMENTS SUBMITTED BY THE ADMINISTRATIVE AGENCY IN REFERENCE TO YOUR CLAIM ARE DETAILED, COMPLEX AND COMPLICATED, THE LEGAL ISSUE IS RELATIVELY SIMPLE. YOU ALLEGE, AND THE DEPARTMENT OF THE ARMY ADMITS, THAT THE DRAINAGE SCHEDULE CONTAINED ON DRAWING NO. 16-06-34, WHICH DRAWING IS A PART OF THE INVITATION AND THE CONTRACT, FAILED TO LIST AND INCLUDE THE STORM DRAINS IN QUESTION. YOU FURTHER ALLEGE THAT YOU RELIED UPON THIS DRAINAGE SCHEDULE IN PREPARING YOUR BID. ALSO, THE REPORTED FACTS INDICATE THAT IT WAS NECESSARY TO REFER TO ANOTHER DRAWING, NOT RELEVANT TO THE WORK HERE INVOLVED, TO DETERMINE HOW CERTAIN DOWNSPOUTS AND DRAINS WERE TO BE CONNECTED TO THE STORM DRAINS.

NOTWITHSTANDING THE OMISSION IN THE DRAINAGE SCHEDULE, YOU WERE REQUIRED TO PERFORM THE CONTRACT IN STRICT ACCORDANCE WITH THE SPECIFICATIONS AND THE DRAWINGS. THE SPECIFICATIONS REQUIRED A "STORM DRAIN SYSTEM, COMPLETE," AND THE DRAWINGS ATTACHED TO AND MADE A PART OF THOSE SPECIFICATIONS CLEARLY REQUIRED THE INSTALLATION OF THE STORM DRAINS IN QUESTION AND THEIR CONNECTION WITH THE DOWNSPOUTS. IN VIEW OF THIS CLEAR REQUIREMENT OF YOUR CONTRACT, YOU HAD NO LEGAL RIGHT, AS YOU ADMIT IN YOUR LETTER OF MARCH 12, TO RELY SOLELY UPON THE DRAINAGE SCHEDULE.

ALTHOUGH IT IS TRUE THAT YOUR BID PRICE OF THE PARTICULAR ITEM IN QUESTION WAS LOWER THAN THE GOVERNMENT ESTIMATE, IT IS EQUALLY TRUE THAT SEVERAL OTHER BIDDERS WERE LOWER THAN THE GOVERNMENT ESTIMATE ON THIS ITEM, INCLUDING ONE WHOSE ITEM BID WAS EVEN LOWER THAN YOUR OWN. FURTHERMORE, THE RECORD SHOWS THAT YOUR BID WAS SUBSTANTIALLY LOWER THAN THE GOVERNMENT ESTIMATE ON MOST OF THE OTHER ITEMS CONTAINED IN THE INVITATION. THEREFORE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE HAD REASON TO BELIEVE THAT YOU MIGHT HAVE MADE AN ERROR AND THE ACCEPTANCE OF YOUR BID MUST BE REGARDED AS HAVING BEEN MADE IN GOOD FAITH.

YOU STATE THAT YOU HAVE ESTABLISHED THAT YOU MADE AN HONEST MISTAKE, AND YOU REQUEST THAT OUR OFFICE DISPOSE OF YOUR CLAIM ON THE BASIS OF EQUITY. WHILE IT DOES APPEAR THAT YOU MAY HAVE MADE AN HONEST MISTAKE IN COMPUTING YOUR BID PRICE, THERE APPEARS TO BE NO LEGAL BASIS TO GRANT RELIEF, AND THE AUTHORITY OF OUR OFFICE UNDER SECTION 236 REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF 1921, 42 STAT. 20, DOES NOT EXTEND TO CLAIMS BASED ON EQUITABLE OR MORAL OBLIGATION. ACCORDINGLY, YOUR CLAIM IS DISALLOWED.