B-150105, NOV. 6, 1962

B-150105: Nov 6, 1962

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TO THE SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO LETTER DATED OCTOBER 12. TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. 12-11-261-2139 IS BASED. BIDS WERE INVITED ON FOUR ALTERNATE PROPOSALS. ONLY ONE OF WHICH WAS TO BE AWARDED. THE WORK TO BE PERFORMED WAS DESCRIBED UNDER A-1 THROUGH A-8. THE BID OF THE CORPORATION WAS ACCEPTED AS TO PROPOSAL NO. 1 ON JUNE 29. IT IS REPORTED BY THE CONTRACTING OFFICER THAT ON JULY 2. SANDALL WAS ADVISED THAT TWO BIDS LOWER THAN HIS BID ON THE OFFICE-WAREHOUSE BUILDING WERE RECEIVED AND THAT IF HE WISHED TO SUBMIT A CLAIM FOR ADDITIONAL COMPENSATION. THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE.

B-150105, NOV. 6, 1962

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO LETTER DATED OCTOBER 12, 1962, FROM THE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY THE SANDALL CONSTRUCTION CO., INC., TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. 12-11-261-2139 IS BASED.

THE FOREST SERVICES, MISSOULA, MONTANA, BY INVITATION NO. 26-62-5137 REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF BUILDINGS AND UTILITY SYSTEMS AT KEMISH RANGER STATION SITE, CLEARWATER NATIONAL FOREST, KAMIAH, IDAHO. BIDS WERE INVITED ON FOUR ALTERNATE PROPOSALS, ONLY ONE OF WHICH WAS TO BE AWARDED. PROPOSAL NO. 1 COVERED THE CONSTRUCTION OF ONE OFFICE-WAREHOUSE WITH FALLOUT SHELTER, ONE GARAGE-SHOP, THREE 3 BEDROOM RESIDENCES, WATER, SEWER AND ELECTRICAL SYSTEMS. THE WORK TO BE PERFORMED WAS DESCRIBED UNDER A-1 THROUGH A-8. IN RESPONSE THE SANDALL CONSTRUCTION CO., INC., SUBMITTED A BID OFFERING TO PERFORM THE WORK COVERED BY PROPOSAL NO. 1 FOR THE LUMP SUM OF $121,944. THE BID OF THE CORPORATION WAS ACCEPTED AS TO PROPOSAL NO. 1 ON JUNE 29, 1962.

IT IS REPORTED BY THE CONTRACTING OFFICER THAT ON JULY 2, 1962, MR. SANDALL TELEPHONED ALLEGING THAT HE HAD MADE AN ERROR OF $5,046 IN COMPUTING HIS BID PRICE FOR THE OFFICE-WAREHOUSE BUILDING COVERED BY ITEM A-1 OF PROPOSAL NO. 1; THAT MR. SANDALL STATED THAT HE HAD OVERLOOKED ONE WHOLE SHEET OF FIGURES; AND THAT MR. SANDALL WAS ADVISED THAT TWO BIDS LOWER THAN HIS BID ON THE OFFICE-WAREHOUSE BUILDING WERE RECEIVED AND THAT IF HE WISHED TO SUBMIT A CLAIM FOR ADDITIONAL COMPENSATION, HE SHOULD SUBMIT EVIDENCE IN SUPPORT OF HIS ALLEGATION OF ERROR.

BY LETTER DATED JULY 2, 1962, MR. SANDALL RETURNED THE UNEXECUTED CONTRACT AND BOND FORMS FOR CORRECTION OF THE AMOUNTS SHOWN THEREON AND SUBMITTED A SWORN STATEMENT TO THE EFFECT THAT HE HAD MADE AN ERROR OF $6,046 IN HIS BID ON THE OFFICE-WAREHOUSE BUILDING COVERED BY ITEM A-1 OF PROPOSAL NO. 1. MR. SANDALL REQUESTED THAT THE CONTRACT PRICE OF THE WORK COVERED BY PROPOSAL NO. 1 BE INCREASED TO $127,990. BY LETTER DATED AUGUST 10, 1962, MR. SANDALL SUBMITTED HIS ORIGINAL WORKSHEETS IN SUPPORT OF THE ALLEGATION OF ERROR.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE ABSTRACT OF BIDS RECEIVED SHOWS THAT THE FIVE OTHER BIDS ON PROPOSAL NO. 1 RANGED FROM $127,945 TO $148,000. AT THE TIME OF ACCEPTANCE THE CONTRACTING OFFICER HAD RECEIVED NO NOTICE OR CLAIM OF ERROR, AND WE AGREE WITH THE ADMINISTRATIVE VIEW THAT THE DIFFERENCE BETWEEN THE CORPORATION'S BID AND THE OTHERS RECEIVED IS NOT SO GREAT AS TO WARRANT THE CONCLUSION THAT HE SHOULD HAVE BEEN ON NOTICE OF THE LIKELIHOOD OF ERROR IN THE BID. ALTHOUGH, AFTER AWARD, THE CORPORATION FURNISHED ITS WORKSHEETS, IT DOES NOT APPEAR THAT PRIOR TO AWARD THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY THE CORPORATION IN COMPUTING ITS BID PRICE ON PROPOSAL NO. 1. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE CORPORATION UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; 39 COMP. GEN. 36; ID. 405.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. ANY ERROR IN THE BID WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION TO RELIEF.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. 12-11-261 2139.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT, ARE RETURNED.