B-150316, DEC. 11, 1962

B-150316: Dec 11, 1962

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TO THE SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 19. THE CONTRACTOR WAS ADVISED OF THE AWARD. WHEREAS THE BID PRICE SHOULD HAVE READ $17.50 PER LINEAL FOOT. THERE WERE ENCLOSED WHAT PURPORTED TO BE THE CONTRACTOR'S WORKSHEET SHOWING HOW THE ERROR WAS MADE. REFERENCE WAS MADE IN THE LETTER OF OCTOBER 8. TO THE FACT THAT THE ENGINEER'S ESTIMATE WAS $17.50 PER LINEAL FOOT AND THAT THE UNIT PRICES OF OTHER BIDDERS ON THIS PARTICULAR PIPE RANGED FROM $17.00 TO $19.50 PER LINEAL FOOT. THAT HE DID NOT CONSIDER HIS OFFICE WAS SUFFICIENTLY ON NOTICE OF THE POSSIBILITY OF ERROR TO HAVE BEEN REQUIRED TO REQUEST CONFIRMATION OF THE BID PRICE AS TO ITEM NO. 6. THAT IT IS NOT UNCOMMON FOR BIDDERS RESPONDING TO INVITATIONS OF THIS TYPE TO QUOTE DIFFERENT UNIT PRICES FOR THE SAME ITEM WHERE TWO OR MORE CONSTRUCTION SITES ARE INCLUDED IN THE INVITATION FOR BIDS.

B-150316, DEC. 11, 1962

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 19, 1962, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING OUR DECISION AS TO THE ACTION TO BE TAKEN BY YOUR DEPARTMENT CONCERNING A MISTAKE IN BID ALLEGED BY LONGVIEW CONSTRUCTION AND DEVELOPMENT, INC., LONGVIEW, TEXAS, AFTER THE AWARD OF CONTRACT NO. 12 10-410-4681 ON OCTOBER 2, 1962, TO THAT CONCERN FOR THE CONSTRUCTION OF THREE FLOODWATER RETARDING STRUCTURES DESIGNATED AS SITES 9, 10 AND 22, JIM NED CREEK WATERSHED OF THE MIDDLE COLORADO RIVER WATERSHED, TEXAS.

THE RECORD INDICATES THAT BY LETTER OF OCTOBER 2, 1962, THE CONTRACTOR WAS ADVISED OF THE AWARD, AND THAT BY LETTER OF OCTOBER 8, 1962, THE CONTRACTOR ACKNOWLEDGED THE RECEIPT OF THE CONTRACT DOCUMENTS BUT ALLEGED THAT A MISTAKE HAD BEEN MADE IN ENTERING ITS BID PRICE ON ITEM NO. 6 OF THE BID SCHEDULE APPLICABLE TO SITE NO. 9 (PRINCIPAL SPILLWAY CONCRETE PIPE, 24 INCH I.D.--- 276 LINEAL FEET), THE INSTALLED PRICE HAVING BEEN ENTERED AS $12.81 PER LINEAL FOOT, WHEREAS THE BID PRICE SHOULD HAVE READ $17.50 PER LINEAL FOOT. WITH THE LETTER OF OCTOBER 8, 1962, THERE WERE ENCLOSED WHAT PURPORTED TO BE THE CONTRACTOR'S WORKSHEET SHOWING HOW THE ERROR WAS MADE, AND A COPY OF A LETTER DATED SEPTEMBER 6, 1962, FROM GIFFORD-HILL AMERICAN, INC., OFFERING TO FURNISH THE INDICATED CONCRETE PIPE AT THE PRICE OF $12.21 PER LINEAL FOOT. ALSO, REFERENCE WAS MADE IN THE LETTER OF OCTOBER 8, 1962, TO THE FACT THAT THE ENGINEER'S ESTIMATE WAS $17.50 PER LINEAL FOOT AND THAT THE UNIT PRICES OF OTHER BIDDERS ON THIS PARTICULAR PIPE RANGED FROM $17.00 TO $19.50 PER LINEAL FOOT.

RESPECTING THE FOREGOING STATEMENTS, MR. HAROLD R. BAKER, STATE ADMINISTRATIVE OFFICER, STATED IN HIS LETTER OF OCTOBER 19, 1962, IN EFFECT, THAT HE DID NOT CONSIDER HIS OFFICE WAS SUFFICIENTLY ON NOTICE OF THE POSSIBILITY OF ERROR TO HAVE BEEN REQUIRED TO REQUEST CONFIRMATION OF THE BID PRICE AS TO ITEM NO. 6; ALSO, THAT IT IS NOT UNCOMMON FOR BIDDERS RESPONDING TO INVITATIONS OF THIS TYPE TO QUOTE DIFFERENT UNIT PRICES FOR THE SAME ITEM WHERE TWO OR MORE CONSTRUCTION SITES ARE INCLUDED IN THE INVITATION FOR BIDS. HOWEVER, BASED UPON THE INFORMATION FURNISHED BY THE CONTRACTOR, MR. BAKER EXPRESSED THE BELIEF THAT A GOOD FAITH ERROR WAS MADE BY THE CONTRACTOR AND THAT, IN FACT, IT WAS THE INTENTION OF THE CONTRACTOR TO BID $17.50 PER LINEAL FOOT FOR THE ITEM IN QUESTION. FOR THE FOREGOING REASONS, MR. BAKER RECOMMENDED THAT CORRECTION OF THE UNIT PRICE AS REQUESTED BY THE CONTRACTOR BE PERMITTED.

THE CONTRACT IN THIS CASE PROVIDED FOR AN AWARD ON THE TOTAL OF THE THREE SITES INVOLVED. IN OTHER WORDS, SUCH PROVISION REQUIRED THE AWARD OF THE CONTRACT TO LONGVIEW CONSTRUCTION AND DEVELOPMENT, INC., THE LOWEST RESPONSIVE BIDDER, AT ITS AGGREGATE BID PRICE OF $151,551.82, FOR THE WORK INVOLVED. WHILE EXCEPTIONS HAVE BEEN MADE IN CERTAIN CIRCUMSTANCES NOT HERE PRESENT, IT IS THE GENERAL RULE THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. 17 COMP. GEN. 534. THIS IS PARTICULARLY TRUE IN CASES SUCH AS THE INSTANT ONE WHERE THERE ARE A CONSIDERABLE NUMBER OF ITEMS AND THE AGGREGATE PRICES BID ARE CLOSE TO EACH OTHER.

THE RECORD IN THIS CASE INDICATES THAT THE ACCEPTANCE OF THE BID OF LONGVIEW CONSTRUCTION AND DEVELOPMENT, INC., WAS IN GOOD FAITH, NO ERROR HAVING BEEN NOTICED OR ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

FURTHERMORE, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN THIS CASE WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF, AS APPEARS FROM THE RECORD IN THIS CASE, THE CONTRACTOR INADVERTENTLY USED THE WRONG FIGURE FOR ITS BID PRICE, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, THE CONTRACTOR IS NOT ENTITLED TO BE RELIEVED FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, AND SELIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE ENCLOSURES TO THE LETTER OF NOVEMBER 19, 1962, ARE RETURNED HEREWITH AS REQUESTED.