B-152056, AUG. 15, 1963

B-152056: Aug 15, 1963

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED JULY 15. THE WORK TO BE PERFORMED WAS DIVIDED INTO FIVE ITEMS FOR THE PURPOSES OF SUBMITTING BIDS AND MAKING PAYMENT FOR THE WORK. THE BID OF THE GOLD COMPANY WAS ACCEPTED ON AUGUST 1. IN WHICH THE SUBCONTRACTOR WAS QUOTED A PRICE OF $1. AN ASTERISK AT THE BOTTOM OF THE SHEET IS SET BEFORE THE FOLLOWING STATEMENT: "THESE ARE THE FIXTURES WHICH I WAS TOLD THE SPA WAS FURNISHING.'. HE WAS CALLED BY THE NEWPORT-HESSEE CONSTRUCTION COMPANY FOR A QUOTATION ON THE ELECTRICAL WORK COVERED BY ITEM 3 OF THE INVITATION. THAT THE COMPANY INFORMED HIM THAT UNDER THIS INVITATION THE GOVERNMENT WAS GOING TO FURNISH THE LIGHTING FIXTURES AND PANELS.

B-152056, AUG. 15, 1963

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JULY 15, 1963, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER THE RELIEF SOUGHT BY THE GOLD CONSTRUCTION COMPANY UNDER CONTRACT NO. 14-02 0001-1025 MAY BE GRANTED.

THE SOUTHWESTERN POWER ADMINISTRATION, TULSA, OKLAHOMA, BY INVITATION NO. SPA-359 REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND PERFORMING CERTAIN WORK IN ITS MAINTENANCE BUILDING IN SPRINGFIELD, MISSOURI, IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS AND DRAWINGS. THE WORK TO BE PERFORMED WAS DIVIDED INTO FIVE ITEMS FOR THE PURPOSES OF SUBMITTING BIDS AND MAKING PAYMENT FOR THE WORK. ITEM 3 COVERED ELECTRICAL INSTALLATION AND LIGHTING. IN RESPONSE THE GOLD CONSTRUCTION COMPANY SUBMITTED A BID OFFERING TO PERFORM THE WORK COVERED BY ITEMS 1 THROUGH 5 FOR AN AGGREGATE TOTAL PRICE OF $42,823. THE ONLY OTHER RESPONSIBLE BIDDER QUOTED AN AGGREGATE TOTAL PRICE OF $44,678.71 FOR THE WORK COVERED BY ITEMS 1 THROUGH 5. THE BID OF THE GOLD COMPANY WAS ACCEPTED ON AUGUST 1, 1962.

BY LETTER DATED SEPTEMBER 1, 1962, THE GOLD CONSTRUCTION COMPANY ADVISED THE CONTRACTING OFFICER THAT ITS ELECTRICAL SUBCONTRACTOR, DAMERON ELECTRIC COMPANY, HAD MADE A MISTAKE IN ITS QUOTATION TO THE COMPANY ON ITEM 3 IN THAT IT HAD FAILED TO INCLUDE THEREIN THE COST OF FURNISHING THE DAY-BRITE FIXTURES REQUIRED BY PARAGRAPH 2, SECTION II, DIVISION DS-3, PART III OF THE DETAIL SPECIFICATIONS. THE COMPANY SUBMITTED A COPY OF A QUOTATION RECEIVED BY THE SUBCONTRACTOR FROM THE GRAYBAR ELECTRIC COMPANY, INC., IN WHICH THE SUBCONTRACTOR WAS QUOTED A PRICE OF $1,975.37 FOR FURNISHING THE DAY-BRITE FIXTURES REQUIRED BY THE SPECIFICATIONS. THE COMPANY ALSO SUBMITTED ITS SUBCONTRACTOR'S ESTIMATE SHEETS WHICH DO NOT CONTAIN A MATERIAL PRICE FOR "13 4 FOOT 4 TUBE TROFFERS, 53 4 FOOT 3 TUBE TROFFERS, 43 4 FOOT INDUSTRIALS.' A NOTATION OPPOSITE THESE ITEMS SHOWS THE FOLLOWING WORDS: "BY OWNER.' AN ASTERISK AT THE BOTTOM OF THE SHEET IS SET BEFORE THE FOLLOWING STATEMENT: "THESE ARE THE FIXTURES WHICH I WAS TOLD THE SPA WAS FURNISHING.'

IN A LETTER DATED SEPTEMBER 17, 1962, THE SUBCONTRACTOR'S ESTIMATOR STATED THAT ON JULY 20, 1962, HE WAS CALLED BY THE NEWPORT-HESSEE CONSTRUCTION COMPANY FOR A QUOTATION ON THE ELECTRICAL WORK COVERED BY ITEM 3 OF THE INVITATION; THAT THE COMPANY INFORMED HIM THAT UNDER THIS INVITATION THE GOVERNMENT WAS GOING TO FURNISH THE LIGHTING FIXTURES AND PANELS; THAT HE DID NOT HAVE A COPY OF THE SPECIFICATIONS BUT DID HAVE A COPY OF DRAWING EE-M-1021-241; AND THAT IN MAKING A TAKEOFF HE RELIED ON NOTE 1 ON SUCH DRAWING WHICH WAS TO THE EFFECT THAT THE GOVERNMENT WILL FURNISH LIGHTING FIXTURES WITH LAMPS SHOWN ON THE DRAWING. IT IS REPORTED THAT SUCH DRAWING SHOWS DETAILS FOR THE INSTALLATION OF 43 WESTINGHOUSE 2- LAMP, 8-FOOT FLUORESCENT FIXTURES AND THAT DRAWING NO. EE-M-1021-242 SHOWS DETAILS FOR THE INSTALLATION OF THE DAY-BRITE LIGHTING FIXTURES.

THERE WAS NOTHING ON THE FACE OF THE BID OF THE COMPANY TO INDICATE AN ERROR THEREIN AND NO ALLEGATION OF ERROR WAS MADE UNTIL AFTER AWARD OF THE CONTRACT. IT IS CLEAR ALSO THAT THE DIFFERENCE IN PRICE QUOTED BY THE GOLD CONSTRUCTION COMPANY AND THAT QUOTED BY THE ONLY OTHER RESPONSIBLE BIDDER WAS NOT SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY. MOREOVER, THE INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT AND THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE GOLD CONSTRUCTION COMPANY. THEREFORE, IF THE GOLD CONSTRUCTION COMPANY SUBMITTED A BID BASED UPON AN ERRONEOUS QUOTATION FROM THE DAMERON ELECTRIC COMPANY, THAT IS A MATTER WITH WHICH THE GOVERNMENT IS NOT CONCERNED AND THE PRIME CONTRACTOR MUST ASSUME THE CONSEQUENCES THEREOF OR LOOK TO ITS SUBCONTRACTOR FOR AN ADJUSTMENT IN THE MATTER. 18 COMP. GEN. 28 AND 31 ID. 479.

SUCH ERROR AS WAS MADE WAS DUE SOLELY TO THE NEGLIGENCE OF THE GOLD CONSTRUCTION COMPANY OR THAT OF THE DAMERON ELECTRIC COMPANY AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. HENCE, THE ERROR ALLEGED WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE THE GOLD CONSTRUCTION COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES, 50 F.SUPP. 505, 507.

ACCORDINGLY, WE FIND NO LEGAL BASIS TO JUSTIFY THE GRANTING OF ANY RELIEF TO THE CONTRACTOR ON ACCOUNT OF THE MISTAKE INVOLVED. SEE 20 COMP. GEN. 652; 26 ID. 415; 40 ID. 326.

ONE SET OF THE ENCLOSURES TO THE LETTER FROM THE ASSISTANT SECRETARY IS RETURNED HEREWITH AND THE OTHER SET IS BEING RETAINED FOR OUR FILES.