B-152401, NOV. 26, 1963

B-152401: Nov 26, 1963

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FOUR BIDS WERE RECEIVED. WERE OPENED ON APRIL 2. 000 THE GOVERNMENT'S ESTIMATE FOR THIS PROCUREMENT IS REPORTED TO HAVE BEEN IN THE AMOUNT OF $61. IT APPEARS THAT THE FIRST CORRESPONDENCE RELATING TO THE ALLEGED ERROR IN PREPARATION OF THE BID IS CONTAINED IN YOUR LETTER OF AUGUST 31. IS. IN THIS LETTER REQUEST IS MADE TO INCREASE THE CONTRACT PRICE FROM $54. 549 IS NOW CLAIMED. THE GENERAL RULE OF LAW IS THAT THE ACCEPTANCE OF A BID IN GOOD FAITH. WHILE THE INFORMATION AND PAPERS YOU HAVE SUBMITTED INDICATE THAT YOU MAY HAVE MADE A MISTAKE IN PREPARING YOUR BID. WE FIND NO EVIDENCE TO SHOW THAT THE CONTRACTING OFFICER WAS ACTUALLY AWARE. OR SHOULD HAVE KNOWN. THAT THE BID CONTAINED AN ERROR WHEN IT WAS ACCEPTED.

B-152401, NOV. 26, 1963

TO SCHURR AND FINLAY, INC.:

WE REFER TO YOUR LETTER OF AUGUST 31, 1963, WITH ENCLOSURES, REQUESTING AN ADJUSTMENT IN CONTRACT PRICE DUE TO A MISTAKE IN BID ALLEGED AFTER THE AWARD OF CONTRACT NO. NBY-47448, SPECIFICATION NO. 47448/62, ISSUED BY THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY.

THE RECORD INDICATES THAT INVITATION FOR BIDS NO. NBY 47448,SPECIFICATION NO. 47448/62, ISSUED BY THE SOUTHWEST DIVISION, BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, SAN DIEGO, CALIFORNIA, ON MARCH 5, 1963, CALLED FOR BIDS ON REPLACEMENT OF ELECTRIC POWER POLES (2ND INCREMENT), AND ELECTRICAL REHABILITATION OF BUILDINGS 508 AND 510, NAVAL AIR FACILITY, EL CENTRE, CALIFORNIA. THE RECORD ALSO INDICATES THAT PRIOR TO BID OPENING THE SOUTHWEST DIVISION, BUREAU OF YARDS AND DOCKS, RECEIVED A TELEGRAM FROM YOUR COMPANY INDICATING A $16,000 MODIFICATION TO ALL BID ITEMS OF THE SEALED BID THAT HAD PREVIOUSLY BEEN FORWARDED. FOUR BIDS WERE RECEIVED, AND WERE OPENED ON APRIL 2, 1963, AS FOLLOWS:

TOTAL BID

TABLE

1. SCHURR AND FINLAY, INC. (AS MODIFIED) $54,351

2. SECOND LOW BIDDER 62,602

3. THIRD LOW BIDDER 73,475

4. FOURTH LOW BIDDER 78,000

THE GOVERNMENT'S ESTIMATE FOR THIS PROCUREMENT IS REPORTED TO HAVE BEEN IN THE AMOUNT OF $61,500. ON APRIL 19, 1963, YOUR COMPANY RECEIVED THE AWARD AT ITS MODIFIED BID PRICE OF $54,351.

IT APPEARS THAT THE FIRST CORRESPONDENCE RELATING TO THE ALLEGED ERROR IN PREPARATION OF THE BID IS CONTAINED IN YOUR LETTER OF AUGUST 31, 1963, TO OUR OFFICE, AND IS, OF COURSE, A NUMBER OF MONTHS SUBSEQUENT TO THE AWARD. IN THIS LETTER REQUEST IS MADE TO INCREASE THE CONTRACT PRICE FROM $54,531 TO $59,900, AN INCREASE OF $5,549, BASED ON AN ALLEGED FAILURE TO PROPERLY EXTEND, IN THE WORK PAPERS, THE COST OF MATERIALS AND LABOR, TOTALING $7,282.68, LESS $1,733, REPRESENTING AN ERROR IN OVERCOMPUTING PROFIT. THE ODD CENTS BEING DROPPED, THE DIFFERENCE OF $5,549 IS NOW CLAIMED.

THE GENERAL RULE OF LAW IS THAT THE ACCEPTANCE OF A BID IN GOOD FAITH, WITHOUT KNOWLEDGE OF ERROR THEREIN, CONSUMMATES A VALID AND BINDING CONTRACT. SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, 507; 40 COMP. GEN. 326, 332.

WHILE THE INFORMATION AND PAPERS YOU HAVE SUBMITTED INDICATE THAT YOU MAY HAVE MADE A MISTAKE IN PREPARING YOUR BID, AS ALLEGED, WE FIND NO EVIDENCE TO SHOW THAT THE CONTRACTING OFFICER WAS ACTUALLY AWARE, OR SHOULD HAVE KNOWN, THAT THE BID CONTAINED AN ERROR WHEN IT WAS ACCEPTED. IT ALSO MUST BE CONSIDERED THAT THE BID WAS REVIEWED BY YOU AT THE TIME THAT THE ORIGINAL BID WAS MODIFIED, PRIOR TO BID OPENING. THE ERROR WAS FIRST ALLEGED MORE THAN FOUR MONTHS AFTER THE AWARD, AND THE MODIFIED BID PRICE WAS NOT SO OUT OF LINE WITH THE OTHER BIDS OR WITH THE GOVERNMENT'S ESTIMATE AS TO IMPUTE NOTICE OF AN ERROR.

ACCORDINGLY, ON THE FACTS PRESENTED, WE CONCLUDE THAT YOUR COMPANY MAY NOT PROPERLY BE RELIEVED ..END :