B-152435, NOV. 8, 1963

B-152435: Nov 8, 1963

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FEDERAL AVIATION AGENCY: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 5. THE WORK TO BE PERFORMED WAS SET FORTH IN TWO SCHEDULES: SCHEDULE I CALLED FOR THE EXCAVATION OF A SECTION OF A MOUNTAIN TOP AIRPORT PLATEAU FOR A BUILDING AREA AND ACCESS DRIVEWAY WITHOUT SURFACING MATERIAL. PROSPECTIVE BIDDERS WERE PROVIDED WITH A BID FORM CONSISTING OF SEVERAL PAGES. 6 INCHES 215 LF TOTAL SCHEDULE II NOTE: ALL REFERENCES TO PAYMENT FOR WORK PERFORMED CONTAINED IN THE SPECIFICATIONS ARE HEREBY DELETED. DELETED PAGE FOUR AND PROVIDED A REVISED PAGE FOUR WHICH WAS IDENTICAL TO THE ORIGINAL EXCEPT THAT ITEM 2 (A) ON THE ORIGINAL PAGE WAS REDESIGNATED AS ITEM 3. ITEMS 2 (B) THROUGH 5 WERE DELETED IN THEIR ENTIRETY.

B-152435, NOV. 8, 1963

TO ADMINISTRATOR, FEDERAL AVIATION AGENCY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 5, 1963, FROM YOUR AGENCY SIGNED BY THE ASSOCIATE ADMINISTRATOR FOR DEVELOPMENT REFERRING THE CLAIM OF THE A. G. PROCTOR COMPANY, INC., TO THIS OFFICE PURSUANT TO SECTION 1- 2.406-4 (I) OF THE FEDERAL PROCUREMENT REGULATIONS. THE COMPANY REQUESTS AN UPWARD ADJUSTMENT OF PRICE IN THE AMOUNT OF $4,848 UNDER CONTRACT NO. FA-EA-3804, AS THE RESULT OF A MISTAKE IN BID ALLEGED AFTER AWARD.

BY INVITATION FOR BIDS NO. 1-63-70B1 DATED DECEMBER 3, 1962, THE EASTERN REGION OF THE FEDERAL AVIATION AGENCY, LOCATED AT NEW YORK INTERNATIONAL AIRPORT, SOLICITED BIDS FOR THE CONSTRUCTION OF A MOUNTAIN TOP VORTAC FACILITY AT WHITESBURG, KENTUCKY. THE WORK TO BE PERFORMED WAS SET FORTH IN TWO SCHEDULES: SCHEDULE I CALLED FOR THE EXCAVATION OF A SECTION OF A MOUNTAIN TOP AIRPORT PLATEAU FOR A BUILDING AREA AND ACCESS DRIVEWAY WITHOUT SURFACING MATERIAL; SCHEDULE II CALLED FOR THE CONSTRUCTION OF A TRANSMITTER BUILDING TO INCLUDE INSTALLATION OF THE ELECTRICAL, AIR CONDITIONING, AND VENTILATING SYSTEMS, TRANSFORMER SUBSTATION, FENCING, ENGINE-GENERATOR, UNDERGROUND FUEL AND WATER TANKS, AS WELL AS FOR THE CONSTRUCTION OF A GROUND MOUNTED COUNTERPOISE, A PLASTIC ANTENNA SHELTER AND TACAN MONITOR POLE, TERMINAL POLE STRUCTURE, UNDERGROUND POWER AND CONTROL EXTENSIONS, AND PAINTING AND SURFACING WORK.

PROSPECTIVE BIDDERS WERE PROVIDED WITH A BID FORM CONSISTING OF SEVERAL PAGES. PAGE FOUR OF THIS FORM, AS ORIGINALLY DISTRIBUTED, HAD THE FOLLOWING GENERAL APPEARANCE:

CHART ITEM UNIT TOTAL NO. ARTICLE QUANTITY UNIT PRICE PRICE

SCHEDULE II 1. FACILITY, MOUNTAIN TOP VORTAC 1 XXX XX 2. BUILDING AREA AND ACCESS RAMP

(A) SURFACING MATERIAL 100 CY

(B) TYPE V BOARD FENCE 90 LF

(C) GUARD POSTS 11 EACH 3. UTILITIES

(A) POWER CABLE SPLICES

(AS ORDERED)1 EACH (B) CABLE

MARKERS 5 EACH 4. SANITARY SEWAGE

SYSTEM (A) DELIVERY LINE 35 LF (B)

INFLUENT LINE 75 LF (C) EFFLUENT LINE

25 LF (D) DRAIN TILE, 4 INCHES

100 LF 5. TILE DRAIN, 6 INCHES

215 LF

TOTAL SCHEDULE II

NOTE: ALL REFERENCES TO PAYMENT FOR WORK PERFORMED CONTAINED IN THE SPECIFICATIONS ARE HEREBY DELETED. THE CONTRACTOR SHALL INCLUDE THE COST OF ALL WORK REQUIRED UNDER THE TERMS OF THIS CONTRACT UNDER THE ITEM 1 WITH THE EXCEPTION OF THOSE ITEMS SPECIFICALLY ENUMERATED IN THIS BID SCHEDULE.

AMENDMENT NO. 3 TO THE INVITATION ISSUED ON JANUARY 9, 1963, DELETED PAGE FOUR AND PROVIDED A REVISED PAGE FOUR WHICH WAS IDENTICAL TO THE ORIGINAL EXCEPT THAT ITEM 2 (A) ON THE ORIGINAL PAGE WAS REDESIGNATED AS ITEM 3, ITEMS 2 (B) THROUGH 5 WERE DELETED IN THEIR ENTIRETY, AND THE "NOTE" AT THE BOTTOM OF THE PAGE WAS CHANGED IN THAT THE PHRASE "UNDER THE ITEM 1 WITH THE EXCEPTION OF THOSE ITEMS SPECIFICALLY ENUMERATED IN THIS BID SCHEDULE" WAS DELETED AND THE FOLLOWING LANGUAGE WAS INSERTED IN ITS PLACE: "UNDER THE ITEMS LISTED IN THIS BID SCHEDULE.'

BY MEMORANDUM DATED AUGUST 8, 1963, FROM THE ACTING CHIEF, MATERIEL BRANCH, TO THE CHIEF, PROCUREMENT DIVISION, IM-200, THE REASONS FOR THE CHANGES WERE STATED TO BE AS FOLLOWS:

"PAGE 4 WAS CHANGED TO CONFORM TO CURRENT POLICY OF REDUCING TO A MINIMUM THE NUMBER OF ITEMS ON A BID SCHEDULE. THIS REDUCES THE FREQUENCY OF ERRORS IN PRICES AND TOTALS, AND MAKES THE HANDLING OF CHANGE ORDERS EASIER. THE ITEMS DELETED ARE MINOR ITEMS OF KNOWN QUANTITY, SUCH AS GUARD POSTS, DRAIN TILE, ETC. THE ITEM "SURFACING MATERIAL" REMAINED ON THE REVISED BID SCHEDULE BECAUSE IT IS USUALLY CONSIDERED A VARIABLE AND THE QUANTITY ESTIMATED IS ONLY APPROXIMATE, AND SUBJECT TO CHANGE AS CONSTRUCTION PROGRESSES. THE CHANGE IN LANGUAGE OF NOTE ON PAGE 4 WAS MADE TO MAKE THE NOTE CONFORM TO THE LAYOUT OF THE SHORTENED BID PAGE; THE OLD PHRASE * * * DID NOT SEEM TO FIT AS WELL AS (THE NEW ONE) WHEN THE BID SCHEDULE WAS REDUCED TO ONLY ITEMS 1 AND 2.'

FIVE BIDS WERE RECEIVED AND OPENED ON JANUARY " 1963, THE CONTENTS OF WHICH, WITH REFERENCE ONLY TO SCHEDULE II, MAY BE SUMMARIZED IN THE FOLLOWING MANNER: THE A. G. PROCTOR COMPANY, INCORPORATED, OF DENVER, COLORADO, BID $28,700 ($28,000 ON ITEM 1 AND $700 ON ITEM 2); B. AND P. ELECTRIC COMPANY, INCORPORATED, OF NORFOLK, VIRGINIA, BID $38,070; TEMPLE ROCK CORPORATION OF BROOKLYN, NEW YORK, BID $40,600; DONALD ENGINEERING COMPANY OF NEW YORK, NEW YORK, BID $44,700; AND CONSTRUCTION SERVICES COMPANY OF CHELTENHAM, PENNSYLVANIA, BID $54,296. NOT SUSPECTING THE POSSIBILITY OF ERROR, AND THEREFORE WITHOUT REQUESTING VERIFICATION OF THE PROCTOR BID, THE CONTRACTING OFFICER MADE AWARD, ON SCHEDULE II ONLY, TO A.G. PROCTOR COMPANY, INCORPORATED, BY TWX OF FEBRUARY 6, 1963. PROCTOR'S VICE PRESIDENT, MR. BEN H. BROWN, CALLED THE EASTERN REGION ON FEBRUARY 11, 1963, AND, FOR THE FIRST TIME, NOTIFIED THE GOVERNMENT THAT A MISTAKE IN BID HAD BEEN MADE. THE TELEPHONE CALL WAS FOLLOWED BY A LETTER FROM THE COMPANY DATED MAY 14, 1963, WHICH STATED THAT PROCTOR'S BID HAD ORIGINALLY BEEN FORMULATED ON THE LONG BID FORM (OLD VERSION OF PAGE FOUR) AND THAT, UPON RECEIPT OF THE REVISED SHORT BID FORM, THE FIGURES HAD BEEN WRONGLY TRANSPOSED. ATTACHED TO THE LETTER WERE THREE DOCUMENTS: THE AFFIDAVIT OF BEN H. BROWN STATING THAT HE HAD PERSONALLY PREPARED BOTH THE LONG AND SHORT BID FORMS, AND PHOTOSTATIC COPIES OF THESE ORIGINALS IN HIS OWN HANDWRITING. THE LONG BID FORM SET FORTH THE FOLLOWING ENTREES:ITEM 1.--- $28,000; ITEM 2.A, B, C,--- $750, $765, $308, RESPECTIVELY; ITEM 3A AND B--- $75 AND $50, RESPECTIVELY; ITEM 4A, B, C, D,--- $280, $600, $200, $800, RESPECTIVELY; AND ITEM 5--- $1,720. THE LETTER ALLEGED THAT MR. BROWN HAD MISTAKENLY CARRIED OVER THE $28,000 FIGURE FOR ITEM 1 FROM THE LONG TO THE SHORT FORM WITHOUT ADDING THE SUM OF FORMER ITEMS 2B THROUGH 5INTO THE TOTAL AND HAD, FOR SOME UNEXPLAINED REASON, WRONGLY DEDUCTED $50 FROM THE CHARGE FOR SURFACING MATERIAL (NEW ITEM 2) IN TRANSPOSING THAT QUOTE. THE GOVERNMENT REPLIED THAT SINCE THE MISTAKE HAD NOT BEEN ALLEGED UNTIL AFTER AWARD, IN ITS VIEW THERE WAS A BINDING AND SUBSISTING CONTRACT BETWEEN THE PARTIES WHICH WOULD HAVE TO BE PERFORMED. A NOTICE TO PROCEED WAS ISSUED ON MAY 2, 1963, EFFECTIVE MAY 6, 1963, BUT THE CONTRACTOR WAS INFORMED THAT THE MATTER WOULD BE REFERRED TO THIS OFFICE FOR DECISION. PERFORMANCE OF THE WORK WAS COMPLETED ON OCTOBER 6, 1963.

A GOVERNMENT CONTRACT MAY BE REFORMED TO CORRECT A MISTAKE IN BID ONLY WHEN THERE EXISTS CLEAR AND CONVINCING EVIDENCE THAT A MISTAKE WAS MADE AND THAT EITHER THE MISTAKE WAS MUTUAL OR THAT THE UNILATERAL MISTAKE MADE BY THE CONTRACTOR WAS SO APPARENT AS TO HAVE CHARGED THE CONTRACTING OFFICER WITH NOTICE OF THE PROBABILITY OF THE MISTAKE. FEDERAL PROCUREMENT REGULATIONS 1-2.406-4 (C).

CONTRACTOR ASSERTS THAT BUT FOR THE ERROR THE AMOUNT OF ITS BID WOULD HAVE BEEN $33,548 INSTEAD OF $28,700. THE ONLY EVIDENCE TO ESTABLISH THE MISTAKE WHICH CONTRACTOR HAS ADDUCED CONSISTS OF THE AFOREMENTIONED AFFIDAVIT OF MR. BROWN, THE LONG BID FORM ALLEGEDLY USED BY MR. BROWN TO PREPARE THE COMPANY'S BID, AND NINETEEN PAGES OF WORKSHEETS PRESUMABLY USED BY CONTRACTOR IN CALCULATING THE AMOUNT OF ITS BID. LEAVING ASIDE THE QUESTION OF CREDIBILITY, IT IS CLEAR FROM THIS EVIDENCE THAT A MISTAKE WAS MADE BY MR. BROWN IN TRANSPOSING THE COMPANY'S BID FROM THE ORIGINAL TO THE REVISED PAGE FOUR. WE HAVE HELD THE AFFIDAVIT OF A BIDDER'S KEY EMPLOYEE COMPETENT EVIDENCE TO SUBSTANTIATE THE MAKING OF A MISTAKE. COMP. GEN. 326, 330.

THERE IS NO REASON TO ATTRIBUTE KNOWLEDGE OF BIDDER'S MISTAKE TO PROCUREMENT OFFICIALS IN THIS CASE. THE PRICING HISTORY OF TWO IDENTICAL PROCUREMENTS WITHIN THE RECENT PAST (ONE OF WHICH COVERED AN INSTALLATION LESS THAN 100 MILES FROM THE WHITESBURG SITE) SHOWED THAT THE BIDS RECEIVED ON THIS PROCUREMENT WERE, IN GENERAL, HIGHER BUT NOT OUT OF LINE. FURTHERMORE, THE INDEPENDENT GOVERNMENT ESTIMATE OF $31,590 WAS NOT SO MUCH HIGHER THAN THE PROCTOR BID AS TO HAVE ALERTED THE CONTRACTING OFFICER TO SUSPECT ERROR AND TO REQUEST VERIFICATION. THE SAME MAY BE SAID ABOUT THE COMPARISON OF THE PROCTOR BID WITH THE NEXT LOW BID WHICH REVEALED THE LATTER TO BE APPROXIMATELY 25 PERCENT HIGHER THAN THE FORMER.

WE FIND NO EVIDENCE IN THE RECORD BEFORE US TENDING TO SHOW THAT THE CONTRACTING OFFICER WAS REMISS IN THE PERFORMANCE OF HIS ERROR DETECTION DUTY NOR DO WE THINK ACCEPTANCE BY THE GOVERNMENT OF THE PROCTOR BID CAN IN ANY WISE BE DEEMED UNCONSCIONABLE. TRUE, AMENDMENT NO. 3 TO THE INVITATION REQUIRED CLOSE SCRUTINY AND STRICT OBSERVANCE IF ERROR WAS TO BE AVOIDED BUT IT WAS CLEAR AND UNEQUIVOCAL IN ITS TERMS.

THE BID OF CONTRACTOR WAS NEGLIGENTLY PREPARED AND CONTRACTOR MUST BEAR FULL RESPONSIBILITY FOR THE CONSEQUENCES. FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120. NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO SURRENDER WITHOUT ADEQUATE CONSIDERATION ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. UNITED STATES V. AMERICAN SALES CO., 27 F.2D 389, AFF. 32 F.2D 141, CERT. DENIED, 280 U.S. 574.

WE PERCEIVE NO LEGAL BASIS FOR ALLOWING THE CONTRACTOR'S CLAIM FOR ADJUSTMENT.