B-152457, JAN. 9, 1964

B-152457: Jan 9, 1964

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15. REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF CONTRACT NO. AN AWARD WAS MADE TO YOU ON FEBRUARY 6. YOU FAILED TO NOTE THE PROVISIONS OF PARAGRAPH 2-03E OF THE TECHNICAL SPECIFICATIONS WHICH PROVIDE FOR THE DAILY POLISHING OF ALL FLOORS WITH BUFFING MACHINES AND THAT SUCH OVERSIGHT ON YOUR PART WAS DUE TO THE FACT THAT THE INVITATION PROVIDED FOR THE WAXING AND BUFFING OF ALL FLOORS TWICE A MONTH UNDER ADDITIVE ITEMS 3/A) AND 3/B). YOU STATED IN YOUR LETTER THAT YOU FOUND BUFFING DAILY IN HEAVIER TRAFFIC AREAS IS NECESSARY IN SUCH AREAS AS CORRIDORS AND BUILDING ENTRANCES.

B-152457, JAN. 9, 1964

TO MURCOLE MAINTENANCE, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1963, WITH ENCLOSURES, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF CONTRACT NO. DA 04-351 AVI- 2528, WITH THE DEPARTMENT OF THE ARMY.

IN RESPONSE TO INVITATION NO. AVI 04-351-63-44, ISSUED ON DECEMBER 31, 1962, BY THE PURCHASING AND CONTRACTING DIVISION, FORT ORD, CALIFORNIA,YOU SUBMITTED A BID DATED JANUARY 26, 1963, OFFERING TO PERFORM CERTAIN CUSTODIAL SERVICES AS SPECIFIED AT THE PRESIDIO OF MONTEREY, CALIFORNIA, DURING THE PERIOD FROM FEBRUARY 1, 1963, THROUGH JANUARY 31, 1964, FOR A TOTAL PRICE OF $70,655.96. AFTER AN EVALUATION OF ALL BIDS RECEIVED FOR RENDERING 5 DAYS OF SERVICE PER WEEK, AN AWARD WAS MADE TO YOU ON FEBRUARY 6, 1963, ON THE BASIS OF THE LOWEST ACCEPTABLE AGGREGATE BID RECEIVED FOR BASE BID ITEMS 1 THROUGH 51 AND FOR ADDITIVE ITEMS 1/3), 2, 3/1) AND 4/4) IN THE AGGREGATE TOTAL AMOUNT OF $70,655.96,WHICH CONSUMMATED CONTRACT NO. DA 04-351 AVI-2528.

BY LETTER DATED APRIL 8, 1963, YOU ADVISED THE CONTRACTING OFFICER THAT IN COMPUTING YOUR BID PRICES FOR THE WORK INVOLVED, YOU FAILED TO NOTE THE PROVISIONS OF PARAGRAPH 2-03E OF THE TECHNICAL SPECIFICATIONS WHICH PROVIDE FOR THE DAILY POLISHING OF ALL FLOORS WITH BUFFING MACHINES AND THAT SUCH OVERSIGHT ON YOUR PART WAS DUE TO THE FACT THAT THE INVITATION PROVIDED FOR THE WAXING AND BUFFING OF ALL FLOORS TWICE A MONTH UNDER ADDITIVE ITEMS 3/A) AND 3/B). YOU STATED IN YOUR LETTER THAT YOU FOUND BUFFING DAILY IN HEAVIER TRAFFIC AREAS IS NECESSARY IN SUCH AREAS AS CORRIDORS AND BUILDING ENTRANCES; THAT, HOWEVER, THERE ARE AREAS WHICH DO NOT GET SIMILAR TRAFFIC AND THAT BUFFING DAILY IN LESS TRAVELED AREAS SEEMS TO BE A WASTE OF MANPOWER AND MONEY AND THAT ALSO IT WORKS A HARDSHIP ON YOUR CREW. YOU REQUESTED THAT IN LIEU OF BUFFING ALL FLOORS EXCEPT CONCRETE FLOORS DAILY YOU BE PERMITTED TO BUFF DAILY HEAVY TRAFFIC AREAS ONLY AND THAT AS A CONSIDERATION FOR THIS CONCESSION YOU STATED THAT YOU WERE WILLING TO REDUCE THE MONTHLY PRICE BY $200 PER MONTH OR TRADE $200 PER MONTH FOR EXTRA SERVICES FOR AN ADDITIONAL FREQUENCY ON ONE OR TWO ADDITIVE ITEMS. BY LETTER DATED MAY 3, 1963, THE CONTRACTING OFFICER ADVISED YOU THAT THE PROPOSAL CONTAINED IN YOUR LETTER OF APRIL 8, 1963, WAS NOT ACCEPTABLE TO THE DEPARTMENT OF THE ARMY AND THAT YOU SHOULD PROCEED WITH THE WORK IN ACCORDANCE WITH THE PROVISIONS OF THE CONTRACT.

IN A LETTER DATED MAY 31, 1963, IN WHICH YOU REITERATED YOUR REQUEST FOR RELIEF UNDER THE CONTRACT, YOU STATED THAT YOUR BID WAS BASED ON WAXING AND BUFFING ALL FLOORS TWICE A MONTH AND THAT THE DAILY BUFFING OF ALL FLOORS HAS INCREASED YOUR LABOR COSTS SUBSTANTIALLY.

WHILE THE RECORD INDICATES THAT NO EVIDENCE IN SUPPORT OF YOUR ALLEGATION OF ERROR IN YOUR BID HAS BEEN FURNISHED BY YOUR FIRM, THAT FACT IS NOT CONTROLLING IN THIS INSTANCE, SINCE THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN YOUR BID. THE ABSTRACT OF BIDS SHOWS THAT THE NINE OTHER AGGREGATE BIDS ON THE WORK COVERED BY THE CONTRACT INVOLVED RANGED FROM $72,161.68 TO $122,229.47. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED BY YOU 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; SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. WHILE IT MAY BE THAT AN ERROR WAS MADE IN YOUR BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS NOT IN ANY WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE WAS UNILATERAL- -- NOT MUTUAL--- THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE 20 COMP. GEN. 652 AND 26 ID. 415.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICES FOR THE ITEMS IN QUESTION, AS REQUESTED, OR FOR GRANTING ANY OTHER TYPE OF RELIEF.