B-155124, OCTOBER 8, 1964, 44 COMP. GEN. 193

B-155124, OCTOBER 8, 1964, 44 COMP. GEN. 193

CONTRACTS - OFFER AND ACCEPTANCE - VARIANCE BETWEEN INVITATION AND CONTRACT THE ACCEPTANCE OF A LOW BID, PRICED SLIGHTLY BELOW THE GOVERNMENT'S ESTIMATE AND GREATLY OUT OF LINE WITH THE OTHER BIDS RECEIVED, ON THE BASIS OF THE BID FORM ALONE RATHER THAN ON THE BASIS OF THE BID FORM AS QUALIFIED BY AN ACCOMPANYING LETTER, OVERLOOKED IN THE EVALUATION OF THE BID, DID NOT RESULT IN A VALID CONTRACT, THE NOTICE OF ACCEPTANCE OF THE BID HAVING BEEN SENT UNDER THE ERRONEOUS ASSUMPTION THE BID WAS IN COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS, WHEREAS THE BIDDER DID NOT INTEND TO AND DID NOT SUBMIT A BID IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS, AND THE CONTRACTING OFFICER DID NOT INTEND TO AND LACKED AUTHORITY TO ACCEPT A BID NOT IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS, AND NO CONTRACT RESULTING ABSENT A MEETING OF THE MINDS, THE PURPORTED CONTRACT SHOULD BE CANCELED AS ADMINISTRATIVELY RECOMMENDED.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, OCTOBER 8, 1964:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 4, 1964, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE VALIDITY OF CONTRACT NO. GS 05BC-3888, DATED MAY 6, 1964.

ON APRIL 2, 1964, BIDS WERE REQUESTED FOR NEW ROOFING AND REPAIRS AT THE UNITED STATES POST OFFICE, CLINTON, ILLINOIS. BIDS WERE OPENED ON APRIL 30, 1964, AND AWARD WAS MADE TO HARRY SMITH, 116 NORTH MONROE STREET, CLINTON, ILLINOIS, IN THE AMOUNT OF $1,999.75, UNDER HIS BID DATED APRIL 10, 1964. THE THREE OTHER BIDS ON THE ROOFING AND REPAIRS WERE IN THE AMOUNTS OF $3,460, $4,590 AND $5,338. THE GOVERNMENT'S ESTIMATE ON THIS JOB WAS $2,064.

SUBSEQUENT TO THE AWARD, DISCUSSIONS BETWEEN MR. SMITH AND A GENERAL SERVICES ADMINISTRATION (GSA) REPRESENTATIVE REVEALED THAT THE CONTRACTOR INTENDED TO PERFORM THE WORK IN A MANNER MATERIALLY DEVIATING FROM THE ADVERTISED SPECIFICATIONS. ON MAY 14, 1964, GSA RECEIVED A LETTER FROM MR. SMITH, STATING THAT HIS BID HAD BEEN ACCOMPANIED BY A COVERING LETTER SETTING OUT HIS PROPOSED METHOD FOR PERFORMING THE WORK ADVERTISED. MR. SMITH ENCLOSED A COPY OF THE LETTER WHICH ALLEGEDLY ACCOMPANIED THE BID. GSA CONDUCTED A SEARCH FOR THE COVERING LETTER AND IT WAS FOUND THAT THE ORIGINAL LETTER FROM MR. SMITH DATED APRIL 10, 1964, WAS IN ITS FILES BEARING FOLD MARKS AND STAPLE MARKS WHICH APPEARED TO CORRESPOND TO THOSE APPEARING ON HIS BID FORM. THIS LETTER PROPOSED SCRAPING AND BRUSHING THE ROOF, FILLING OF SURFACE CRACKS WITH JET PLASTIC CEMENT, AND RESURFACING FIBERGLAS EMBEDDED IN SEALTEX WITH A TOP COATING OF SILVERLEAF ROOF COATING. SECTION 4 OF THE SPECIFICATIONS, HOWEVER, REQUIRED REPAIR OF DEFECTS WITH HOT BITUMEN OR FELT PATCHES BEDDED IN HOT BITUMEN, RESURFACING WITH FELT BONDED WITH HOT ASPHALT OR PITCH, AND A TOP COATING OF GRAVEL OR SLAG EMBEDDED IN ASPHALT OR PITCH.

THE RECORD REVEALS THAT THE ACCEPTANCE OF THE CONTRACTOR'S BID WAS MADE ON THE BASIS OF THE BID FORM ALONE RATHER THAN ON THE BASIS OF THE BID FORM AS QUALIFIED BY THE ACCOMPANYING LETTER. WE AGREE THAT IT IS REASONABLE TO CONCLUDE THAT THE BID AS SUBMITTED WAS QUALIFIED BY THE ACCOMPANY LETTER. CONSEQUENTLY, THE PRIMARY QUESTION FOR CONSIDERATION IN THIS MATTER IS WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID AS QUALIFIED. IN THAT CONNECTION, IT WOULD APPEAR FROM THE RECORD BEFORE US THAT NO WORK HAS BEEN PERFORMED BY MR. SMITH.

A SIMILAR SITUATION WAS CONSIDERED BY OUR OFFICE IN 16 COMP. GEN. 392 WHERE AN AWARD WAS MADE IN IGNORANCE OF A MATERIAL QUALIFICATION INSERTED IN THE BID BUT NOT ABSTRACTED OR BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER UNTIL AFTER AWARD. WE HELD IN THAT CASE, WHICH IS EQUALLY APPLICABLE HERE, THAT:

IN THE AWARDING OF GOVERNMENT CONTRACTS THERE IS A WELL ESTABLISHED PRINCIPLE THAT THE CONTRACT OFFERED THE SUCCESSFUL BIDDER MUST BE THE EXACT CONTRACT WHICH WAS SUBMITTED TO COMPETITION. 8 COMP. GEN. 649, A- 56760, AUGUST 15, 1934. SEE, ALSO, PASCOE V. BARLUM, 65 ALR 833, AND ANNOTATIONS FOLLOWING SAID CASE. THE BID OF AUSTIN, NICHOLS AND COMPANY WAS NOT IN SUBSTANTIAL COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS AND FOR THAT REASON SHOULD HAVE BEEN REJECTED OR DISREGARDED BY THE CONTRACTING OFFICER.

IT IS STATED IN YOUR LETTER THAT THE "AWARD WAS MADE BEFORE THE QUALIFICATION IN THIS FIRM'S BID WAS DISCOVERED BY THE PURCHASING OFFICER * * *.' IN OTHER WORDS, IT APPEARS THAT THE PURCHASING OFFICER SENT THE NOTICE OF ACCEPTANCE UNDER THE ERRONEOUS ASSUMPTION THAT THE BID WAS IN COMPLIANCE WITH THE ADVERTISED SPECIFICATIONS. THIS BIDDER DID NOT INTEND TO AND DID NOT SUBMIT ITS BID IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS AND THE CONTRACTING OFFICER DID NOT INTEND TO AND LACKED THE AUTHORITY TO ACCEPT A BID NOT IN ACCORDANCE WITH THE ADVERTISED SPECIFICATIONS.

IT IS ELEMENTARY THAT A CONTRACT CAN RESULT ONLY FROM A MUTUAL ASSENT, A CONSCIOUS MEETING OF THE MINDS, OF THE CONTRACTING PARTIES IN A COMMON INTENTION. THERE BEING NO SUCH MEETING OF THE MINDS IN THE INSTANT CASE, IT IS CLEAR THAT NO CONTRACT RESULTED FROM THE NEGOTIATIONS. * * *

ACCORDINGLY, THE PURPORTED CONTRACT SHOULD BE CANCELED AS ADMINISTRATIVELY RECOMMENDED. SEE, ALSO, PRESTEX INC. V. UNITED STATES, CT.CL. NO. 415-61, DECIDED JULY 12, 1963, 320 F.2D 367.

THE DOCUMENTS SUBMITTED WITH THE LETTER OF SEPTEMBER 4, 1964, ARE RETURNED.