B-157432, AUG. 27, 1965

B-157432: Aug 27, 1965

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MAY BE REFORMED ON THE BASIS OF AN ERROR ALLEGED TO HAVE BEEN MADE IN HIS BID UPON WHICH THE CONTRACT WAS BASED. TWO BIDS WERE RECEIVED AND OPENED UNDER INVITATION FOR BIDS NO. AWARD WAS MADE ON JUNE 28. 000 MISTAKE WAS MADE IN HIS BID AS EVIDENCED BY PHOTO COPIES OF HIS WORKSHEETS SHOWING A TRANSPOSITION ERROR WHEREBY SUBCONTRACT TOTALS WERE ERRONEOUSLY CHANGED FROM $5. THE CONTRACTING OFFICER HAS REPORTED THAT NO DEVIATIONS WERE INDICATED ON THE FACE OF THE BID AND THAT HE WAS NOT IN ANY WAY ON NOTICE OF PROBABILITY OF ERROR. WE HAVE CONSISTENTLY HELD THAT THE CONTRACTING OFFICER IS NOT CHARGEABLE WITH NOTICE OF PROBABLE ERROR WHERE ONLY TWO BIDS HAVE BEEN RECEIVED. THERE BEING NO MORE REASON FOR REGARDING THE LOW BID TOO LOW THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN BIDDING TOO HIGH. 20 COMP.

B-157432, AUG. 27, 1965

TO THE SECRETARY OF AGRICULTURE:

BY LETTER DATED AUGUST 9, 1965, WITH ENCLOSURES, THE ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTED OUR DECISION AS TO WHETHER CONTRACT NO. 12- 14-100-8276 (51) WITH THE MCDUFFIE CONSTRUCTION CO. MAY BE REFORMED ON THE BASIS OF AN ERROR ALLEGED TO HAVE BEEN MADE IN HIS BID UPON WHICH THE CONTRACT WAS BASED.

ON JUNE 25, 1965, TWO BIDS WERE RECEIVED AND OPENED UNDER INVITATION FOR BIDS NO. ARS-432-B-65, COVERING THE CONSTRUCTION OF A RESIDENCE AT SAVANNAH, GEORGIA. MCDUFFIE BID A TOTAL OF $15,514 AND THE ONLY OTHER BIDDER SUBMITTED A TOTAL PRICE OF $20,783. THE GOVERNMENT ESTIMATED THE JOB AT APPROXIMATELY $17,000. AWARD WAS MADE ON JUNE 28, 1965, TO MCDUFFIE AT HIS LOW BID PRICE. SUBSEQUENT TO AWARD, MCDUFFIE ALLEGED THAT A $2,000 MISTAKE WAS MADE IN HIS BID AS EVIDENCED BY PHOTO COPIES OF HIS WORKSHEETS SHOWING A TRANSPOSITION ERROR WHEREBY SUBCONTRACT TOTALS WERE ERRONEOUSLY CHANGED FROM $5,700 TO $3,700 WHEN CARRIED TO THE SUMMARY COLUMN OF THE WORKSHEET. THEREAFTER, MCDUFFIE ADVISED THAT NOTWITHSTANDING HIS "NEGLIGENCE," HE WOULD PROCEED UNDER THE CONTRACT WITH THE HOPE THAT THE ERROR WOULD BE ADJUSTED.

THE CONTRACTING OFFICER HAS REPORTED THAT NO DEVIATIONS WERE INDICATED ON THE FACE OF THE BID AND THAT HE WAS NOT IN ANY WAY ON NOTICE OF PROBABILITY OF ERROR.

WE HAVE CONSISTENTLY HELD THAT THE CONTRACTING OFFICER IS NOT CHARGEABLE WITH NOTICE OF PROBABLE ERROR WHERE ONLY TWO BIDS HAVE BEEN RECEIVED, THERE BEING NO MORE REASON FOR REGARDING THE LOW BID TOO LOW THAN FOR CONSIDERING THAT A MISTAKE WAS MADE BY THE HIGH BIDDER IN BIDDING TOO HIGH. 20 COMP. GEN. 286. HENCE, WE CONCLUDE THAT THE CONTRACTING OFFICER WAS NOT ON NOTICE OF ERROR PRIOR TO AWARD.

SINCE THE ERROR WAS ALLEGED AFTER AWARD, THE PRIMARY QUESTION IS NOT WHETHER A BONA FIDE MISTAKE IN BID WAS MADE BUT RATHER WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. WHILE IT MAY APPEAR THAT A $2,000 ERROR WAS MADE, THE CONTRACTING OFFICER HAD NO ACTUAL KNOWLEDGE OR REASON TO KNOW OF THE EXISTENCE OF THE ERROR WHEN HE AWARDED THE CONTRACT IN GOOD FAITH. THE ACCEPTANCE OF THE BID, UNDER THESE CIRCUMSTANCES, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. UNITED STATES V. NEW YORK AND PUERTO RICO STEAMSHIP COMPANY, 239 U.S. 88 (1915); UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313 (1919); AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75 (1922); RUMLEY V. UNITED STATES, 285 F.2D 773 (1961); OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249 (1944); SALIGMAN ET. AL. V. UNITED STATES, 56 F.SUPP. 505 (1944).

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120 (1943). THE ERROR MADE HERE WAS UNILATERAL AND SOLELY ATTRIBUTABLE TO NEGLIGENCE BY THE CONTRACTOR. THE ERROR NOT BEING MUTUAL, AND THE CONTRACTING OFFICER NOT BEING CHARGEABLE WITH NOTICE THEREOF AS OF THE TIME OF AWARD, RELIEF MUST BE DENIED. COMP. GEN. 326; 26 ID. 415; B-152953 DATED DECEMBER 13, 1963; 5 WILLISTON ON CONTRACTS, REVISED EDITION, SECTION 1578; 3 CORBIN ON CONTRACTS, SECTIONS 610, 614.

ACCORDINGLY, ON THE RECORD BEFORE US, THERE IS NO LEGAL BASIS TO INCREASE THE PRICE SPECIFIED IN CONTRACT NO. 12-14-100-8276 (51) AS REQUESTED BY MCDUFFIE. THE PAPERS TRANSMITTED WITH THE LETTER OF AUGUST 9, 1965, ARE RETURNED.