B-157585, SEP. 15, 1965

B-157585: Sep 15, 1965

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000 AMENDMENT WAS ERRONEOUSLY ATTACHED TO THE $20. VALLEY BUILDERS' BASE BID ARRIVED LATE BUT WAS CONSIDERED SINCE THE LATE RECEIPT WAS DUE TO A DELAY IN THE MAIL. THE BID WAS RECORDED ON THE BID ABSTRACT AS $18. HAD THE VALLEY BUILDERS' BID BEEN PROPERLY RECORDED IT WOULD HAVE REMAINED LOW BIDDER. VALLEY BUILDERS WAS REQUESTED TO FURNISH PERFORMANCE AND PAYMENT BONDS FOR 50 PERCENT OF THE BID PRICE OF $18. 750 AND FURTHER WAS REQUESTED TO SIGN AND RETURN A STANDARD FORM 23. BOTH MATTERS WERE ACCOMPLISHED AND THE CONTRACT WAS AWARDED ON MARCH 29. UNDER THE LAW AND PROCUREMENT REGULATIONS THE CONTRACTING OFFICER IS REQUIRED TO ACCEPT THE LOWEST RESPONSIVE BID. IT IS CLEAR THAT THE CONTRACTING OFFICER INTENDED TO DO SO BUT WAS IN ERROR AS TO THE AMOUNT OF THAT BID.

B-157585, SEP. 15, 1965

TO SECRETARY OF THE INTERIOR:

BY LETTER DATED AUGUST 27, 1965, THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION FORWARDED THE PAPERS INVOLVED IN CONTRACT NO. 14-11-0008 1915, ISSUED TO VALLEY BUILDERS FOR THE CONSTRUCTION OF A PREFABRICATED STEEL WAREHOUSE BUILDING. VALLEY BUILDERS HAS REQUESTED THE CONTRACT BE INCREASED BY $1,000 TO REFLECT THEIR INTENDED BID.

THE FILE INDICATES THAT AN AMENDMENT BY VALLEY BUILDERS INCREASING THEIR BID PRICE BY $1,000 ARRIVED AT THE BID OPENING OFFICE ONE DAY BEFORE THEIR BASE BID OF $18,750. THE $1,000 AMENDMENT WAS ERRONEOUSLY ATTACHED TO THE $20,838 BID OF VALLEY CONSTRUCTION COMPANY. VALLEY BUILDERS' BASE BID ARRIVED LATE BUT WAS CONSIDERED SINCE THE LATE RECEIPT WAS DUE TO A DELAY IN THE MAIL. THE BID WAS RECORDED ON THE BID ABSTRACT AS $18,750, RATHER THAN $19,750 AS INCREASED BY THE AMENDMENT. HAD THE VALLEY BUILDERS' BID BEEN PROPERLY RECORDED IT WOULD HAVE REMAINED LOW BIDDER.

VALLEY BUILDERS WAS REQUESTED TO FURNISH PERFORMANCE AND PAYMENT BONDS FOR 50 PERCENT OF THE BID PRICE OF $18,750 AND FURTHER WAS REQUESTED TO SIGN AND RETURN A STANDARD FORM 23, CONSTRUCTION CONTRACT SHOWING THE CONTRACT PRICE TO BE $18,750. BOTH MATTERS WERE ACCOMPLISHED AND THE CONTRACT WAS AWARDED ON MARCH 29, 1965, IN THE AMOUNT OF $18,750. THE WORK HAS BEEN COMPLETED AND PAYMENT MADE. APPARENTLY, AT THE TIME OF PAYMENT VALLEY BUILDERS REALIZED THE ERROR AND BY LETTER OF JULY 20, 1965, HAS REQUESTED THE CONTRACT PRICE BE INCREASED BY $1,000.

UNDER THE LAW AND PROCUREMENT REGULATIONS THE CONTRACTING OFFICER IS REQUIRED TO ACCEPT THE LOWEST RESPONSIVE BID. IN THIS CASE, IT IS CLEAR THAT THE CONTRACTING OFFICER INTENDED TO DO SO BUT WAS IN ERROR AS TO THE AMOUNT OF THAT BID. AT THE SAME TIME, THE CONTRACTOR EXPECTED TO RECEIVE AN AWARD OF THE CONTRACT IN THE AMENDED AMOUNT BID BUT FAILED TO NOTICE THE ERROR WHEN HE SIGNED THE CONTRACT. WHERE THE WRITTEN INSTRUMENT DOES NOT ACCURATELY REFLECT THE INTENT OF THE PARTIES, DUE TO A MUTUAL MISTAKE, APPROPRIATE REFORMATION OF THE DOCUMENT IS THE PROPER REMEDY. 20 COMP. GEN. 533, 537. HERE, HOWEVER, THE WORK HAS BEEN COMPLETED AND PAYMENT MADE THEREFOR SO THAT REFORMATION MAY NOT BE ACCOMPLISHED.

IN VIEW OF THE CIRCUMSTANCES, THE CONTRACT MAY BE VIEWED IN THE LIGHT OF THE TRUE INTENTIONS OF THE PARTIES, AND YOU ARE ADVISED THAT THE CONTRACTOR MAY BE PAID THE ADDITIONAL $1,000. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER EVIDENCING THE PAYMENT.