B-158970, MAY 31, 1966

B-158970, MAY 31, 1966

TO THE SECRETARY OF AGRICULTURE:

WE HAVE A LETTER DATED APRIL 15, 1966, WITH ATTACHMENTS, SIGNED BY THE ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING THE ADVICE OF OUR OFFICE ON THE PROPER DISPOSITION TO BE MADE OF THE CLAIM OF ERNEST S. COOPER FOR AN UPWARD ADJUSTMENT IN THE PRICE OF CONTRACT NO. 01-9951 AWARDED ON MAY 10, 1965, BY THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE. THE CONTRACT, WHICH IS NOW ABOUT 25 PERCENT PERFORMED, CALLED FOR THE CONSTRUCTION OF THE CRANBERRY MOUNTAIN VISITORS INFORMATION CENTER, MONONGAHELA NATIONAL FOREST, POCAHONTAS COUNTY, WEST VIRGINIA, IN ACCORDANCE WITH GOVERNMENT FURNISHED SPECIFICATIONS.

THE CONTRACTOR URGES THAT PARAGRAPH 6.2D.2. OF THE ADVERTISED SPECIFICATIONS OBLIGATES HIM TO GLAZE THE FIXED AND OPERATING WINDOWS OF THE BUILDING WITH "DSB" (DOUBLE STRENGTH GRADE B) GLASS AND REQUESTS THE SUM OF $1,345 AS THE COST OF FURNISHING THE MORE EXPENSIVE INSULATING GLASS REQUIRED BY WORK ORDER NO. E ISSUED ON SEPTEMBER 23,1965. WE FIRST MUST DETERMINE WHICH GLASS THE CONTRACTOR IS OBLIGED TO FURNISH FOR THE CONTRACT PRICE, OR, ALTERNATIVELY, WHETHER THE SPECIFICATIONS WERE SO AMBIGUOUS IN THIS REGARD AS TO MAKE SUCH DETERMINATION IMPOSSIBLE. SECTION 6.2D.2. OF THE PROJECT SPECIFICATIONS RECITES AS FOLLOWS:

"2. GLASS--- (BASE BID) FIXED WINDOWS AND OPERATING WINDOWS SHALL BE GLAZED WITH DSB GLASS, EXCEPT FOR THE TOILET ROOM, WHICH SHALL BE SMOOTH ROUGH OBSCURE GLASS. ALL GLASS TO BE 1/2 INCH THICK WELDED OR METAL EDGED --- SEALED INSULATING GLASS. USE NON-HARDENING PUTTY FOR GLASS SETTING. INSULATING GLASS AT PICTURE WINDOW TO BE 1/4 INCH THICK POLISHED PLATE GLASS.

"/ALTERNATE BID) GLASS SHALL BE DSB EXCEPT FOR PICTURE WINDOW WHICH SHALL BE 1/4 INCH POLISHED PLATE.'

ALTHOUGH WE DO NOT HAVE COPIES OF THE DRAWINGS BEFORE US WE ARE INFORMED AT SECTIONS 2/10, 3/10, 11/10, 10/10 AND 7/10 ON SHEET 10 OF THE CONSTRUCTION DRAWINGS UNEQUIVOCALLY SHOW 1/2-INCH INSULATING GLASS.

THE CONTRACTOR HAS CONTENDED THAT INSULATING GLASS IS NEVER MADE WITH GRADE B PANES BUT ONLY WITH THE HIGHER QUALITY, DISTORTION FREE GRADE A PANES; HENCE HE INTERPRETED THE SPECIFICATIONS AS ESTABLISHING CONTRADICTORY REQUIREMENTS WITH RESPECT TO THE NATURE OF THE WINDOW GLASS AND COMPUTED THE BID UPON WHICH THE CONTRACT IS BASED BY MAKING PROVISION ONLY FOR THE LESS EXPENSIVE ,DSB" GLASS. THE CONTRACTING OFFICER CERTIFIES THAT HE HAS CONSULTED WITH VARIOUS GLASS MANUFACTURERS AND HAS BEEN ADVISED THAT WHILE MOST GLASS USED IN THE MANUFACTURE OF INSULATING GLASS IS OF GRADE A QUALITY, GRADE B WINDOWS ARE AVAILABLE.

INSULATING GLASS GENERALLY CONSISTS OF TWO PANES OF GLASS HERMETICALLY SEALED TOGETHER WITH AN AIR SPACE IN BETWEEN. "DSB" GLASS IS MADE UP OF A SINGLE PANE. SECTION 6.2D.2., AS WE READ IT, CALLS FOR A BASE BID PREDICATED UPON THE FURNISHING OF INSULATED GLASS COMPRISED OF GRADE B PANES AND AN ALTERNATE BID ON THE BASIS OF CONVENTIONAL "DSB" GLASS. ALTHOUGH IT IS UNDERSTANDABLE THAT A KNOWLEDGEABLE BIDDER MIGHT HAVE FOUND THE LANGUAGE OF THIS PROVISION SOMEWHAT UNCLEAR WE DO NOT BELIEVE A REASONABLY SKILLED AND EXPERIENCED CONSTRUCTION CONTRACTOR COULD HAVE MISTAKEN THE REQUIREMENT FOR INSULATING GLASS. THE SPECIFICATION CLEARLY RECITES THAT "ALL GLASS (IS) TO BE * * * INSULATING GLASS.' THE RECORD BEFORE US CONTAINS THE ASSERTION OF THE CONTRACTING OFFICER THAT SOME MANUFACTURERS HAVE MADE AND DO MAKE INSULATING GLASS OF GRADE B QUALITY PANES AND WE THEREFORE CANNOT CONCLUDE THAT THE REFERENCE TO "DSB" GLASS IN THE FIRST PARAGRAPH OF THE SECTION IS INHERENTLY CONTRADICTORY TO THE REQUIREMENT FOR INSULATING GLASS. THE COURTS HAVE FREQUENTLY STATED WITH RESPECT TO THE INTERPRETATION OF CONTRACTS THAT EFFECT SHOULD BE GIVEN TO EVERY WORD, PHRASE, CLAUSE AND SENTENCE, AND APPARENTLY CONFLICTING PROVISIONS SHOULD BE RECONCILED IF POSSIBLE. RICE GROWERS ASSOCIATION OF CALIFORNIA V. F. CARRERA AND HNO, INC., 234 F.2D 843 (1956); UNITED STATES V. SUSANNA PLANTATION, 219 F.SUPP. 31 (1963); CITIES SERVICE GAS CO. V. KELLY-DEMPSEY AND CO., 111 F.2D 247 (1940).

EVEN IF WE ASSUME WITH THE CONTRACTOR THAT NO REPUTABLE MANUFACTURER OF WINDOW GLASS WOULD UTILIZE AN INFERIOR GRADE OF GLASS IN THE MANUFACTURE OF A PRESTIGE PRODUCT SUCH AS INSULATING GLASS, IT MUST BE FURTHER ASSUMED THAT MR. COOPER READ THE SPECIFICATIONS BEFORE PREPARING HIS BID AND WAS THEREFORE AWARE OF WHAT HE CONSIDERED TO BE A PARADOX IN THE STATEMENT OF THE REQUIREMENT AT THAT TIME. PARAGRAPH 1 ENTITLED "EXPLANATIONS TO BIDDERS" OF THE "INSTRUCTIONS TO BIDDERS" (STANDARD FORM 22, JANUARY 1961 EDITION) ATTACHMENT TO THE INVITATION ENCOURAGED BIDDERS TO REQUEST CLARIFICATION OF ANY AMBIGUITIES FROM THE CONTRACTING OFFICE. FURTHERMORE THE VERY FIRST PAGE OF THE BID SCHEDULE WHICH BECAME PART OF THE CONTRACT SETS FORTH THE STIPULATION THAT "* * * SUBMISSION OF A BID ON THIS SCHEDULE SHALL BE PRIMA FACIE EVIDENCE THAT THE BIDDER * * * IS SATISFIED AS TO * * * THE CHARACTER, QUALITY * * * OF * * * MATERIALS TO BE FURNISHED * * *.' ANY DOUBT THE BIDDER MIGHT HAVE ENTERTAINED AS TO THE TYPE OF GLAZING TO BE PERFORMED ON THE VISITORS' CENTER WOULD HAVE TO BE CLASSIFIED AS A PATENT DISCREPANCY. CF. THE REMARKS OF THE COURTS IN WPC ENTERPRISES INCORPORATED V. UNITED STATES, 323 F.2D 874 (1963), AT PAGE 877, AND IN BLOUNT BROTHERS CONSTRUCTION COMPANY V. UNITED STATES, NO. 443 -60 DECIDED BY THE UNITED STATES COURT OF CLAIMS ON JUNE 11, 1965, AT PAGES 17 AND 18, CONCERNING THE ARGUMENT THAT AMBIGUITIES IN CONTRACTS DRAWN BY THE GOVERNMENT ARE TO BE CONSTRUED AGAINST THE DRAFTER, TO THE EFFECT THAT A DUTY IS PLACED UPON BIDDERS TO INQUIRE ABOUT A MAJOR PATENT DISCREPANCY IN ADVANCE OF BID SUBMISSION. ACCORDING TO THE RECORD BEFORE US MR. COOPER FAILED TO MAKE A TIMELY REQUEST FOR CLARIFICATION. WHEN A BIDDER IS CONFUSED AS TO WHICH OF TWO QUALITIES OF AN ITEM IS REQUIRED BY GOVERNMENT SPECIFICATIONS HE MAY NOT BLYTHELY SUPPOSE THE LESS EXPENSIVE GRADE IS INTENDED, SUBMIT A BID ON THIS BASIS, EXECUTE A CONTRACT AND THEN ASSERT A CLAIM FOR THE DIFFERENCE IN VALUE UPON BEING INFORMED THAT THE HIGHER QUALITY WAS INTENDED.

WE TAKE THE VIEW THAT WE HAVE NO ALTERNATIVE BUT TO TREAT MR. COOPER'S REQUEST FOR RELIEF AS A MISTAKE IN BID FIRST ALLEGED AFTER AWARD OF THE CONTRACT. THERE HAS NOT BEEN PRESENTED FOR OUR ATTENTION ANY EVIDENCE OF THE EXISTENCE OF THE MISTAKE OTHER THAN THE CONTRACTOR'S WORD WHICH WE ACCEPT AT FACE VALUE. THE GENERAL RULE IS THAT REFORMATION OF A GOVERNMENT CONTRACT WILL NOT BE GRANTED ON THE BASIS OF A MISTAKE IN BID UNLESS EITHER THE MISTAKE WAS MUTUAL AND THE WRITTEN INSTRUMENT DOES NOT PROPERLY REFLECT THE AGREEMENT OF THE PARTIES OR UNLESS RESPONSIBLE GOVERNMENT AGENTS KNEW OR HAD REASON TO BE AWARE OF THE EXISTENCE OF AN ERROR ON THE PART OF THE BIDDER. OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT. CL. 249 (1944); SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505 (1944). SEE ALSO RESTATEMENT OF CONTRACTS, SECTION 503, ILLUSTRATION NO. 1; CORBIN ON CONTRACTS, SECTIONS 607 AND 609. THE CONTRACT IN THIS CASE WAS BASED ON INVITATION FOR BIDS NO. 54-R7-65 WHICH WAS OPENED ON MAY 7, 1965, AT THE SUPERVISOR'S OFFICE IN ELKINS, WEST VIRGINIA. THE FOLLOWING WERE THE PRICES QUOTED:

CHART

BIDDER TOTAL FIXED PRICE

NESTOR $102,100.00

COOPER 108,024.80

BAILES 112,985.00

AGSTEN 124,430.00

THE LOWEST BID, THAT OF NESTER, WAS REJECTED BECAUSE OF THE BIDDER'S FAILURE TO SUBMIT A BID GUARANTEE AND TO ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 1 TO THE INVITATION. AWARD WAS MADE TO MR. COOPER ON THE BASIC WORK WITHOUT ALTERNATES.

THERE WAS NO ERROR APPARENT ON THE FACE OF THE BID AND THERE IS NO EVIDENCE TO SHOW THAT THE BID WAS NOT ACCEPTED IN GOOD FAITH AND WITHOUT KNOWLEDGE OF THE ERROR. THE PRICE QUOTED BY COOPER WAS WELL WITHIN THE RANGE OF THE BIDS SUBMITTED AND, IN OUR OPINION, WOULD NOT HAVE CAUSED REASONABLY ALERT PROCUREMENT OFFICIALS TO SUSPECT ERROR. IT MUST BE CONCLUDED THAT ACCEPTANCE OF THE COOPER BID CONSUMMATED A BINDING AND SUBSISTING CONTRACT SETTING FORTH THE RIGHTS AND OBLIGATIONS OF THE PARTIES AND THAT THERE IS NO LEGAL BASIS FOR ALLOWANCE OF ANY AMOUNT IN EXCESS OF THE PRICE STATED IN THE CONTRACT. UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88 (1915); AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75 (1922). SEE ALSO 40 COMP. GEN. 326; B-146264 DATED AUGUST 18, 1961.