B-159109, JUL. 25, 1966

B-159109: Jul 25, 1966

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ELECTRICAL CONTRACTOR: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30. WAS FOR THE LAYING OF UNDERGROUND ELECTRICAL CABLE AT THE ARMED FORCES RESERVE CENTER. THREE BIDS WERE RECEIVED AT THE TIME OF THE BID OPENING. THE GOVERNMENT ESTIMATE WAS IN THE AMOUNT OF $3. AWARD WAS MADE TO YOU ON JANUARY 25. ACCOMPANYING THE SPECIFICATIONS INCLUDED IN THE INVITATION FOR BIDS WAS DRAWING NO. 110. BENEATH THE PHRASE "PLOT PLAN" ON THE DRAWING WAS THE SCALE "1 INCH EQUALS 20 FEET.'. TO THE RIGHT OF THIS WERE THE GRAPHIC SCALES. THE SPECIFICATIONS SPECIFICALLY PROVIDED IN PARAGRAPH 1A.7 THAT THE "DRAWING INCLUDED WITH THE SPECIFICATION IS HALF-SIZE.'. YOU ADVISED THAT AN ERROR HAD BEEN MADE IN YOUR BID IN THAT THE SCALE YOU USED TO DETERMINE THE LENGTH OF CABLE AND EXCAVATION NECESSARY WAS 1 INCH EQUALS 20 FEET.

B-159109, JUL. 25, 1966

TO DICK WHEELER, ELECTRICAL CONTRACTOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30, 1966, REQUESTING RELIEF BECAUSE OF AN ERROR ALLEGEDLY MADE WHEN BIDDING ON CONTRACT NBY- 71689 AWARDED TO YOU BY THE DEPARTMENT OF THE NAVY, NAVAL FACILITIES ENGINEERING COMMAND (FORMERLY BUREAU OF YARDS AND DOCKS), NORTHWEST DIVISION.

THE INVITATION FOR BIDS, ISSUED DECEMBER 30, 1965, WAS FOR THE LAYING OF UNDERGROUND ELECTRICAL CABLE AT THE ARMED FORCES RESERVE CENTER, IDAHO FALLS, IDAHO. THREE BIDS WERE RECEIVED AT THE TIME OF THE BID OPENING, JANUARY 18, 1966. YOU SUBMITTED THE LOW BID ON BID ITEM NO. 1 IN THE AMOUNT OF $3,125. THE GOVERNMENT ESTIMATE WAS IN THE AMOUNT OF $3,670. AWARD WAS MADE TO YOU ON JANUARY 25, 1966, WITH COMPLETION OF THE CONTRACT SCHEDULED FOR MAY 25, 1966.

ACCOMPANYING THE SPECIFICATIONS INCLUDED IN THE INVITATION FOR BIDS WAS DRAWING NO. 110,293,"PLOT PLAN AND DETAILS," TO BE USED BY BIDDERS IN DETERMINING THE AMOUNT OF CABLE AND EXCAVATION WORK REQUIRED FOR THE PROJECT. BENEATH THE PHRASE "PLOT PLAN" ON THE DRAWING WAS THE SCALE "1 INCH EQUALS 20 FEET.' TO THE RIGHT OF THIS WERE THE GRAPHIC SCALES, TO BE USED BY CONTRACTORS FOR THE PURPOSE OF SCALING OF DIMENSIONS, WHICH INDICATED THAT 1/2 INCH EQUALS 20 FEET. THE SPECIFICATIONS SPECIFICALLY PROVIDED IN PARAGRAPH 1A.7 THAT THE "DRAWING INCLUDED WITH THE SPECIFICATION IS HALF-SIZE.' BY LETTER DATED MARCH 17, 1966, ADDRESSED TO THE OFFICER IN CHARGE OF CONSTRUCTION, SEATTLE, WASHINGTON, YOU ADVISED THAT AN ERROR HAD BEEN MADE IN YOUR BID IN THAT THE SCALE YOU USED TO DETERMINE THE LENGTH OF CABLE AND EXCAVATION NECESSARY WAS 1 INCH EQUALS 20 FEET, THEREBY BASING YOUR BID ON APPROXIMATELY ONE-HALF THE AMOUNT OF CABLE NECESSARY TO PERFORM UNDER THE CONTRACT.

THE CONTRACT HAD ALREADY BEEN AWARDED TO YOU BEFORE ANY ALLEGATION OF ERROR, THEREFORE, THE QUESTION HERE INVOLVED IS NOT WHETHER YOU MADE A BONA FIDE MISTAKE IN THE PREPARATION OF YOUR QUOTATION, BUT WHETHER, NEVERTHELESS, A LEGAL AND BINDING CONTRACT WAS FORMED BY THE ACCEPTANCE OF THE BID. IN VIEW OF THE FACT THAT THE MISTAKE WAS NOT MUTUAL, AND NOT ALLEGED UNTIL AFTER PERFORMANCE HAD BEGUN, THERE IS NO LEGAL BASIS FOR APPROVING ANY RELIEF UNLESS THE EVIDENCE INDICATES THAT THE SPECIFICATIONS AND DRAWING WERE MISLEADING AND SUBJECT TO MISINTERPRETATION, OR THAT THE CONTRACTING OFFICER HAD CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF YOUR ALLEGED ERROR.

WE ARE OF THE OPINION THAT THE MANNER IN WHICH THE DRAWING AND SPECIFICATIONS WERE PRESENTED WOULD NOT BE MISLEADING AND SUBJECT TO MISINTERPRETATION. NOT ONLY DOES PARAGRAPH 1A.7 OF THE SPECIFICATIONS SPECIFICALLY STATE THAT THE ACCOMPANYING DRAWING IS HALF-SCALE, BUT THE PLOT PLAN ITSELF INDICATED THAT 1/2 INCH EQUALS 20 FEET. THIS IS CLEARLY EVIDENCED BY THE GRAPHIC SCALE, BY THE LENGTH DESIGNATED ON THE DRAWING FOR THE EXISTING CONDUIT (IT WAS MARKED "APPROX. 40 FEET" AND IT MEASURES 1 INCH), AND BY THE LENGTH DESIGNATED ON THE DRAWING FOR THE CABLE TRENCH AND CONDUIT UNDER THE ROADWAY (MARKED "30 FT. LONG" AND IT MEASURES APPROXIMATELY 3/4 OF AN INCH).

THERE WAS NO APPARENT ERROR ON THE FACE OF YOUR QUOTATION. WHILE THERE WAS SOME DISPARITY BETWEEN YOUR LOW PRICE AND THE GOVERNMENT ESTIMATE, THE DISPARITY WAS SLIGHTLY LESS THAN 15 PERCENT. THE SECOND LOW BID WAS ALSO LOWER THAN THE GOVERNMENT ESTIMATE AND THERE WAS NO APPARENT ERROR UPON THE FACE OF THAT QUOTATION EITHER. UNDER THESE CIRCUMSTANCES WE DO NOT BELIEVE THAT THE DISPARITY BETWEEN YOUR BID PRICE AND THE GOVERNMENT ESTIMATE WAS SUFFICIENT TO HAVE PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR.

IT IS A WELL ESTABLISHED RULE OF CONTRACT LAW THAT THE ACCEPTANCE OF A BID SUCH AS HERE INVOLVED, IN GOOD FAITH AND WITHOUT NOTICE OF ERROR, CONSUMMATES A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313 (1919); AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75 (1922); SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505 (D.C.E.D.PA. 1944).