B-160349, NOV. 21, 1966

B-160349, NOV. 21, 1966

TO THE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO LETTER 6320 DATED OCTOBER 26, 1966, WITH ENCLOSURES, FROM THE DIRECTOR, DIVISION OF ADMINISTRATIVE SERVICES, FOREST SERVICE, SUBMITTING FOR DECISION AN APPLICATION FOR RELIEF FROM A MISTAKE MR. A. GORDON SCHLAFKE ALLEGES HE MADE IN HIS BID UNDER INVITATION R4-67-3 UPON WHICH CONTRACT 26-9 IS BASED.

THE INVITATION WAS ISSUED ON JULY 8, 1966, FOR CONSTRUCTION OF A DISTRICT RANGER OFFICE BUILDING AND RELATED IMPROVEMENTS AT GARDEN VALLEY, BOISE COUNTY, IDAHO. EIGHT LUMP-SUM BIDS WERE RECEIVED AND WERE OPENED ON AUGUST 8, 1966. THE BIDS RECEIVED WERE $39,755, $44,619, $45,243.77, $45,926, $46,820, $47,950, $50,400 AND $55,000. THE GOVERNMENT ENGINEER'S ESTIMATE FOR THE WORK WAS $44,575. THE LOW BIDDER WAS MR. SCHLAFKE. DID NOT ATTEND THE BID OPENING BUT OBTAINED THE BID RESULTS BY TELEPHONE IMMEDIATELY THEREAFTER. THE CONTRACTING OFFICER HAS STATED THAT SINCE THE BID WAS WITHIN 11 PERCENT OF THE ENGINEER'S ESTIMATE, HE DID NOT CONSIDER THAT HE WAS ON CONSTRUCTIVE NOTICE OF A POSSIBLE ERROR IN BID. AWARD WAS THEREFORE MADE TO MR. SCHLAFKE ON AUGUST 10, 1966.

ON AUGUST 12, 1966, MR. SCHLAFKE TELEPHONED THE CONTRACTING OFFICER AND INFORMED HIM OF AN ERROR IN THE BID, STATING HE HAD NOT INCLUDED COSTS FOR PERFATAPING AND PAINTING. WRITTEN CORROBORATION WAS RECEIVED BY THE CONTRACTING OFFICER ON AUGUST 25, 1966. ENCLOSED WITH THE CONTRACTOR'S CLAIM WERE TWO WORKSHEETS, EACH TOTALING $39,754.07 AND ROUNDED OFF TO $39,755, THE AMOUNT OF THE ACCEPTED BID. ON ONE WORKSHEET AFTER THE ITEM "DRY WALL AND BACKER" THERE APPEARS THE NOTATION "NO TAPE" AND AFTER THE SAME ITEM ON THE OTHER WORKSHEET THE NOTATION "NO TAPING.' FURTHER, THE WORKSHEETS DO NOT CONTAIN AN ITEM FOR PAINTING. ENCLOSED WITH THE CONTRACTOR'S DOCUMENTATION SUBMITTED IN SUPPORT OF THE ALLEGATION OF MISTAKE WERE TWO SUBBIDS FOR TAPING AND PAINTING. ONE DATED AUGUST 7, 1966, TOTALS $3,082 AND THE OTHER, DATED AUGUST 12, 1966, TOTALS $3,084. THE ADDITIONAL AMOUNT CLAIMED BY MR. SCHLAFKE FOR THE WORK IS $3,062. MR. SCHLAFKE HAS STATED THE REASONS FOR OVERLOOKING THE TAPING AND PAINTING IN COMPUTING THE BID WERE THAT HE RECEIVED THE PRINTS AND SPECIFICATIONS TO BID ON AUGUST 2 AND WAS UNABLE TO COMPLETE HIS ESTIMATING IN TIME FOR MAILING SO THAT HE HAD TO DELIVER THE BID TO OGDEN IN PERSON; THAT HIS NAME WAS SPELLED WRONG IN THE AGC BULLETIN AND BY THE FOREST SERVICE WHICH COULD HAVE HINDERED HIS RECEIVING THE SUBBIDS, AND THAT HE DID NOT RECEIVE A PAINT AND TAPE BID UNTIL AFTER OPENING AND THAT ALTHOUGH HE MADE A NOTE OF THE LACK OF ANY SUCH BID, HE OVERLOOKED IT.

WHILE MR. SCHLAFKE INDICATES THAT THE OVERSIGHT IN THE BID PREPARATION MAY HAVE OCCURRED FROM THE HASTE WITH WHICH HE PREPARED THE BID BECAUSE OF THE LIMITED TIME WHICH REMAINED BEFORE THE BID OPENING, THE ERROR WAS IN BID PREPARATION AND THEREFORE CANNOT BE CONSIDERED TO BE ATTRIBUTABLE TO ANYTHING OTHER THAN THE BIDDER'S OWN OVERSIGHT. MOREOVER, IT IS OBSERVED THAT DESPITE THE BIDDER'S CONTENTION AS TO THE MISSPELLING OF HIS NAME, THE SUBBIDS SUBMITTED TO SUPPORT THE ERROR ARE ADDRESSED TO GORDON SCHLAFKE AT THE CORRECT STREET ADDRESS.

IN ANY EVENT, IN ORDER FOR AN ERROR IN BID ALLEGED AFTER AWARD TO BE CORRECTED, IT MUST BE ESTABLISHED THAT THE CONTRACTING OFFICER HAD EITHER ACTUAL OR CONSTRUCTIVE NOTICE OF THE PROBABILITY OF AN ERROR IN THE BID AT THE TIME OF AWARD. THE BID WAS A LUMP-SUM BID AND THERE WAS NOTHING ON THE FACE OF THE BID TO PUT THE CONTRACTING OFFICER ON NOTICE OF AN ERROR. THE VARIANCE IN THE AMOUNT BETWEEN THE BID SUBMITTED AND THE GOVERNMENT ENGINEER'S ESTIMATE AND THE OTHER BIDS RECEIVED WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE ERROR IN BID AND WE MUST, THEREFORE, CONCLUDE THAT THE MISTAKE WAS UNILATERAL. THE ACCEPTANCE OF THE BID APPEARS TO HAVE BEEN IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. ANY ERROR WHICH WAS MADE IN THE BID WAS UNILATERAL AND THEREFORE DOES NOT ENTITLE THE CLAIMANT TO RELIEF. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT.CL. 249, 259; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

SINCE THE CONTRACT WAS AWARDED BEFORE ANY ALLEGATION OF ERROR, THERE IS NO LEGAL BASIS FOR RELIEVING A. GORDON SCHLAFKE FROM THE OBLIGATION IMPOSED ON HIM BY THE ACCEPTANCE OF THE BID.

ACCORDINGLY, THE REQUEST FOR RELIEF IS DENIED.

THE FILE SUBMITTED WITH THE FOREST SERVICE LETTER OF OCTOBER 26, 1966, IS RETURNED.