B-162563, OCT. 17, 1967

B-162563: Oct 17, 1967

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AFTER AWARD REQUESTS REFORMATION OF CONTRACT MADE ON AGGREGATE BASIS BECAUSE PRICE OF ONE ITEM IN BID WAS INCORRECTLY INSERTED AS $4. 000 WHEN IT WAS INTENDED TO BE $24. 000 MAY NOT HAVE CONTRACT PRICE INCREASED. CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES OF INDIVIDUAL ITEMS WHEN AWARD IS MADE IN AGGREGATE: HENCE ACCEPTANCE WITHOUT NOTICE OR ALLEGATION OF ERROR CONSUMATED VALID CONTRACT. SECRETARY: REFERENCE IS MADE TO LETTER ENGGC-M. THE REQUEST FOR REFORMATION IS PREDICATED ON THE ALLEGATION THAT THE BID SUBMITTED BY THE CONTRACTOR IN RESPONSE TO ITEM NO. 16 OF THE INVITATION. " WAS NOT THE PRICE IT INTENDED TO OFFER. 000 WAS INSERTED INSTEAD. THE CONTRACTOR ALSO SUBMITTED ITS WORKSHEETS UPON WHICH THE BID WAS COMPUTED WHICH INDICATE THAT $24.

B-162563, OCT. 17, 1967

CONTRACTS - MISTAKES - REFORMATION - JUSTIFICATION DECISION TO SECRETARY OF THE ARMY CONCERNING REFORMATION OF CONTRACT FOR CONSTRUCTION OF A COMMUNICATIONS MAINTENANCE FACILITY AT FORT LEWIS, WASH. BY CORPS OF ENGINEERS. A CONTRACTOR WHO, AFTER AWARD REQUESTS REFORMATION OF CONTRACT MADE ON AGGREGATE BASIS BECAUSE PRICE OF ONE ITEM IN BID WAS INCORRECTLY INSERTED AS $4,000 WHEN IT WAS INTENDED TO BE $24,000 MAY NOT HAVE CONTRACT PRICE INCREASED; CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES OF INDIVIDUAL ITEMS WHEN AWARD IS MADE IN AGGREGATE: HENCE ACCEPTANCE WITHOUT NOTICE OR ALLEGATION OF ERROR CONSUMATED VALID CONTRACT.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER ENGGC-M, DATED SEPTEMBER 22, 1967, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, SUBMITTING FOR OUR CONSIDERATION A REQUEST BY THE F.S. JONES CONSTRUCTION CO., INC., FOR THE REFORMATION OF CONTRACT NO. DACA67-67-C-0063, AWARDED BY THE SEATTLE DISTRICT, UNITED STATES ARMY CORPS OF ENGINEERS ON JUNE 28, 1967, FOR THE CONSTRUCTION OF A COMMUNICATIONS MAINTENANCE FACILITY AT FORT LEWIS, WASHINGTON.

THE REQUEST FOR REFORMATION IS PREDICATED ON THE ALLEGATION THAT THE BID SUBMITTED BY THE CONTRACTOR IN RESPONSE TO ITEM NO. 16 OF THE INVITATION, ENTITLED "LEVELING AND SURFACE COURSES," WAS NOT THE PRICE IT INTENDED TO OFFER. IN SUPPORT THEREOF, THE CONTRACTOR FURNISHED A SWORN AFFIDAVIT STATING THAT IT INTENDED TO BID $24,000 FOR THE SUBJECT ITEM BUT BECAUSE OF A CLERICAL ERROR WHICH OCCURRED IN PREPARING THE BID FORM A BID PRICE OF $4,000 WAS INSERTED INSTEAD. THE CONTRACTOR ALSO SUBMITTED ITS WORKSHEETS UPON WHICH THE BID WAS COMPUTED WHICH INDICATE THAT $24,000 WAS THE INTENDED BID ON ITEM NO. 16. ACCORDINGLY, THE CONTRACTOR HAS REQUESTED THAT THE CONTRACT PRICE BE REVISED UPWARDS BY $20,000. THE INVITATION UPON WHICH THE CONTRACT WAS BASED PROVIDED FOR AWARD IN THE AGGREGATE FOR ALL 19 ITEMS.

IT IS WELL SETTLED THAT WHEN A BIDDER MISTAKENLY SUBMITS A BID IN RESPONSE TO AN INVITATION FOR BIDS, AND THAT BID IS ACCEPTED IN GOOD FAITH BY THE CONTRACTING AGENCY, THE CONTRACTOR MUST BEAR THE CONSEQUENCES AND RESPONSIBILITIES OF THE RESULTING CONTRACTUAL RELATIONSHIP UNLESS IT CAN BE DETERMINED THAT THE MISTAKE WAS MUTUAL OR SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 3 COMP. GEN. 821; 23 ID. 596.

THE THREE BID TOTALS RECEIVED BY THE CONTRACTING AGENCY AND THE GOVERNMENT ESTIMATE, AS WELL AS THE BIDS RECEIVED ON ITEM NO. 16 WERE AS FOLLOWS:

BIDDER TOTAL BID ITEM NO. 16

F.S. JONES CONSTRUCTION CO., INC. $833,573 $ 4,000

A. G. HOMANN $866,936 $26,200

PUGET SOUND CONSTRUCTION CO.$887,867 $28,193

GOVERNMENT ESTIMATE $804,186 $24,181

IT SHOULD BE NOTED THAT THE REVISION REQUESTED BY THE CONTRACTOR WOULD INCREASE THE CONTRACT PRICE TO $853,573, WHICH IS STILL LOWER THAN THE OTHER BID PRICES RECEIVED IN RESPONSE TO THE SUBJECT INVITATION.

AS STATED ABOVE, THE INVITATION PROVIDED FOR AN AWARD IN THE AGGREGATE. IN OTHER WORDS, AWARD WAS REQUIRED TO BE MADE TO THE LOWEST AGGREGATE BIDDER. WHILE EXCEPTIONS HAVE BEEN MADE IN CERTAIN CIRCUMSTANCES NOT PRESENT HERE, IT IS THE GENERAL RULE THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHEN AWARD IS TO BE MADE IN THE AGGREGATE. 17 COMP. GEN. 534. THIS IS PARTICULARLY TRUE IN CASES SUCH AS THE INSTANT ONE WHERE THERE ARE A CONSIDERABLE NUMBER OF ITEMS AND THE AGGREGATE BID PRICES ARE FAIRLY CLOSE TO EACH OTHER. SEE ALLIED CONTRACTORS, INC. V. UNITED STATES, 310 F.2D 945.

THE RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF JONES WAS IN GOOD FAITH, NO ERROR HAVING BEEN NOTICED OR ALLEGED UNTIL AFTER AWARD. HENCE, IT MUST BE HELD THAT SUCH ACCEPTANCE CONSUMMATED A VALID AND BINDING CONTRACT. 46 COMP. GEN. 700.

FURTHERMORE, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS UPON JONES. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT. CL. 120, 163. IF JONES INADVERTENTLY USED THE WRONG FIGURE IN ITS BID FOR ITEM 16, SUCH ERROR WAS DUE TO ITS OWN NEGLIGENCE OR OVERSIGHT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, THE CONTRACTOR IS NOT ENTITLED TO BE RELIEVED FROM HIS OBLIGATION UNDER THE CONTRACT. OGDEN DOUGHERTY V. UNITED STATES, 102 CT. CL. 249.

ACCORDINGLY, NO LEGAL BASIS EXISTS FOR INCREASING THE CONTRACT PRICE OR OTHERWISE RELIEVING F.S. JONES CONSTRUCTION CO., INC., FROM ITS OBLIGATIONS UNDER THE CONTRACT.