B-165032, OCT. 14, 1968

B-165032, OCT. 14, 1968

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED AUGUST 8, 1968, WITH ENCLOSURES, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, SUBMITTING FOR DECISION AN APPLICATION FOR RELIEF FROM A MISTAKE MR. W. M. AUSLAND (OWNER OF AUSLAND CONSTRUCTION CO.) ALLEGES HE MADE IN HIS BID UNDER INVITATION R6-68-186 UPON WHICH FOREST SERVICE CONTRACT NO. 002123 IS BASED.

THE INVITATION WAS ISSUED ON APRIL 16, 1968, AND SOLICITED BIDS FOR WATER AND SEWER LINE CONSTRUCTION AT THE DIAMOND LAKE RECREATION AREA, UMPQUA NATIONAL FOREST, DOUGLAS COUNTY, OREGON. AWARD WAS TO BE MADE TO THE BIDDER OFFERING THE LOWEST TOTAL ACCEPTABLE BID. TEN BIDS WERE RECEIVED AND WERE OPENED ON MAY 15, 1968. THE TOTAL AGGREGATE BIDS RECEIVED WERE $181,327.20, $192,872.32, $197,720, $258,361.20, $263,994.60, $271,468.20, $291,791, $318,313.24, $335,761.32 AND $398,428. THE GOVERNMENT ENGINEER'S ESTIMATE FOR THE WORK WAS $201,610. THE LOW BIDDER WAS MR. AUSLAND, WHO HAD REDUCED HIS BID BY $10,340BY TELEGRAPHIC MODIFICATION DATED MAY 15, 1968, WHICH WAS RECEIVED PRIOR TO BID OPENING. THE CONTRACTING OFFICER HAS STATED THAT SINCE AUSLAND'S BID, AFTER TELEGRAPHIC MODIFICATION, WAS ONLY APPROXIMATELY 10 PERCENT BELOW THE ENGINEER'S ESTIMATE AND ONLY 6 PERCENT BELOW THE SECOND LOW BID AND 8-1/2 PERCENT BELOW THE THIRD LOW BID, HE DID NOT CONSIDER THAT HE WAS ON CONSTRUCTIVE NOTICE OF A POSSIBLE ERROR IN BID. THIS VIEW IS SUPPORTED BY THE FACT THAT MR. AUSLAND HAD MODIFIED HIS BID LESS THAN AN HOUR BEFORE BID OPENING, INDICATING HE HAD REEXAMINED HIS BID AS SUBMITTED. AWARD WAS THEREFORE MADE TO AUSLAND IN THE AMOUNT OF $181,327.20 ON MAY 17, 1968.

ON MAY 31, 1968, MR. AUSLAND VISITED THE CONTRACTING OFFICE AND CLAIMED HE HAD MADE AN ERROR IN HIS BID IN CALCULATING HIS UNIT PRICE FOR ITEM NO. 19 (10 - INCH PRESSURE SEWER LINE). BY LETTER DATED MAY 31, 1968, TO THE CONTRACTING OFFICER, MR. AUSLAND ALLEGED THAT HE OMITTED THE COST OF THE 10 - INCH SEWER PIPE IN ITEM NO. 19 AT $3.11 PER FOOT FOR 3,312 LINEAR FEET, OR FOR AN ALLEGED MISTAKE TOTAL OF $10,300.32. THE WORKSHEETS SUBMITTED BY THE CONTRACTOR SHOW QUOTATIONS FROM PIPE SUPPLIERS WERE ENTERED FOR USE WITH ITEM NO. 19. A FIGURE OF $4.10, APPROXIMATELY $1 HIGHER THAN THE PIPE QUOTATIONS, WAS ALSO ENTERED AFTER THE UNIT QUANTITY AND WAS TRANSFERRED TO THE INVITATION SCHEDULE OF ITEMS. THE CONTRACTOR APPEARS TO CONTEND THAT HE MEANT TO ADD THE $3.11 SEWER PIPE COST TO THE $4.10 UNIT PRICE IN ITEM NO. 19 FOR A TOTAL UNIT COST OF $7.21 ON ITEM NO. 19. OF COURSE, THIS IS NOT APPARENT ON THE FACE OF HIS BID. THERE IS NO STATEMENT BY THE CONTRACTOR AS TO THE TIME OR CIRCUMSTANCES WHEN HIS ALLEGED MISTAKE WAS DISCOVERED, AND HIS ONLY EXPLANATION APPEARS TO BE BASED ON HIS OVERSIGHT IN CONNECTION WITH THE REQUIREMENTS OF INVITATION ITEM NO. 12 (GRAVITY SEWER TRENCHING) AND HIS HASTE IN PREPARING THE BID IN ORDER TO ATTEND A MEETING.

IN THIS RESPECT, THE CONTRACTOR'S WORKSHEET (AS TO ITEM NO. 12) SHOWS TWO FIGURES CIRCLED -- $4.10 AND $4.30 -- TOGETHER WITH TOTAL FIGURES OF $40,420 AND $56,400. THE DIFFERENCE BETWEEN THESE TWO TOTAL FIGURES, THE LATTER OF WHICH WAS ENTERED AS THE ORIGINAL PRICE BID ON ITEM NO. 12, INDICATES A POSSIBILITY THAT EXCAVATION COSTS FOR THE PRESSURE SEWER (ITEM NO. 19) WERE INCLUDED IN THE EXCAVATION COSTS UNDER ITEM NO. 12. HOWEVER, AN ANALYSIS OF THE WORKSHEETS AND ADDING MACHINE TAPES SUBMITTED BY THE CONTRACTOR DOES NOT ESTABLISH WITH ANY CERTAINTY WHERE OR HOW THE ALLEGED MISTAKE OCCURRED. THE CONTRACTING OFFICER STATES THAT IT IS COMMON PRACTICE FOR AN EXPERIENCED CONTRACTOR, AFTER VIEWING AND GOING OVER A PROPOSED PROJECT, TO MAKE AN OVERALL ESTIMATE OF THE TOTAL COST AND THEN TO CALCULATE THE ITEM OR UNIT COSTS AND ADJUST THE TOTAL OF THE UNIT COSTS AGAINST THE FIRST ESTIMATED TOTAL. THE CONTRACTING OFFICER HAD NO REASON TO BELIEVE OTHER THAN THAT THE BID SUBMITTED, AS MODIFIED BY TELEGRAM, WAS THE BID INTENDED, AND NOTHING IN THE RECORD SUBMITTED HERE REQUIRES A CONTRARY CONCLUSION.

WHILE MR. AUSLAND INDICATES THAT THE OVERSIGHT IN THE BID PREPARATION MAY HAVE OCCURRED FROM THE HASTE WITH WHICH HE PREPARED THE BID IN ORDER TO ATTEND A MEETING, THE ERROR WAS IN BID PREPARATION AND, THEREFORE, CANNOT BE CONSIDERED TO BE ATTRIBUTABLE TO ANYTHING OTHER THAN THE BIDDER'S OWN OVERSIGHT.

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 AWARD WAS MADE ON THE BASIS OF THE LOWEST TOTAL ACCEPTABLE BID RATHER THAN ON AN ITEM-BY-ITEM BASIS, AND THERE WAS NOTHING ON THE FACE OF THE BID TO PUT THE CONTRACTING OFFICER ON NOTICE OF AN ERROR. MOREOVER, 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 AND B-159290, JULY 1, 1966. THE VARIANCE IN THE AMOUNT BETWEEN THE BID SUBMITTED AND THE GOVERNMENT ENGINEER'S ESTIMATE AND THE NEXT TWO LOW BIDS 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 MR. AUSLAND FROM THE OBLIGATION IMPOSED ON HIM BY THE ACCEPTANCE OF THE BID. B-160349, NOVEMBER 21, 1966.

ACCORDINGLY, THE REQUEST FOR RELIEF IS DENIED. THE FILE SUBMITTED IS RETURNED HEREWITH AS REQUESTED.