B-166996, SEP. 19, 1969

B-166996, SEP. 19, 1969

CONTRACTS - ADDITIONAL COSTS DECISION DENYING ADDITIONAL COSTS INCURRED BY FORUM CONSTRUCTION CO., INC., IN CONSTRUCTION OF BARRACKS AT SAN MATEO AND SAN ONOFRE, MARINE CORPS BASE ON BASIS OF UNAVAILABILITY OF PURCHASE DESCRIPTION OF COMPONENT. CONTRACTOR WHO, ALLEGES THAT BID WAS BASED ON FURNISHING SIMPLE WOOD WARDROBES RATHER THAN MORE EXPENSIVE TYPE, AND THAT BID WAS SUBMITTED WITHOUT OBTAINING PURCHASE DESCRIPTION MAY NOT BE RELIEVED OF CONTRACT OBLIGATION SINCE BIDDER VERIFIED BID BEFORE AWARD AND THERE WAS NOTHING ON FACE OF BID TO SHOW THAT BIDDER DID NOT INTEND TO MEET REQUIRED SPECIFICATIONS.

TO GOOD, POTTER AND WILDMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 30, 1969, SUBMITTING A CLAIM ON BEHALF OF FORUM CONSTRUCTION CO., INC. (FORUM), FOR REIMBURSEMENT OF ADDITIONAL COSTS ALLEGED TO HAVE BEEN INCURRED BY THE CORPORATION UNDER DEPARTMENT OF THE NAVY CONTRACTS NOS. N62473-67-C 3087 AND -3089, DATED MAY 15 AND JUNE 4, 1968, RESPECTIVELY. RECEIPT IS ALSO ACKNOWLEDGED OF YOUR LETTER OF AUGUST 14, 1969, WITH ENCLOSURES.

THE TWO CITED CONTRACTS CALL FOR THE CONSTRUCTION OF BARRACKS AT THE SAN MATEO AREA AND THE SAN ONOFRE AREA, MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA,"COMPLETE AND READY FOR USE.' SECTION 12A, ENTITLED "BUILT-IN CASEWORK" OF THE SPECIFICATIONS INCLUDED IN EACH CONTRACT, SET FORTH THE REQUIREMENT THAT THE NAVAL FACILITIES ENGINEERING COMMAND (NAVFAC) PURCHASE DESCRIPTION FOR WARDROBES FOR BACHELOR ENLISTED QUARTERS, DATED JANUARY 10, 1968, SHALL APPLY. THIS SECTION ALSO ADVISED BIDDERS TO REFER TO SECTION 1B OF THE SPECIFICATIONS FOR ADDITIONAL INFORMATION. SECTION 1B.5 ENTITLED "SPECIFICATIONS AND STANDARDS" IN TURN STATES: "* * * NAVFAC, YARDS AND DOCKS, FEDERAL, AND MILITARY SPECIFICATIONS MAY BE ORDERED FROM COMMANDING OFFICER, U.S. NAVAL SUPPLY DEPOT, 5801 TABOR AVENUE, PHILADELPHIA, PENNSYLVANIA 19120. HOWEVER, A COPY OF ALL REFERENCED DOCUMENTS WILL BE AVAILABLE FOR EXAMINATION ONLY AT THE SOUTHWEST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, 1220 PACIFIC HIGHWAY, SAN DIEGO, CALIFORNIA 92132.' FURTHER, THE COVER SHEET ON BOTH CONTRACTS CONTAINS THE FOLLOWING NOTICE: "ALL INQUIRIES CONCERNING ANY PHASE OF THIS SPECIFICATION PRIOR TO BID OPENING, SHALL BE PRESENTED TO THE CONSTRUCTION DIVISION, SOUTHWEST DIVISION NAVAL FACILITIES ENGINEERING COMMAND, ROOM 117 TELEPHONE AREA CODE 714, LOCAL NO. 235 3768. THE GOVERNMENT SPECIFICATIONS AND FORMS MENTIONED, NON GOVERNMENT PUBLICATIONS, AND OTHER INFORMATION NECESSARY MAY BE EXAMINED ON APPLICATION, TO ROOM 206, SOUTHWEST DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, 1220 PACIFIC HIGHWAY, SAN DIEGO, CALIFORNIA 92132.'

IN YOUR LETTER OF APRIL 30, 1969, YOU STATE THAT PRIOR TO SUBMITTING A BID ON THE SAN MATEO JOB, A REPRESENTATIVE OF FORUM CALLED THE PLAN ISSUE DEPARTMENT IN SAN DIEGO, CALIFORNIA, AND REQUESTED THREE SETS OF PLANS AND SPECIFICATIONS. AFTER RECEIPT OF THE PLANS AND SPECIFICATIONS, FORUM FOUND THAT THEY REFERRED TO A CERTAIN PURCHASE DESCRIPTION DATED JANUARY 10, 1968, ENTITLED "WARDROBE, CHEST, BOOKSHELF AND DESK UNITS, BACHELOR ENLISTED QUARTERS.' FORUM THEN CONTACTED THE PLAN ISSUE SECTION AT SAN DIEGO AND WAS ADVISED THAT THE PURCHASE DESCRIPTION WAS NOT AVAILABLE. YOU ALSO STATE THAT BEFORE SUBMITTING ITS BID, FORUM EXAMINED ANOTHER BARRACKS BUILDING AT CAMP PENDLETON (CAMP HORNO) AND NOTED THAT WARDROBES OF SIMPLE WOOD CONSTRUCTION, SUBSTANTIALLY THE SAME IN CONFIGURATION AS THOSE ILLUSTRATED IN THE SAN MATEO JOB PLANS, WERE BEING INSTALLED. ASSUMING THAT THE SAME TYPE OF WARDROBES WOULD BE REQUIRED IN THE SAN MATEO JOB, FORUM SUBMITTED A BID WHICH INCLUDED THE AMOUNT OF $16,600 FOR THE UNITS. LATER, FORUM SUBMITTED A BID ON THE SAN ONOFRE PROJECT ALSO ASSUMING THAT WARDROBES SIMILAR TO THOSE INSTALLED AT CAMP HORNO WOULD BE REQUIRED. YOU ALLEGE THAT AFTER RECEIVING AWARD OF BOTH CONTRACTS, FORUM OBTAINED A COPY OF THE PURCHASE DESCRIPTION AND THEN FOUND OUT THAT THE WARDROBES WERE MORE COSTLY THAN THOSE IT ORIGINALLY BID ON. ACCORDINGLY, CLAIM IS NOW MADE FOR PAYMENT OF ADDITIONAL COMPENSATION AMOUNTING TO $19,200 ON EACH CONTRACT OR AN AGGREGATE TOTAL OF $38,400 ON BOTH CONTRACTS.

IT IS YOUR CONTENTION THAT THE ERROR IN UNDERESTIMATING THE TOTAL COST OF CONSTRUCTION OF THE TWO PROJECTS WAS DUE TO THE FAILURE OF THE GOVERNMENT TO MAKE AVAILABLE, PRIOR TO THE TIME FOR SUBMISSION OF BIDS, COPIES OF THE WARDROBE PURCHASE DESCRIPTION DATED JANUARY 10, 1968, AND WAS NOT DUE TO ANY NEGLIGENCE ON THE PART OF FORUM, THE CONTRACTOR. IN REGARD TO YOUR CONTENTION THAT IT IS A GENERAL PRACTICE TO INCORPORATE BY REFERENCE CONSTRUCTION STANDARDS ONLY BUT NOT DESIGN STANDARDS, THE ADMINISTRATIVE OFFICE STATES THAT THREE OTHER BARRACKS CONTRACTS, NOS. N62473-67-C-3022, -3030, AND -3088, WITH THE SAME PURCHASE DESCRIPTION FOR WARDROBES INCORPORATED BY REFERENCE WERE ADVERTISED AND AWARDED BY THE SOUTHWEST DIVISION, NAVFAC, DURING APPROXIMATELY THE SAME TIME PERIOD AS THE CONTRACTS IN QUESTION. IT ALSO STATES THAT THE WARDROBES AND RELATED CASEWORK TO MEET THE REQUIRED SPECIFICATIONS WERE FURNISHED WITH NO COMPLAINTS FROM THE OTHER CONTRACTORS REGARDING ANY DIFFICULTIES IN OBTAINING THE PURCHASE DESCRIPTION FOR WARDROBES.

THE INVITATIONS FOR BIDS WERE CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT THE WARDROBES WERE TO BE FURNISHED IN ACCORDANCE WITH NAVFAC PURCHASE DESCRIPTION FOR WARDROBES FOR BACHELOR ENLISTED QUARTERS, DATED JANUARY 10, 1968. ALTHOUGH FORUM CONTENDS THAT A COPY OF THE PURCHASE DESCRIPTION WAS NOT ATTACHED TO COPIES OF THE INVITATIONS, SUCH FACT, STANDING ALONE, IS NOT CONCLUSIVE OF FORUM'S LEGAL RIGHT TO ADDITIONAL COMPENSATION. IT IS REGRETTABLE THAT FORUM MAY HAVE BEEN UNABLE TO OBTAIN A COPY OF THE PURCHASE DESCRIPTION IN QUESTION PRIOR TO THE TIME IT SUBMITTED ITS BIDS, BUT SUCH FACT ALONE WOULD NOT BE A SUFFICIENT BASIS FOR GRANTING THE REQUESTED RELIEF. WHILE FORUM CONTENDS THAT ITS BIDS WERE SUBMITTED ON THE BASIS OF THE WARDROBES BEING MANUFACTURED OF SIMPLE WOOD, NOTHING WAS INSERTED IN ITS BIDS, OR OTHERWISE SHOWN AT THE TIME THE BIDS WERE SUBMITTED, TO INDICATE SUCH AN INTENTION. CONSEQUENTLY, IT WAS TO BE ASSUMED THAT THE BIDS WERE SUBMITTED ON THE BASIS OF FURNISHING WARDROBES CONFORMING TO THE REQUIREMENTS OF THE PURCHASE DESCRIPTION INCORPORATED INTO THE INVITATIONS, AND IT APPEARS THAT THE BIDS WERE EVALUATED AND ACCEPTED ON THAT BASIS. IT IS CLEAR THAT ANY ERRORS MADE BY THE CORPORATION IN ITS BIDS WERE DUE SOLELY TO ITS OWN NEGLIGENCE IN ASSUMING THAT THE WARDROBES CALLED FOR IN THE PURCHASE DESCRIPTION IN QUESTION WERE SIMILAR TO THOSE BEING INSTALLED IN A BARRACKS BUILDING UNDER CONSTRUCTION AT CAMP HORNO. THUS, THE ERRORS WERE UNILATERAL -- NOT MUTUAL -- AND THEREFORE DO NOT ENTITLE THE CORPORATION 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. ALSO, SEE, 20 COMP. GEN. 652 AND 27 ID. 718.

THE RECORD INDICATES THAT IN VIEW OF THE DIFFERENCE BETWEEN THE BIDS OF FORUM ON THE PROJECTS INVOLVED AND THE NEXT LOW BIDS RECEIVED THEREON, THE CORPORATION WAS REQUESTED TO VERIFY ITS BIDS IN WRITING BY LETTERS DATED MAY 6 AND 28, 1968, FROM THE CONTRACTING OFFICER, WHEREIN HE ATTACHED COPIES OF THE ABSTRACTS OF BIDS SHOWING THE RANGE OF THE BIDS RECEIVED ON THE TWO PROJECTS. BY LETTER DATED MAY 7, 1968, AND TELEGRAM OF MAY 28, 1968, FORUM VERIFIED ITS BIDS ON THE TWO PROJECTS. THE TWO BIDS OF FORUM ON THE CONSTRUCTION OF THE BARRACKS IN THE SAN MATEO AND SAN ONOFRE AREAS WERE ACCEPTED ON MAY 15 AND JUNE 4, 1968, RESPECTIVELY.

THE RECORD ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT TO ASCERTAIN THE CORRECTNESS OF FORUM'S BIDS WHEN IT WAS REQUESTED TO REVIEW ITS BIDS TO DETERMINE WHETHER AN ERROR HAD OCCURRED, AT WHICH TIME FORUM WAS FURNISHED COPIES OF THE ABSTRACTS OF BIDS RECEIVED ON THE TWO PROJECTS. IT WAS NOT UNTIL AFTER FORUM UNEQUIVOCALLY CONFIRMED ITS BIDS THAT THE CONTRACTING OFFICER CONSIDERED THEM CORRECT AND PROPER FOR AWARD. HAD THE CONTRACTING OFFICER THEREAFTER NOT AWARDED THE CONTRACTS TO FORUM AS THE LOWEST RESPONSIBLE BIDDER, HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. SEE CARNEGIE STEEL CO. V CONNELLY, 97 A. 774; SHRIMPTON MFG. COMPANY V BRIN, 125 S.W. 942; ALABAMA SHIRT AND TROUSER CO. V UNITED STATES, 121 CT. CL. 313; 37 COMP. GEN. 786.

THE ACCEPTANCE, AFTER CONFIRMATION, OF FORUM'S BIDS WAS IN GOOD FAITH -- NO ERRORS HAVING BEEN ALLEGED UNTIL AFTER AWARD -- AND UNDER THE CIRCUMSTANCES CONSUMMATED VALID AND BINDING CONTRACTS WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED BY ANY OFFICER OF THE GOVERNMENT IN THE ABSENCE OF ADEQUATE CONSIDERATION, AND CONSIDERATIONS OF SYMPATHY FOR POSSIBLE HARDSHIPS OR MISFORTUNES TO THE CONTRACTOR DO NOT AUTHORIZE ANY EXCEPTION TO THE RULE. SEE 22 COMP. GEN. 260; DAY V UNITED STATES, 245 U.S. 159.

ACCORDINGLY, FOR THE FOREGOING REASONS, NO VALID BASIS APPEARS FOR INCREASING THE PRICES SPECIFIED IN EACH OF THE TWO CONTRACTS.