B-168773, FEB. 18, 1970

B-168773: Feb 18, 1970

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AWARD WAS MADE TO BIDDER WHO SUBSEQUENTLY ALLEGED THAT BID PRICE CONTAINED ONLY COST OF LINING ONE TANK INSTEAD OF TWO. RELIEF IS PROPERLY DENIED. CONTRACTING OFFICER WOULD NOT HAVE BEEN JUSTIFIED IN AWARDING CONTRACT TO OTHER THAN LOW BIDDER BUT WOULD HAVE FAILED IN HIS DUTY IF HE HAD NOT DONE SO. JOHNSON: REFERENCE IS MADE TO A LETTER DATED JANUARY 6. SECTION 1-3 OF THE SPECIFICATIONS PROVIDED THAT ALL SYNTHETIC RESIN WILL BECOME THE PROPERTY OF THE CONTRACTOR AND THAT ITS VALUE SHALL BE REFLECTED IN THE TOTAL BID PRICE. WAS PRESENT AT THE BID OPENING AND THAT SINCE THERE WAS A SUBSTANTIAL DIFFERENCE BETWEEN HIS COMPANY'S BID PRICE AND THE PRICE QUOTED BY THE ONLY OTHER BIDDER. THE BID OF THE COMPANY WAS ACCEPTED AND BY LETTER OF NOVEMBER 25.

B-168773, FEB. 18, 1970

CONTRACTS--MISTAKES--RELIEF DECISION DENYING RELIEF TO WYNHAUSEN SOFTENER CO. FOR MISTAKE IN CONTRACT ALLEGED AFTER VERIFICATION AND AWARD. WHERE, AFTER CONFIRMATION OF LOW BID PRICE AND PRESENTATION OF WORKSHEETS, AWARD WAS MADE TO BIDDER WHO SUBSEQUENTLY ALLEGED THAT BID PRICE CONTAINED ONLY COST OF LINING ONE TANK INSTEAD OF TWO, RELIEF IS PROPERLY DENIED. CONTRACTING OFFICER WOULD NOT HAVE BEEN JUSTIFIED IN AWARDING CONTRACT TO OTHER THAN LOW BIDDER BUT WOULD HAVE FAILED IN HIS DUTY IF HE HAD NOT DONE SO.

TO MR. JOHNSON:

REFERENCE IS MADE TO A LETTER DATED JANUARY 6, 1970, WITH ENCLOSURES, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, SUBMITTING FOR OUR DECISION A REQUEST BY THE WYNHAUSEN SOFTENER CO. FOR RELIEF UNDER CONTRACT NO. V602C-853 AWARDED BY THE VETERANS ADMINISTRATION (VA) CENTER, LOS ANGELES, CALIFORNIA.

THE VA CENTER BY INVITATION FOR BIDS NO. F70-65, AS AMENDED, REQUESTED BIDS--TO BE OPENED NOVEMBER 14, 1969--FOR FURNISHING ALL LABOR AND MATERIALS AND FOR PERFORMING ALL WORK NECESSARY TO REPAIR AND REBED TWO WATER SOFTENING UNITS IN BUILDING 292 AT THE CENTER IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS, PROJECT NO. 10-B5 116. THE SPECIFICATIONS REQUIRED THE SUCCESSFUL BIDDER TO REMOVE RESINS AND TO REPLACE ALL RESINS IN THE WATER SOFTENERS. SECTION 1-3 OF THE SPECIFICATIONS PROVIDED THAT ALL SYNTHETIC RESIN WILL BECOME THE PROPERTY OF THE CONTRACTOR AND THAT ITS VALUE SHALL BE REFLECTED IN THE TOTAL BID PRICE. IN RESPONSE THE WYNHAUSEN SOFTENER CO. SUBMITTED A BID DATED NOVEMBER 10, 1969, WHEREIN IT QUOTED A LUMP-SUM PRICE OF $9,790 FOR THE JOB. THE ABSTRACT OF BIDS SHOWS THAT THE ONLY OTHER BIDDER QUOTED A LUMP-SUM PRICE OF $15,470 FOR THE WORK.

THE RECORD INDICATES THAT MR. N. A. WYNHAUSEN, PRESIDENT OF WYNHAUSEN SOFTENER CO; WAS PRESENT AT THE BID OPENING AND THAT SINCE THERE WAS A SUBSTANTIAL DIFFERENCE BETWEEN HIS COMPANY'S BID PRICE AND THE PRICE QUOTED BY THE ONLY OTHER BIDDER, THE CONTRACTING OFFICER ASKED MR. WYNHAUSEN TO EXPLAIN THE DIFFERENCE BETWEEN THE TWO BIDS. MR. WYNHAUSEN REPLIED THAT HIS COMPANY HAD A USE FOR THE OLD RESIN, AND HE TENDERED HIS WORKSHEET WHICH SHOWED THAT THE COMPANY HAD ESTIMATED RECEIVING 434 CUBIC FEET OF USED RESIN FROM THE WATER SOFTENING UNITS VALUED AT $5 PER CUBIC FOOT FOR A TOTAL OF $2,170. ON NOVEMBER 18, 1969, THE BID OF THE COMPANY WAS ACCEPTED AND BY LETTER OF NOVEMBER 25, 1969, THE COMPANY WAS NOTIFIED TO PROCEED WITH THE WORK.

BY LETTER DATED DECEMBER 4, 1969, THE COMPANY ADVISED THAT AN ERROR HAD BEEN MADE IN COMPUTING ITS BID PRICE FOR THE JOB IN THAT IT HAD INCLUDED THE COST OF LINING ONLY ONE OF THE TWO TANKS TO BE LINED. THE COMPANY STATED THAT ITS LINING SUBCONTRACTOR, SOC-CO PLASTIC COATING COMPANY, HAD SUBMITTED A QUOTATION WHICH STATED "ITEM * * * 2 * * * TANKS * * * PRICE EA. $988.00"; HOWEVER, IT ERRONEOUSLY ASSUMED THAT THE PRICE OF $988 WAS FOR THE ENTIRE JOB OF LINING TWO TANKS RATHER THAN THE PRICE FOR LINING ONE TANK. WYNHAUSEN ALSO ADVISED THAT ITS SUBCONTRACTOR COULD NOT POSSIBLY PERFORM THE JOB OF LINING TWO TANKS FOR THE PRICE OF $988 SINCE THE NORMAL CHARGE FOR SUCH WORK IS $3 PER SQUARE FOOT OF LINED AREA AND THE AREA TO BE LINED IN EACH TANK IS APPROXIMATELY 330 SQUARE FEET. LETTER DATED DECEMBER 12, 1969, THE COMPANY REQUESTED THAT THE CONTRACT PRICE OF THE JOB BE INCREASED BY $1,087. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED A COPY OF THE QUOTATION RECEIVED FROM ITS LINING SUBCONTRACTOR AND ITS WORKSHEET, WHICH CONTAINS THE FOLLOWING ENTRY: "SUB CONTRACT LINING 988 10%."

AT THE TIME THE BIDS IN THIS CASE WERE OPENED, THERE WAS SOME DOUBT ON THE PART OF THE CONTRACTING OFFICER AS TO THE CORRECTNESS OF THE BID SUBMITTED BY WYNHAUSEN AND THE PRESIDENT OF THE COMPANY WHO WAS PRESENT AT THE BID OPENING WAS REQUESTED TO VERIFY HIS FIRM'S BID. THE RECORD INDICATES THAT THE COMPANY'S PRESIDENT EXPLAINED TO THE CONTRACTING OFFICER THAT THE REASON WHY HIS FIRM'S BID WAS SO LOW WAS THAT HIS COMPANY HAD A USE FOR THE OLD RESIN WHICH HAD AN ESTIMATED VALUE OF $2,170 AND THAT PROBABLY THE OTHER BIDDER DID NOT GIVE ANY VALUE TO THE USED RESIN SINCE HIS BUSINESS IS PRIMARILY NEW EQUIPMENT. ALSO AT THAT TIME THE PRESIDENT TENDERED HIS WORKSHEET TO THE CONTRACTING OFFICER AND SUCH WORKSHEET SHOWED THAT THE COMPANY'S BID PRICE OF $9,790 INCLUDED A PROFIT OF $2,170 REPRESENTED BY THE VALUE OF THE USED RESIN. AFTER THE COMPANY'S PRESIDENT CONFIRMED ITS BID PRICE, THE CONTRACTING OFFICER WAS NOT ONLY JUSTIFIED IN AWARDING THE CONTRACT ON THE COMPANY'S BID AS THE LOWEST RECEIVED, BUT WOULD HAVE FAILED IN HIS DUTY HAD HE DONE OTHERWISE. COMP. GEN. 786 (1958). SEE, ALSO CARNEGIE STEEL CO. V. CONNELLY, 97 A. 774 (1916); SHRIMPTON MFG. CO. V. BRIN, 125 S.W. 942 (1910); AND ALABAMA SHIRT & TROUSER CO. V. UNITED STATES, 121 CT. CL. 313 (1952), WHEREIN THE COURT OF CLAIMS CONCLUDED THAT THE GOVERNMENT AGENTS DID ALL THAT COULD BE EXPECTED TO PROTECT THE PLAINTIFF FROM ITS OWN IMPRUDENCE, AND THAT THE PLAINTIFF COULD NOT CHARGE THE GOVERNMENT "WITH HAVING SNAPPED UP AN ADVANTAGEOUS OFFER MADE BY MISTAKE."

THE ACCEPTANCE, AFTER CONFIRMATION, OF THE BID OF THE WYNHAUSEN SOFTENER CO. WAS IN GOOD FAITH--NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD--AND UNDER THE CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT 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 (1942); DAY V. UNITED STATES, 245 U.S. 159 (1917).

ACCORDINGLY, ON THE PRESENT RECORD, THERE IS NO LEGAL BASIS FOR GRANTING THE REQUESTED RELIEF. SEE 47 COMP. GEN. 616 (1968).