B-168788, MAY 18, 1970

B-168788: May 18, 1970

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SUBCONTRACTOR'S ERROR REQUEST FOR PRICE INCREASE BECAUSE CERAMIC TILE SUBCONTRACTOR HAD NOT REFERRED TO STRUCTURAL DRAWINGS INASMUCH AS IT FELT ALL REQUIRED INFORMATION WAS IN ARCHITECTURAL SECTION. IS DENIED SINCE SPECIFICATIONS. VALID CONTRACT WAS CONSUMMATED BY GOVERNMENT'S ACCEPTANCE IN GOOD FAITH OF MISTAKEN BID AS BIDDER MAKING MISTAKE IN ACCEPTED BID MUST BEAR CONSEQUENCES UNLESS MISTAKE WAS MUTUAL OR CONTRACTING OFFICE HAD ACTUAL OR CONSTRUCTIVE NOTICE OF MISTAKE PRIOR TO AWARD. WEBB CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7. IT IS STATED THAT IN PREPARING ITS BID FOR THE TILE WORK DURABLE REFERRED ONLY TO THE ARCHITECTURAL DRAWINGS. THESE DRAWINGS LED DURABLE TO THE CONCLUSION THAT CERTAIN CERAMIC TILE FLOORING WAS NOT REQUIRED IN 146 HOUSING UNITS AT ALAMEDA.

B-168788, MAY 18, 1970

CONTRACTS--MISTAKES--SUBCONTRACTOR'S ERROR REQUEST FOR PRICE INCREASE BECAUSE CERAMIC TILE SUBCONTRACTOR HAD NOT REFERRED TO STRUCTURAL DRAWINGS INASMUCH AS IT FELT ALL REQUIRED INFORMATION WAS IN ARCHITECTURAL SECTION, IS DENIED SINCE SPECIFICATIONS, TAKEN AS WHOLE, CONVEYED GOVERNMENT'S INTENTION OF REQUIRING CERAMIC TILE FLOORING IN ALL HOUSING UNITS, AND VALID CONTRACT WAS CONSUMMATED BY GOVERNMENT'S ACCEPTANCE IN GOOD FAITH OF MISTAKEN BID AS BIDDER MAKING MISTAKE IN ACCEPTED BID MUST BEAR CONSEQUENCES UNLESS MISTAKE WAS MUTUAL OR CONTRACTING OFFICE HAD ACTUAL OR CONSTRUCTIVE NOTICE OF MISTAKE PRIOR TO AWARD, BOTH HEREIN ABSENT. SEE COMP. GEN. DECS. AND CT. CASES CITED.

TO DEL E. WEBB CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1970, REQUESTING AN INCREASE OF $21,300 IN THE PRICE OF YOUR CONTRACT NO. N62474-68-C-0143, WITH THE DEPARTMENT OF THE NAVY FOR SITE IMPROVEMENTS AND CONSTRUCTION OF A TOTAL OF 704 LIVING QUARTERS AT THE NAVAL AIR STATION, ALAMEDA, CALIFORNIA, AND AT THE NAVAL STATION, TREASURE ISLAND, CALIFORNIA.

YOUR REQUEST STEMS FROM A MISTAKE ALLEGED AFTER AWARD IN THE BID OF YOUR SUBCONTRACTOR, DURABLE TILE COMPANY, INC. (DURABLE), FOR CERAMIC AND MOSAIC TILE WORK ON THE PROJECT. IT IS STATED THAT IN PREPARING ITS BID FOR THE TILE WORK DURABLE REFERRED ONLY TO THE ARCHITECTURAL DRAWINGS. APPARENTLY, THESE DRAWINGS LED DURABLE TO THE CONCLUSION THAT CERTAIN CERAMIC TILE FLOORING WAS NOT REQUIRED IN 146 HOUSING UNITS AT ALAMEDA. IN THE MISTAKEN BELIEF THAT ALL THE REQUIRED INFORMATION WAS IN THE ARCHITECTURAL DRAWINGS, DURABLE FAILED TO REFER TO THE STRUCTURAL DRAWINGS WHICH YOU STATE WOULD HAVE DISPELLED ANY QUESTION IN THIS REGARD. YOU ALSO STATE IN YOUR LETTER OF APRIL 25, 1969, TO THE RESIDENT OFFICER IN CHARGE OF CONSTRUCTION:

"AS ONE MIGHT SEE, THE CERAMIC TILE SUBCONTRACTOR HAS NOT REFERRED TO THE STRUCTURAL BECAUSE THEY FELT ALL THE INFORMATION THEY REQUIRED WAS IN THE ARCHITECTURAL SECTION."

THE ARCHITECTURAL DRAWINGS FOR BOTH CONSTRUCTION SITES INDICATED THAT UNIT TYPES BI AND CI WERE TO HAVE WOOD-FLOORS AND UNIT TYPES BII AND CII WERE TO HAVE CONCRETE FLOORS. THE FINISH SCHEDULE DRAWING INDICATED THAT WOOD-FLOORED LAUNDRY AND POWDER ROOMS WERE TO RECEIVE CERAMIC TILE, WHILE THE SIMILAR CONCRETE-FLOORED ROOMS WERE TO RECEIVE VINYL TILE. HOWEVER, THE TWO STRUCTURAL DRAWINGS, MADE A PART OF THE GENERAL REQUIREMENTS OF THE CONTRACT, FOR THE HOUSING UNITS AT ALAMEDA REQUIRED THAT ALL HOUSING UNITS WERE TO BE WOOD-FLOORED, THUS REQUIRING CERAMIC TILE FLOORING.

IN ADDITION, PARAGRAPH 2 OF THE GENERAL PROVISIONS PROVIDES:

"* * * ANYTHING MENTIONED IN THE SPECIFICATIONS AND NOT SHOWN ON THE DRAWINGS, OR SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS, SHALL BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH. IN CASE OF DIFFERENCE BETWEEN DRAWINGS AND SPECIFICATIONS, THE SPECIFICATIONS SHALL GOVERN. IN CASE OF DISCREPANCY EITHER IN THE FIGURES, IN THE DRAWINGS OR IN THE SPECIFICATIONS, THE MATTER SHALL BE PROMPTLY SUBMITTED TO THE CONTRACTING OFFICER, WHO SHALL PROMPTLY MAKE A DETERMINATION IN WRITING. * * *"

IN UNICON MANAGEMENT CORPORATION V. UNITED STATES, 179 CT. CL. 534, 375 F2D 804, THE COURT OF CLAIMS CONSIDERED A CASE, NOT DISSIMILAR TO THE ONE UNDER CONSIDERATION, WHERE THE MOST PERTINENT SPECIFICATION OF A CONTRACT, IF READ ALONE, COULD BE SAID TO CONTEMPLATE A FLOOR WHOLLY OF CONCRETE, RATHER THAN ONE PARTIALLY OF STEEL-PLATE WHICH THE CONTRACTOR WAS REQUIRED TO CONSTRUCT, WHILE THE MOST PERTINENT DRAWINGS, IF READ ALONE, DIRECTED THE STEEL-PLATE COVERING. THE CONTRACT CONTAINED THE LANGUAGE OF ARTICLE 2 OF THE GENERAL PROVISIONS, QUOTED SUPRA. IN GRANTING THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, AND THEREBY UPHOLDING THE CONTRACTING OFFICER'S AND THE ADMINISTRATIVE APPEAL BOARD'S DENIAL OF A CLAIM FOR EQUITABLE ADJUSTMENT, THE COURT STATED AT PAGES 537 AND 538 OF THE COURT OF CLAIMS REPORTS:

"* * * PLAINTIFF SEEMS TO INSIST THAT, IF THE SPECIFICATIONS CAN BE READ AS CONFLICTING WITH THE DRAWINGS, THAT READING MUST BE ADOPTED EVEN THOUGH A MORE HARMONIOUS INTERPRETATION IS ALSO REASONABLY AVAILABLE. THE RULE, HOWEVER, WHICH THE COURTS HAVE ALWAYS PREFERRED IS, WHERE POSSIBLE, TO INTERPRET THE PROVISIONS OF A CONTRACT AS COORDINATE NOT CONTRADICTORY. SEE THOMPSON BAMO WOOLDRIGE, INC. V. UNITED STATES, 175 CT. CL. 527, 536, 361 F. 2D 222, 228 (1966). CONTRACTORS, TOO, HAVE LONG BEEN ON NOTICE THAT IN READING CONTRACT DOCUMENTS THEY SHOULD SEEK TO FIND CONCORD, RATHER THAN DISCORD, IF THEY PROPERLY CAN.

"THIS BRINGS US TO ANOTHER REASON WHY PLAINTIFF'S POSITION IS WEAK. THERE IS NO EVIDENCE AS TO THE VIEW ACTUALLY TAKEN BY THE COMPANY'S ESTIMATORS BEFORE IT SUBMITTED ITS BID (PLAINTIFF DID NOT CALL THEM TO THE STAND IN THE ADMINISTRATIVE PROCEEDING). BUT ASSUMING ARGUENDO THAT THEY READ TP 17-23 THE WAY PLAINTIFF NOW DOES, IF THEY EXAMINED THE PLANS AND SPECIFICATIONS CAREFULLY THEY COULD NOT HAVE HELPED NOTICE THE DRAWINGS WHICH SPECIFICALLY EMBODIED THE CONTRARY REQUIREMENT. IF THEY WERE NOT AWARE OF THIS FACT THEY SHOULD HAVE BEEN. THE CONTRACT PROVIDED THAT 'IN ANY CASE OF DISCREPANCY EITHER IN THE FIGURES, IN THE DRAWINGS, OR IN THE SPECIFICATIONS, THE MATTER SHALL BE PROMPTLY SUBMITTED TO THE CONTRACTING OFFICER WHO SHALL PROMPTLY MAKE A DETERMINATION IN WRITING. ANY ADJUSTMENT BY THE CONTRACTOR WITHOUT THIS DETERMINATION SHALL BE AT HIS OWN RISK AND EXPENSE' (FOOTNOTE 1, SUPRA). A WARNING OF THIS KIND CALLS UPON THE BIDDER TO BRING TO THE GOVERNMENT'S ATTENTION ANY SERIOUS OR PATENT DISCREPANCY OF SIGNIFICANCE, OF WHICH HE IS OR SHOULD BE COGNIZANT. * * * THE DISCREPANCY HERE--IF TP 17-23 WAS THEN THOUGHT TO MEAN WHAT PLAINTIFF NOW CONTENDS--SURELY MET THAT STANDARD OF IMPORTANCE. YET THERE IS NO SUGGESTION THAT PLAINTIFF BROUGHT IT TO THE CONTRACTING OFFICER OR SOUGHT THE REQUIRED GUIDANCE BEFORE BIDDING. IF, ON THE OTHER HAND, PLAINTIFF DID NOT STUDY THE PLANS AND SPECIFICATIONS BEFORE BIDDING, IT CANNOT COMPLAIN THAT THE BOARD AND THIS COURT STRIVE, IN ACCORDANCE WITH THE ESTABLISHED CANON, TO READ THE RELEVANT CONTRACT PROVISIONS TOGETHER RATHER THAN AT ODDS."

WHILE THE ARCHITECTURAL DRAWINGS IN THE INSTANT CASE, IF READ BY THEMSELVES, COULD BE MISLEADING, ALL OF THE DRAWINGS AND THE CONTRACT PROVISIONS MUST BE PLACED SIDE BY SIDE AND VIEWED WITH AN EYE WHICH SEARCHES FOR CONGRUITY. DURABLE ADMITTEDLY ONLY VIEWED THE ARCHITECTURAL DRAWINGS. WE THINK THE SPECIFICATIONS, TAKEN AS A WHOLE, WERE SUFFICIENTLY CLEAR TO CONVEY THE GOVERNMENT'S INTENTION OF REQUIRING IT TO FURNISH CERAMIC TILE FLOORING IN ALL OF THE HOUSING UNITS AT ALAMEDA. ONLY BY IGNORING THE STRUCTURAL DRAWINGS AND PERTINENT PROVISIONS OF THE CONTRACT COULD A PROSPECTIVE CONTRACTOR OR SUBCONTRACTOR CONCLUDE OTHERWISE.

WHILE IT APPEARS FROM THE RECORD BEFORE US THAT THE ERROR MAY HAVE BEEN MADE AS ALLEGED, THE ULTIMATE QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE PRICE QUOTATION OF YOUR SUBCONTRACTOR, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE GOVERNMENT'S ACCEPTANCE OF YOUR BID.

WE HAVE CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR PREPARATION OF A BID RESTS WITH THE BIDDER. THEREFORE, A BIDDER WHO MAKES A MISTAKE IN A BID WHICH HAS BEEN ACCEPTED IN GOOD FAITH BY THE GOVERNMENT MUST BEAR THE CONSEQUENCES UNLESS THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER HAD EITHER ACTUAL OR CONSTRUCTIVE NOTICE OF THE MISTAKE PRIOR TO AWARD. COMP. GEN. 373 (1937) AND 532 (1937); 20 ID. 652 (1941); 23 ID. 596 (1944); 30 COMP. GEN. 509 (1951).

THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE AN ERROR THEREIN, AND IN VIEW OF THE SLIGHT DIFFERENCE IN THE BID PRICES RECEIVED THE CONTRACTING OFFICER WAS NOT PUT ON CONSTRUCTIVE NOTICE OF ANY ERROR THEREIN. ALSO, SINCE YOUR FIRM, AS PRIME CONTRACTOR, APPARENTLY FAILED TO QUESTION THE ACCURACY OF THE QUOTATION OF DURABLE, THERE WOULD APPEAR TO BE EVEN LESS BASIS FOR EXPECTING THE CONTRACTING OFFICER TO QUESTION YOUR BID. CF. 17 COMP. GEN. 926 (1938); 18 COMP. GEN. 28 1938); ALLIED CONTRACTORS, INC. V. UNITED STATES, 159 CT. CL. 548.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT ANY ERRORS MADE IN YOUR BID, BASED ON THE QUOTATION OF DURABLE, WERE UNILATERAL, NOT MUTUAL, AND THAT ACCEPTANCE OF YOUR OFFER BY THE GOVERNMENT WITHOUT NOTICE THEREOF CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS OF THE PARTIES THERETO. 36 COMP. GEN. 27 (1956) AND 40 ID. 326 (1960). IN THE CIRCUMSTANCES WE MUST CONCLUDE THERE IS NO BASIS FOR PAYING ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE, AND YOUR REQUEST FOR AN INCREASE IN THE CONTRACT PRICE IS THEREFORE DENIED.