B-175246, MAY 1, 1972

B-175246: May 1, 1972

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BID PROTEST - ALLEGED MISTAKE IN BID CONCERNING AN ERROR IN BID ALLEGED TO HAVE BEEN MADE BY THE L. THERE IS NO LEGAL BASIS FOR GRANTING THE REQUESTED RELIEF SINCE THE CONTRACTING OFFICER CONSIDERED THE BID PROPER FOR AWARD ONLY AFTER COMPTON HAD UNEQUIVOCALLY CONFIRMED ITS SUBMITTED PRICE. SECRETARY: REFERENCE IS MADE TO LETTER DATED FEBRUARY 15. TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NO. 01- 2430 WAS BASED. 617.20 AND THAT THE GOVERNMENT'S ESTIMATE FOR THE PROJECT WAS IN THE AMOUNT OF $194. ITEM 580-7 (SEEDING AND MULCHING) SINCE THE PRICES QUOTED FOR THESE ITEMS WERE SUBSTANTIALLY BELOW THE PRICES QUOTED BY THE OTHER BIDDERS. 580-7 WERE CORRECT BUT THAT ON ITEM 10-3. THE COMPANY HAD TRANSPOSED ITS FIGURES IN ITS UNIT PRICE FOR THAT ITEM IN THAT THE UNIT PRICE SHOULD HAVE READ $582 INSTEAD OF $285 PER ACRE.

B-175246, MAY 1, 1972

BID PROTEST - ALLEGED MISTAKE IN BID CONCERNING AN ERROR IN BID ALLEGED TO HAVE BEEN MADE BY THE L. D. COMPTON CONSTRUCTION COMPANY ON A CONTRACT WITH THE FOREST SERVICE FOR ROADWAY CONSTRUCTION IN CLARK NATIONAL FOREST, REYNOLDS COUNTY, MO. THERE IS NO LEGAL BASIS FOR GRANTING THE REQUESTED RELIEF SINCE THE CONTRACTING OFFICER CONSIDERED THE BID PROPER FOR AWARD ONLY AFTER COMPTON HAD UNEQUIVOCALLY CONFIRMED ITS SUBMITTED PRICE.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 15, 1972, WITH ENCLOSURES, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, REQUESTING A DECISION CONCERNING AN ERROR ALLEGED BY THE L. D. COMPTON CONSTRUCTION COMPANY, FESTUS, MISSOURI, TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NO. 01- 2430 WAS BASED.

THE EASTERN REGION, FOREST SERVICE, DEPARTMENT OF AGRICULTURE, MILWAUKEE, WISCONSIN, BY INVITATION NO. R9-71-49 REQUESTED BIDS - TO BE OPENED JUNE 23, 1971 - FOR FURNISHING LABOR AND MATERIALS AND FOR PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF APPROXIMATELY 11 MILES OF ROADWAY, MACK RIDGE ROAD NO. 2356 AND RED ROOK ROAD NO. 2354, CLARK NATIONAL FOREST, REYNOLDS COUNTY, MISSOURI. IN RESPONSE THE L. D. COMPTON CONSTRUCTION COMPANY SUBMITTED A BID DATED JUNE 23, 1971, WHEREIN IT QUOTED A LUMP SUM OF $159,344.60 FOR THE JOB. THE ABSTRACT SHOWS THAT THE TWO OTHER BIDDERS ON THE PROJECT QUOTED LUMP SUM PRICES OF $211,281 AND $220,617.20 AND THAT THE GOVERNMENT'S ESTIMATE FOR THE PROJECT WAS IN THE AMOUNT OF $194,000.

IN EVALUATING THE BIDS RECEIVED, THE CONTRACTING OFFICER SUSPECTED THAT THE L. D. COMPTON CONSTRUCTION COMPANY HAD MADE ERRORS IN ITS BID ON ITEM 10-3 (CLEARING AND GRUBBING), ITEM 30-1 (UNCLASSIFIED EXCAVATION), ITEM 230-1 (AGGREGATE SURFACING), AND ITEM 580-7 (SEEDING AND MULCHING) SINCE THE PRICES QUOTED FOR THESE ITEMS WERE SUBSTANTIALLY BELOW THE PRICES QUOTED BY THE OTHER BIDDERS. THE CONTRACTING OFFICER TALKED WITH MR. COMPTON ON JUNE 25, 1971, ADVISED HIM OF THE DIFFERENCE BETWEEN THE PRICES QUOTED BY HIS COMPANY AND THE OTHER BIDDERS ON ITEMS 10-3, 30-1, 230-1, AND 580-7, AND REQUESTED THAT HE VERIFY HIS COMPANY'S BID IN WRITING. MR. COMPTON CALLED ON JUNE 28, 1971, TO SAY THAT HIS COMPANY'S BID PRICES ON ITEMS 30-1, 230-1, AND 580-7 WERE CORRECT BUT THAT ON ITEM 10-3, THE COMPANY HAD TRANSPOSED ITS FIGURES IN ITS UNIT PRICE FOR THAT ITEM IN THAT THE UNIT PRICE SHOULD HAVE READ $582 INSTEAD OF $285 PER ACRE.

DETAILED INSTRUCTIONS WERE GIVEN ON JUNE 29, 1971, TO MR. COMPTON REGARDING THE PROCEDURES TO BE FOLLOWED IF HE WAS OR WAS NOT ALLEGING AN ERROR IN HIS COMPANY'S BID AND HE WAS REQUESTED TO CONFIRM IN WRITING ANY ORAL ALLEGATIONS HE HAD MADE WITH RESPECT TO HIS COMPANY'S BID. BY LETTER DATED JULY 2, 1971, MR. COMPTON ADVISED THE CONTRACTING OFFICER THAT "I WILL STAND BY MY RECENT PROPOSAL." IT WAS DETERMINED THAT THE LETTER OF JULY 2, 1971, COULD NOT BE CONSIDERED A VERIFICATION OF COMPTON'S BID AND, THEREFORE, COMPTON WAS ADVISED BY LETTER DATED JULY 14, 1971, THAT IT SHOULD EITHER ALLEGE AN ERROR IN ITS BID OR VERIFY IN WRITING THAT ITS BID WAS CORRECT. BY LETTER DATED JULY 14, 1971, WHICH APPARENTLY CROSSED IN THE MAILS WITH THE CONTRACTING OFFICER'S LETTER OF THE SAME DATE, COMPTON ADVISED "I HAVE VERIFIED MY BID ON PROJECT R97149 IN THE AMOUNT OF $159,344.60." ON JULY 30, 1971, THE BID OF COMPTON WAS ACCEPTED.

BY LETTER DATED OCTOBER 11, 1971, COMPTON REQUESTED THAT THE CONTRACT PRICE OF ITEM 10-3 BE INCREASED FROM $285 TO $582. ON THE BASIS OF THE ESTIMATED NUMBER OF ACRES TO BE CLEARED AND GRUBBED UNDER ITEM 10-3, THE TOTAL AMOUNT OF THE REQUESTED INCREASE WOULD BE $17,047.80. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED A PHOTOSTATIC COPY OF ITS TAKE-OFF SHEET WHICH SHOWS A UNIT PRICE OF $582 FOR THE CLEARING AND GRUBBING UNDER ITEM 10-3. THE COMPANY STATED THAT THE ERROR OCCURRED WHEN THE UNIT PRICES WERE TRANSFERRED FROM THE TAKE-OFF SHEET TO THE BID FORM.

AS INDICATED ABOVE, THE CONTRACTOR WAS PROVIDED WITH AMPLE OPPORTUNITY BEFORE AWARD TO FURNISH EVIDENCE OF ERROR AND OF THE INTENDED BID. HOWEVER, THE CONTRACTOR INSISTED UPON VERIFYING THE BID. AFTER SUCH VERIFICATION, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. IT WAS NOT UNTIL AFTER COMPTON UNEQUIVOCALLY CONFIRMED ITS BID THAT THE CONTRACTING OFFICER CONSIDERED THE BID PROPER FOR AWARD.

IN THE CIRCUMSTANCES, SINCE THE CONTRACT WAS NOT INDUCED BY ANY UNCONSCIONABLE CONDUCT ON THE PART OF THE GOVERNMENT OR BY PROMISES FOR SUBSEQUENT RELIEF, THE CONTRACTOR CAN RECOVER NO MORE THAN THE CONTRACT PRICE. THE MASSMAN CONSTRUCTION CO. V UNITED STATES, 102 CT. CL. 699, CERTIORARI DENIED 325 U.S. 866 (1945) AND BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V O. D. WILSON CO., INC., 133 F.2D 399 (1943).

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR GRANTING THE REQUESTED RELIEF.