B-34189, FEBRUARY 16, 1944, 23 COMP. GEN. 596

B-34189: Feb 16, 1944

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THE SUM INSERTED OPPOSITE ONE ITEM WAS A LUMP SUM AMOUNT AS TO WHICH THE BIDDER ALLEGED ERROR. IT IS AN ESTABLISHED RULE THAT WHEN A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. IS A UNILATERAL. OR THE STATUTES REQUIRE THAT A FORMAL WRITTEN CONTRACT IS TO BE THEREAFTER EXECUTED BY THE PARTIES. IRRESPECTIVE OF WHETHER SUCH FORMAL CONTRACT IS THEREAFTER EXECUTED. IT IS TO BE PRESUMED. 1944: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11. REPRESENTING ADDITIONAL COMPENSATION STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN ITEM 18 OF YOUR BID ON WHICH CONTRACT NO.

B-34189, FEBRUARY 16, 1944, 23 COMP. GEN. 596

BIDS - MISTAKES - PAYMENT OF ADDITIONAL AMOUNT AFTER EXECUTION OF CONTRACT AND PERFORMANCE OF WORK WHERE, IN RESPONSE TO INVITATION FOR BIDS FOR FURNISHING ALL LABOR AND MATERIAL AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF ORDNANCE FACILITY STRUCTURES, ROADS, ETC., A BIDDER SUBMITTED A BID OFFERING TO PERFORM THE WORK IN CONSIDERATION OF THE PRICES INSERTED OPPOSITE EACH OF THE SEVERAL ITEMS, AND THE SUM INSERTED OPPOSITE ONE ITEM WAS A LUMP SUM AMOUNT AS TO WHICH THE BIDDER ALLEGED ERROR, THE BIDDER, AFTER EXECUTION OF THE CONTRACT AND PERFORMANCE OF THE WORK, MAY NOT BE PAID ANY AMOUNT IN EXCESS OF THE AGREED PRICE. IT IS AN ESTABLISHED RULE THAT WHEN A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. AN ERROR MADE BY A BIDDER IN DETERMINING THE QUANTITIES OF EARTH EXCAVATION AND PAVING REQUIRED IN CONNECTION WITH CONSTRUCTING ROADS, STREETS, DITCHES, ETC., IN ACCORDANCE WITH GOVERNMENT SPECIFICATIONS, IS A UNILATERAL--- NOT MUTUAL--- ERROR, AND, AS SUCH, AFFORDS NO BASIS FOR PAYMENT OF ANY AMOUNT IN EXCESS OF THE BID PRICE. A BIDDER ALLEGING A MISTAKE IN ITS BID MUST SHOW BY CLEAR AND COMPETENT EVIDENCE EXACTLY IN WHAT THE MISTAKE CONSISTS AND THE CORRECTION THAT SHOULD BE MADE. IN CONTRACTING WITH THE GOVERNMENT A VALID AND ENFORCEABLE CONTRACT RESULTS UPON ACCEPTANCE BY AN AUTHORIZED AGENT OF THE GOVERNMENT OF A BIDDER'S OFFER OR PROPOSAL, EVEN THOUGH THE PARTIES CONTEMPLATE, OR THE STATUTES REQUIRE THAT A FORMAL WRITTEN CONTRACT IS TO BE THEREAFTER EXECUTED BY THE PARTIES, AND IRRESPECTIVE OF WHETHER SUCH FORMAL CONTRACT IS THEREAFTER EXECUTED. WHERE, AFTER ACCEPTANCE OF A BID BY THE GOVERNMENT, THE BIDDER, UNDER PROTEST, ENTERED INTO A FORMAL CONTRACT BASED UPON THE PRICES SPECIFIED IN THE BID, IT IS TO BE PRESUMED, IN LAW--- THE PURPOSE OF A FORMAL CONTRACT BEING TO MAKE DEFINITE AND CERTAIN THE RIGHTS AND OBLIGATIONS OF THE PARTIES--- THAT THE FORMAL CONTRACT EXPRESSED THE FINAL UNDERSTANDING OF THE PARTIES THERETO.

ACTING COMPTROLLER GENERAL YATES TO THE PAUL SMITH CONSTRUCTION COMPANY, FEBRUARY 16, 1944:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1943, REQUESTING REVIEW OF SETTLEMENT OF JULY 16, 1943, WHICH DISALLOWED YOUR CLAIM FOR $18,389.50, REPRESENTING ADDITIONAL COMPENSATION STATED TO BE DUE BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN ITEM 18 OF YOUR BID ON WHICH CONTRACT NO. W569-ENG-3314, DATED JANUARY 14, 1942, IS BASED.

THE UNITED STATES ENGINEER OFFICE, MOBILE, ALABAMA, INVITED BIDS--- TO BE OPENED JANUARY 12, 1942--- FOR FURNISHING ALL LABOR AND MATERIAL AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF ORDNANCE FACILITY STRUCTURES, ROAD AND UTILITIES NEAR EGLIN FIELD, VALPARAISO, FLORIDA. RESPONSE TO THAT INVITATION, YOU SUBMITTED A BID DATED JANUARY 10, 1942, WHEREIN YOU OFFERED TO PERFORM THE WORK IN CONSIDERATION OF THE PRICES INSERTED OPPOSITE ITEMS 1 TO 19, INCLUSIVE, OF YOUR BID, THE AGGREGATE OF WHICH WAS SHOWN AS $224,315.97. YOU AGREED IN YOUR BID TO EXECUTE STANDARD FORM OF GOVERNMENT CONTRACT AND TO GIVE PERFORMANCE AND PAYMENT BONDS WITHIN TEN DAYS AFTER DATE OF RECEIPT OF WRITTEN NOTICE OF ACCEPTANCE OF YOUR BID. UNDER DATE OF JANUARY 14, 1942, YOU DISPATCHED THE FOLLOWING TELEGRAM TO THE DISTRICT ENGINEER, MOBILE, ALABAMA:

WILL BE IN MOBILE, EITHER TOMORROW OR FRIDAY DEPENDING ON PLANE TRANSPORTATION TO DISCUSS OUR BID SUBMITTED FOR CONSTRUCTION OF ORDNANCE FACILITY STRUCTURES, ROADS AND UTILITIES AS PER OUR TELEPHONE CALL TO YOUR CAPTAIN KULA THIS A.M. BY TELEGRAM DATED JANUARY 14, 1942, THE CONTRACTING OFFICER ADVISED YOU THAT YOUR BID WAS ACCEPTED IN THE AMOUNT OF $224,415.97 (AN ERROR OF $100 HAVING BEEN MADE IN YOUR AGGREGATE BID PRICE). SAID TELEGRAM WAS CONFIRMED BY A LETTER OF THE SAME DATE FROM THE CONTRACTING OFFICER AND COPIES OF THE FORMAL CONTRACT WERE SUBMITTED TO YOU FOR SIGNATURE. IT APPEARS THAT ON JANUARY 15, 1942, YOUR VICE PRESIDENT VISITED THE OFFICE OF THE CONTRACTING OFFICER AND STATED THAT AN ERROR HAD BEEN MADE IN YOUR BID ON ITEM 18 WHICH PROVIDED AS FOLLOWS:

CHART

ESTIMATED UNIT DESIGNATION UNIT AMOUNT

QUANTITY PRICE

------ LUMP SUM. CONSTRUCTING ROADS, ----- $22,677.00

STREETS, DITCHES AND

CULVERTS. THE ERROR ALLEGED APPEARS TO HAVE BEEN THAT THE PRICE OF $0.75 PER SQUARE YARD FOR PAVING AND THE PRICE OF $0.45 PER CUBIC YARD FOR EARTH EXCAVATION WERE APPLIED TO ERRONEOUSLY ESTIMATED QUANTITIES. IT APPEARS FROM THE FINDING OF FACTS BY THE CONTRACTING OFFICER THAT YOU WERE INFORMED OF YOUR PRIVILEGE OF FILING A CLAIM WITH THE GOVERNMENT FOR SUCH ADJUSTMENT AS A STUDY OF THE PERTINENT FACTS IN CONNECTION WITH THE CLAIM MIGHT WARRANT. BY LETTER DATED JANUARY 23, 1942, YOU SUBMITTED TO THE CONTRACTING OFFICER PHOTOSTATIC COPIES OF YOUR ESTIMATE SHEETS SHOWING THE QUANTITIES AND PRICES FOR THE WORK COVERED BY ITEM 18 OF YOUR BID.

THE ALLEGED ERROR IN YOUR BID WAS THE SUBJECT OF A CONFERENCE IN THE OFFICE OF THE CONTRACTING OFFICER ON JANUARY 24, 1942, WHEREIN IT APPEARS THAT THE CONTRACTING OFFICER INFORMED YOU THAT IN HIS OPINION THE ACCEPTANCE OF YOUR BID CONSUMMATED AN OBLIGATORY AGREEMENT. UNDER DATE OF JANUARY 27, 1942, YOU ADVISED THE DISTRICT ENGINEER, MOBILE, ALABAMA, THAT YOU WERE SIGNING THE FORMAL CONTRACT UNDER PROTEST AND FORWARDING SAME BY EXPRESS, AND YOU REQUESTED THAT THE PRICE FOR ROADS AND EARTHWORK UNDER ITEM 18 BE ADJUSTED ON THE BASIS OF THE ACTUAL QUANTITIES INVOLVED SINCE AN ERROR HAD OCCURRED IN YOUR QUANTITY SURVEY. YOU PERFORMED THE CONTRACT WORK AND PAYMENT WAS MADE THEREFOR IN ACCORDANCE WITH THE PROVISIONS THEREOF INCLUDING CHANGES MADE DURING THE PROGRESS OF THE WORK, THE TOTAL PAYMENT AMOUNTING TO $254,444.19. YOUR CLAIM FOR ADDITIONAL COMPENSATION WAS DISALLOWED IN THE SETTLEMENT OF JULY 16, 1943.

IN THE REQUEST FOR REVIEW, IT IS STATED THAT YOUR MR. BRAWLEY ADVISED THE CONTRACTING OFFICER PRIOR TO AWARD THAT AN ERROR HAD BEEN MADE IN YOUR BID; THAT YOUR VICE PRESIDENT TELEPHONED THE CONTRACTING OFFICER REQUESTING A CONFERENCE ON THE NEXT DAY WITH RESPECT TO THE AMOUNT OF THE BID; THAT PRIOR TO AWARD THE CONTRACTING OFFICER COMPARED YOUR BID WITH THE OTHER BIDS AND WITH THE GOVERNMENT'S ESTIMATE, GIVING PARTICULAR ATTENTION TO ITEM 18; THAT AT THE TIME OF SUCH COMPARISON A SIMILAR ERROR IN THE GOVERNMENT'S ESTIMATE RESULTED IN THE CONTRACTING OFFICER ERRONEOUSLY CONCLUDING THAT AN ERROR WAS NOT APPARENT.

THE ESTABLISHED RULE IS THAT WHEN A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 526; 8 ID. 362; 15 ID. 1049; 18 ID. 942; 20 ID. 652; ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 C.1CLS. 127; AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 C.1CLS. 209; UNITED STATES V. CONTI, 119 F.2D 652; STEINMEYER ET AL. V. SCHROEPPEL, 226 ILL. 9, 80 N.E. 564, 10 L.R.A. ( N.S.) 114, 117 AM. ST. REP. 224; LEONARD V. HOWARD ET AL., 67 ORE. 203, 135 PAC. 549; BROWN V. LEVY, 29 TEX. CIV. APP. 389, 69 S.W. 255; DADDARIO V. TOWN OF MILFORD ( MASS.), 5 N.E. 2D 23, 107 A.L.R. 1447. ALSO, SEE STATEMENTS OF TEXT WRITERS QUOTED WITH APPROVAL BY THE COURT IN STAR- CHRONICLE PUBLISHING CO. V. NEW YORK EVENING POST, INC., ET AL. (CCA-2), 256 F. 435, 442.

THE WORK UNDER ITEM 18 IS COVERED BY PARAGRAPHS 27-01 TO 27-18 AND 28-01 TO 28-03 OF THE SPECIFICATIONS WHICH REQUIRED THE CONSTRUCTION OF THE ROADS, STREETS, CULVERTS AND DITCHES TO BE AS SET FORTH THEREIN AND ON THE PLANS AND DRAWINGS REFERRED TO. THE RESPONSIBILITY FOR DETERMINING THE QUANTITIES INVOLVED WAS UPON THE BIDDER. IF YOU MADE AN ERROR IN DETERMINING THE QUANTITIES UNDER ITEM 18, AS ALLEGED, IT APPEARS THAT SUCH ERROR WAS DUE SOLELY TO YOUR NEGLIGENCE OR OVERSIGHT IN ASCERTAINING THE EXTENT OF THE WORK COVERED BY SAID ITEM. APPARENTLY THE SIX OTHER BIDDERS WERE ABLE TO DETERMINE ACCURATELY THE QUANTITIES REQUIRED UNDER SAID ITEM. HENCE, IT APPEARS THAT THE SPECIFICATIONS, PLANS AND DRAWINGS WERE SUFFICIENTLY CLEAR TO ENABLE A BIDDER TO SUBMIT AN ACCURATE BID ON ITEM 18. SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL--- NOT MUTUAL, AS URGED BY YOU. IN ELLICOTT MACHINE COMPANY V. UNITED STATES, SUPRA, IT WAS HELD, QUOTING FROM THE SYLLABUS:

IT IS WELL SETTLED THAT WHERE A CONTRACT IS VALID, ON ITS FACE AND NO FRAUD OR CONCEALMENT HAS BEEN SHOWN, A PARTY CAN NOT BE RELIEVED FROM ITS OBLIGATIONS FOR MISTAKE UNLESS THE MISTAKE WAS MUTUAL. A PARTY CAN NOT SET UP HIS OWN NEGLIGENCE AND CALL IT A MUTUAL MISTAKE. ( ITALICS SUPPLIED).

AFTER THE ABOVE REFERRED TO TELEPHONE CONVERSATION BETWEEN YOUR VICE PRESIDENT AND THE CONTRACTING OFFICER CONCERNING YOUR BID, THE CONTRACTING OFFICER EXAMINED YOUR BID. THE CONTRACTING OFFICER, IN HIS FINDING OF FACT, STATED:

* * * IT WAS THEN BELIEVED THAT SMITH HAD NOT MADE AN ERROR IN BID, BUT, AT THE MOST, HAD MADE AN IMPROVIDENT BID WHICH WOULD CONSTITUTE NO JUSTIFICATION FOR THE REJECTION OF ITS BID. ACCORDINGLY, BY TELEGRAM OF JANUARY 14, 1942, SMITH'S BID WAS ACCEPTED. * * *

THE SIX OTHER AGGREGATE BIDS ON ITEMS 1 TO 19, INCLUSIVE, WERE AS FOLLOWS:

CHART

BIDDER NO: AGGREGATE BID

1-------------------------------------------$389,567.92

2------------------------------------------- 337,026.50

3------------------------------------------- 272,215.80

4-------------------------------------------269,979.90

5-------------------------------------------267,798.48

6-------------------------------------------267,233.00

CLAIMANT-----------------------------------224,415.97 SINCE YOUR BID ON ITEM 18 WAS SUBMITTED ON A LUMP-SUM BASIS AND NO QUANTITIES WERE SHOWN, THERE WAS NOTHING ON THE FACE OF YOUR BID AS TO SAID ITEM TO INDICATE ERROR THEREIN. THE DIFFERENCE BETWEEN THE NEXT HIGHER AGGREGATE BID ON ITEMS 1 TO 19 INCLUSIVE, AND THE HIGHEST AGGREGATE BID ON SAID ITEMS WAS $122,334.92. IN VIEW OF THE WIDE RANGE IN THE BIDS RECEIVED ON ITEMS 1 TO 19, INCLUSIVE, IT DOES NOT APPEAR THAT A COMPARISON OF THE BIDS WOULD INDICATE THAT AN ERROR HAD BEEN MADE IN YOUR BID. ALTHOUGH AFTER AWARD YOUR SUBMITTED PHOTOSTATIC COPIES OF YOUR ESTIMATE SHEETS SHOWING THE QUANTITIES USED IN COMPUTING YOUR BID PRICE FOR ITEM 18, IT DOES NOT APPEAR THAT PRIOR TO AWARD ANY OFFICER OF THE GOVERNMENT HAD KNOWLEDGE OF THE FACTORS USED IN COMPUTING YOUR BID. MOREOVER, NOTHING APPEARS TO HAVE BEEN FURNISHED EXPLAINING WHICH QUANTITIES OF YOUR ESTIMATE WERE IN ERROR AND WHAT THE CORRECT QUANTITIES SHOULD HAVE BEEN. SEE, IN THAT CONNECTION HEARNE V. MARINE INSURANCE COMPANY, 20 WALL. 488, 490, WHEREIN THE SUPREME COURT OF THE UNITED STATES, IN REFERRING TO THE MATTER OF REFORMING CONTRACTS FOR MISTAKES, STATED:

THE PARTY ALLEGING THE MISTAKE MUST SHOW EXACTLY IN WHAT IT CONSISTS, AND THE CORRECTION THAT SHOULD BE MADE. THE EVIDENCE MUST BE SUCH AS TO LEAVE NO REASONABLE DOUBT UPON THE MIND OF THE COURT AS TO EITHER OF THESE POINTS. * * *

UNDER THE CIRCUMSTANCES IN THIS CASE, IT APPEARS THAT THE CONCLUSION WOULD NOT BE JUSTIFIED--- CONTRARY TO THE STATEMENT OF THE CONTRACTING OFFICER HEREINBEFORE QUOTED--- THAT YOUR BID WAS ACCEPTED OTHER THAN IN GOOD FAITH. IT IS WELL SETTLED THAT IN CONTRACTING WITH THE GOVERNMENT A VALID AND ENFORCEABLE CONTRACT RESULTS UPON ACCEPTANCE BY AN AUTHORIZED AGENT OF THE GOVERNMENT OF A BIDDER'S OFFER OR PROPOSAL, EVEN THOUGH THE PARTIES CONTEMPLATE, OR THE STATUTES REQUIRE, THAT A FORMAL WRITTEN CONTRACT IS TO BE THEREAFTER EXECUTED BY THE PARTIES, AND IRRESPECTIVE OF WHETHER SUCH FORMAL CONTRACT IS THEREAFTER EXECUTED. SEE GARFIELDE V. UNITED STATES, 93 U.S. 242; HARVEY V. UNITED STATES, 105 U.S. 671, 688; UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP COMPANY, 239 U.S. 88; ACKERLIND V. UNITED STATES, 240 U.S. 531; UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75; ADAMS V. UNITED STATES, 1 C.1CLS. 192; MCCOLLUM V. UNITED STATES, 17 C.1CLS. 92; PROFFIT V. UNITED STATES, 42 C.1CLS. 248; WATERS V. UNITED STATES, 75 C.1CLS. 126.

AFTER YOUR BID WAS ACCEPTED YOU ENTERED INTO A FORMAL CONTRACT BASED UPON THE PRICES SPECIFIED IN YOUR BID. THE PURPOSE OF THE FORMAL CONTRACT WAS TO MAKE DEFINITE AND CERTAIN THE RIGHTS AND OBLIGATIONS OF THE PARTIES AND IS PRESUMED, IN LAW, TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES THERETO. SEE, IN THAT CONNECTION, THE CASE OF BRAWLEY V. UNITED STATES, 96 U.S. 168, 173, WHEREIN THE SUPREME COURT OF THE UNITED STATES HELD---

* * * THE WRITTEN CONTRACT MERGED ALL PREVIOUS NEGOTIATIONS, AND IS PRESUMED, IN LAW, TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES. THE CONTRACT DID NOT EXPRESS THE TRUE AGREEMENT, IT WAS THE CLAIMANT'S FOLLY TO HAVE SIGNED IT.* * * PREVIOUS AND CONTEMPORARY TRANSACTIONS AND FACTS MAY BE VERY PROPERLY TAKEN INTO CONSIDERATION TO ASCERTAIN THE SUBJECT-MATTER OF A CONTRACT, AND THE SENSE IN WHICH THE PARTIES MAY HAVE USED PARTICULAR TERMS, BUT NOT TO ALTER OR MODIFY THE PLAIN LANGUAGE WHICH THEY HAVE USED. ALSO, THE SAME COURT IN THE CASE OF PARISH ET AL. V. UNITED STATES, 8 WALL. 489, 490, HELD---

IF THE CLAIMANTS HAD ANY OBJECTIONS TO THE PROVISIONS OF THE CONTRACT THEY SIGNED, THEY SHOULD HAVE REFUSED TO MAKE IT. HAVING MADE IT, AND EXECUTED IT, THEIR MOUTHS ARE CLOSED AGAINST ANY DENIAL THAT IT SUPERSEDED ALL PREVIOUS ARRANGEMENTS. ALSO, SEE GILBERT AND SECOR V. UNITED STATES, 8 WALL. 358; UNITED STATES EX REL. INTERNATIONAL CONTRACTING COMPANY V. LAMONT, 155 U.S. 303, 309; SIMPSON V. UNITED STATES, 172 U.S. 372; WILLARD, SUTHERLAND AND COMPANY V. UNITED STATES, 262 U.S. 489; THEODORE TIEDEMANN CORPORATION V. UNITED STATES, 78 C.1CLS. 16; HAMPTON, EXECUTOR V. UNITED STATES, 82 C.1CLS. 162, 172.

IN THE CASE OF BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., NC., 133 F.2D 399, THE APPELLEE OMITTED FROM THE BID PRICE FOR CERTAIN WORK THE AMOUNT OF $1,600 COVERING THE PRICE OF THE FLOOR AND UPON DISCOVERY OF THE OMISSION, AFTER THE OPENING OF THE BIDS BUT PRIOR TO AWARD, IT REQUESTED PERMISSION TO WITHDRAW ITS BID WHICH REQUEST WAS REFUSED. THE APPELLEE THEN ENTERED INTO A WRITTEN CONTRACT BASED UPON ITS BID AND IT NOTIFIED APPELLANT THAT IT WAS DOING SO UNDER PROTEST,"RESERVING" ALL RIGHT ARISING FROM ITS ESTIMATOR'S MISTAKE. THE APPELLEE PERFORMED THE WORK AND WAS PAID THEREFOR AT THE CONTRACT PRICE AND THEREAFTER BROUGHT SUIT TO RECOVER THE AMOUNT OF $1,600 BY REASON OF THE ERROR IN ITS BID. IN DENYING RECOVERY OF SAID AMOUNT, THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA STATED (PAGE 400/---

IT MAY BE THAT APPELLEE HAD A RIGHT TO RESCIND ITS BID BECAUSE OF THE MISTAKE. WE NEED NOT DECIDE THAT QUESTION. WHEN APPELLANT DENIED THE RIGHT, APPELLEE VAGUELY ASSERTED IT BUT DID NOT EXERCISE IT. INSTEAD, IT ENTERED INTO A CONTRACT. IT DID SO UNDER NO MISTAKE, FOR IT THEN KNEW ALL THE FACTS INCLUDING ITS FORMER MISTAKE. IN FURNISHING THE FLOOR FOR WHICH IT NOW SUES, IT PERFORMED ITS CONTRACT AND NO MORE. IT IS ELEMENTARY THAT IN THE ABSENCE OF FRAUD, MISTAKE, DURESS, AND THE LIKE, ONE WHO MERELY PERFORMS HIS CONTRACT CAN RECOVER MERELY THE CONTRACT PRICE. * * * * * *

* * * IF APPELLEE HAD THE RIGHT TO RESCIND, IT COULD EITHER CONTRACT AND PERFORM OR REFUSE TO DO SO. IT COULD NOT ON ANY THEORY CONTRACT, PERFORM, COLLECT THE FULL CONTRACT PRICE, AND THEN REPUDIATE THE CONTRACT AND RECOVER AS IF THERE HAD BEEN NONE. IT COULD NOT ACQUIRE SUCH A RIGHT BY PURPORTING TO "RESERVE" IT. THIS IS WHAT IT HAS ATTEMPTED TO DO.

THE GOVERNMENT HAS RECEIVED ONLY THAT WHICH THE CONTRACT PROVIDED IT SHOULD RECEIVE AND, HAVING PAID THE AGREED PRICE THEREFOR, I FIND NO LEGAL BASIS FOR THE ALLOWANCE OF AN AMOUNT IN ADDITION THERETO.