B-67785, JULY 16, 1947, 27 COMP. GEN. 17

B-67785: Jul 16, 1947

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BIDS - MISTAKES WHERE THE INVITATION TO BID WAS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT AND THE CONTRACTING OFFICER REQUESTED AND RECEIVED. 1947: I HAVE YOUR LETTER OF JULY 3. TO HAVE BEEN MADE IN ITS BID DATED APRIL 6. WHICH WAS ACCEPTED ON MAY 22. AWARD ON ITEM 2 WAS MADE TO THE FABRI-STEEL CO. WE ARE FACED WITH A SERIOUS PROBLEM AND WOULD LIKE YOUR ADVICE ON WHAT CAN BE DONE. HIS TOTAL WEIGHT FOR THE TEN RACKS WAS 15. THE ACTUAL WEIGHT IS 45. WE WERE UNABLE TO CHECK THE WEIGHTS AS WE HAD NO SPECIFICATION TO GO BY. WE WERE ALSO UNABLE TO LOCATE HIS TAKE-OFF SHEET AT THAT TIME AS WE WERE IN THE PROCESS OF MOVING INTO OUR NEW LOCATION. WE HAVE. LOCATED HIS TAKE OFF AND ARE ENCLOSING IT WITH HIS ERROR MARKED IN BLUE PENCIL.

B-67785, JULY 16, 1947, 27 COMP. GEN. 17

BIDS - MISTAKES WHERE THE INVITATION TO BID WAS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT AND THE CONTRACTING OFFICER REQUESTED AND RECEIVED, PRIOR TO AWARD, CONFIRMATION OF THE CONTRACTOR'S BID AS TO WEIGHTS AND PRICES, AN ERROR IN THE SHIPPING WEIGHT ALLEGED SUBSEQUENT TO AWARD MUST BE REGARDED AS AN UNILATERAL--- NOT MUTUAL--- MISTAKE, DUE SOLELY TO THE CONTRACTOR'S NEGLIGENCE OR OVERSIGHT AND IN NOWISE CONTRIBUTED TO BY THE GOVERNMENT AND MAY NOT BE REGARDED AS AFFORDING ANY LEGAL BASIS FOR MODIFYING THE BID WHICH, HAVING BEEN ACCEPTED BY THE GOVERNMENT IN GOOD FAITH, CONSUMMATED A VALID AND BINDING CONTRACT.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, JULY 16, 1947:

I HAVE YOUR LETTER OF JULY 3, 1947, WITH ENCLOSURES, RELATIVE TO AN ERROR ALLEGED BY THE FABRI-STEEL CO. TO HAVE BEEN MADE IN ITS BID DATED APRIL 6, 1947, WHICH WAS ACCEPTED ON MAY 22, 1947. YOU REQUEST A DECISION AS TO THE ACTION TO BE TAKEN IN THE MATTER.

THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, DENVER, COL., INVITED BIDS UNDER SPECIFICATION NO. 1746--- TO BE OPENED APRIL 8, 1947 -- FOR FURNISHING ONE LOT OF TRASHRACKS FOR HORSETOOTH DAM, ITEM 2. PARAGRAPH 14 OF THE SPECIAL CONDITIONS SPECIFIED THAT EACH BIDDER SHOULD STATE, IN THE BLANKS PROVIDED THEREFOR IN THE SCHEDULE, THE SHIPPING POINTS, FREIGHT CLASSIFICATIONS, AND TOTAL SHIPPING WEIGHTS OF THE APPARATUS TO BE SHIPPED UNDER EACH FREIGHT CLASSIFICATION FROM EACH SHIPPING POINT INVOLVED, AND THAT, UNDER BIDS PROVIDING FOR DELIVERY F.O.B. CARS AT THE SHIPPING POINT, ALL EQUIPMENT, MATERIALS AND SUPPLIES WOULD BE SHIPPED ON GOVERNMENT BILLS OF LADING AND THE TOTAL SHIPPING WEIGHTS, FREIGHT CLASSIFICATIONS, AND SHIPPING POINTS STATED BY THE BIDDER IN HIS BID WOULD BE USED IN COMPUTING THE DELIVERED COST TO THE GOVERNMENT AND IN DETERMINING THE LOW BID.

IN RESPONSE TO THE INVITATION, THE FABRI-STEEL 1 CO. SUBMITTED A BID DATED APRIL 6, 1947, WHEREIN IT OFFERED TO FURNISH ITEM 2 FOR $1,544 F.O.B. CARS OAKLAND, CALIF., AND SPECIFIED THE SHIPPING WEIGHT AS 15,750 POUNDS.

BY LETTERS DATED APRIL 22 AND MAY 12, 1947, THE BUREAU OF RECLAMATION REQUESTED THE COMPANY TO CONFIRM THE WEIGHTS AND PRICES SPECIFIED IN ITS BID AND, IN REPLY OF MAY 16, 1947, THE COMPANY STATED- -

REGARDING OUR BID OF APRIL 6, 1947, SPEC. 1746 FOR TRASHRACKS, WE WISH TO CONFIRM THE FOLLOWING WEIGHTS AND PRICES AS QUOTED:

ITEM NUMBER 1 WEIGHT 7200 POUNDS PRICE $715.00 FOB SHIPPING POINT

ITEM NUMBER 2 WEIGHT 15750 POUNDS PRICE $1544.00 FOB SHIPPING POINT

COMBINATION BID FOR BOTH ITEMS NUMBER 1 AND 2 $2,215.00 F.O.B. SHIPPING POINT. AWARD ON ITEM 2 WAS MADE TO THE FABRI-STEEL CO. ON MAY 22, 1947. BY LETTER DATED JUNE 2, 1947, THE COMPANY ADVISED THE BUREAU OF RECLAMATION AS FOLLOWS:

REGARDING THE AWARD MADE TO THIS COMPANY FOR ITEM NUMBER 2 OF SPECIFICATIONS NUMBER 1746 FOR TRASHRACKS FOR THE OUTLET WORKS AT HORSETOOTH DAM, COLORADO BIG THOMPSON PROJECT, COLORADO.

WE ARE FACED WITH A SERIOUS PROBLEM AND WOULD LIKE YOUR ADVICE ON WHAT CAN BE DONE. OUR ESTIMATOR, W. SJOBERG, NO LONGER IN OUR EMPLOY, MADE AN ERROR ON THE TAKE OFF FOR THIS PROJECT. HIS TOTAL WEIGHT FOR THE TEN RACKS WAS 15,190 LBS. THE ACTUAL WEIGHT IS 45,520 POUNDS. WHEN YOUR LETTER OF MAY 12TH REACHED US, WE WERE UNABLE TO CHECK THE WEIGHTS AS WE HAD NO SPECIFICATION TO GO BY. WE WERE ALSO UNABLE TO LOCATE HIS TAKE-OFF SHEET AT THAT TIME AS WE WERE IN THE PROCESS OF MOVING INTO OUR NEW LOCATION. WE HAVE, SINCE HOWEVER, LOCATED HIS TAKE OFF AND ARE ENCLOSING IT WITH HIS ERROR MARKED IN BLUE PENCIL.

IF WE ARE FORCED TO FULFILL THIS CONTRACT, IT WILL MEAN THAT WE WILL TAKE QUITE A LOSS, SOMETHING THAT WE CANNOT AFFORD TO DO AT THE PRESENT TIME.

WE WOULD APPRECIATE HEARING FROM YOU ADVISING US OF WHAT COURSE THAT WE CAN TAKE.

THE REFERRED-TO ESTIMATE SHEET SHOWS CERTAIN FIGURES--- APPARENTLY WEIGHTS--- UNDER THE HEADING , HORSETOOTH DAM" WHICH TOTAL 1,519 AND WHICH WAS EXTENDED ON THE BASIS OF A QUANTITY OF 10 TO THE TOTAL AMOUNT OF 15,190. ONE OF THE FIGURES COMPRISING SAID TOTAL OF 1,519 IS 345 WHICH FIGURE IS ENCIRCLED BY A BLUE PENCIL MARK AND IN CONNECTION WITH WHICH A NOTATION APPEARS " ERROR--- SHOULD BE 3395 POUNDS.'

THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AS TO THE NEEDS OF THE GOVERNMENT. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE BIDDER. SEE FRAZIER- DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.1CLS. 120, 163. IT IS CLEAR FROM THE STATEMENTS MADE BY THE COMPANY IN ITS LETTER OF JUNE 2, 1947, THAT ANY ERROR THAT MAY HAVE BEEN MADE IN THE BID WAS DUE SOLELY TO THE LACK OF PROPER CARE ON THE PART OF THE COMPANY IN COMPUTING ITS BID, AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE STEINMEYER ET AL. V. SCHROEPPEL, 226 ILL. 9, 80 N.E. 564, WHEREIN THE COURT DENIED RELIEF TO APPELLANT WHO HAD MADE A MISTAKE IN ADDING A COLUMN OF FIGURES REPRESENTING THE EXTENSIONS OF ITEMS ON WHICH BIDS WERE REQUESTED AND THE ERROR WAS NOT ALLEGED UNTIL AFTER AWARD. THE COURT STATED WITH RESPECT TO THE MATTER OF THE MISTAKE, PAGE 566, AS FOLLOWS:

* * * IF IT (THE CONTRACT) CAN BE SET ASIDE ON ACCOUNT OF THE ERROR IN ADDING UP THE AMOUNTS REPRESENTING THE SELLING PRICE, IT COULD BE SET ASIDE FOR A MISTAKE IN COMPUTING THE PERCENTAGE OF PROFITS WHICH APPELLANTS INTENDED TO MAKE, OR ON ACCOUNT OF A MISTAKE IN THE COST OF THE LUMBER TO THEM, OR ANY OTHER MISCALCULATION ON THEIR PART. IF EQUITY WOULD RELIEVE ON ACCOUNT OF SUCH A MISTAKE THERE WOULD BE NO STABILITY IN CONTRACTS, AND WE THINK THE APPELLATE COURT WAS RIGHT IN CONCLUDING THAT THE MISTAKE WAS NOT OF SUCH A CHARACTER AS TO ENTITLE THE APPELLANTS TO THE RELIEF PRAYED FOR.

IT IS CLEAR THAT SUCH MISTAKE AS WAS MADE BY THE COMPANY IN ITS BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.1SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.1CLS. 249, 259.

MOREOVER, THE COMPANY WAS REQUESTED TO VERIFY ITS BID AS TO WEIGHTS AND PRICES, AND IN REPLY IT CONFIRMED THE WEIGHTS AND PRICES SPECIFIED IN ITS BID. AFTER SUCH VERIFICATION, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO MAKE FURTHER INQUIRY AS TO THE CORRECTNESS OF THE BID. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 89 N.J.L. 1, 97 A. 774, AND SHRIMPTON MANUFACTURING COMPANY V. BRIN, 59 TEX. CIV. APP. 352, 125 S.W. 942. THE FACT THAT THE ACCEPTANCE OF THE BID WAS NOT MADE UNTIL AFTER THE COMPANY HAD BEEN GIVEN AN OPPORTUNITY TO VERIFY ITS BID, PRECLUDES ANY ASSUMPTION THAT THE CONTRACTING OFFICER EXERCISED BAD FAITH OR ATTEMPTED TO TAKE ADVANTAGE OF THE COMPANY. SEE 10 COMP. GEN. 388; 14 ID. 453; AND 18 ID. 942. ALTHOUGH, AFTER AWARD, THE COMPANY FURNISHED ITS ESTIMATE SHEET IN SUPPORT OF ITS CLAIM OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER WAS AWARE OF THE FACTORS USED BY THE COMPANY IN COMPUTING ITS BID. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED BY THE COMPANY UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP CO., 239 U.S. 88; UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, I FIND NO LEGAL BASIS FOR MODIFYING THE CONTRACT BASED ON THE BID OF THE FABRI-STEEL CO. WHICH WAS ACCEPTED; HENCE, THE COMPANY SHOULD BE REQUIRED TO FURNISH THE TRASHRACKS UNDER ITEM 2 OF ITS BID ON THE BASIS SPECIFIED IN ITS BID.