B-146592, DEC. 18, 1961

B-146592, DEC. 18, 1961

TO EARLE K. SHAWE, ESQUIRE:

WE HAVE YOUR LETTER OF NOVEMBER 15, 1961, WITH FURTHER REFERENCE TO AN ALLEGED ERROR IN BID BY DOLL PAINTING COMPANY, INC., IN CONNECTION WITH CONTRACT NBY-36844 DATED APRIL 29, 1961.

YOU CONTEND THAT THE DEPARTMENT OF THE NAVY BEARS PARTIAL RESPONSIBILITY FOR THE ERROR BY SPECIFYING THE LESS COMMON AND MORE EXPENSIVE SHINGLE AND THAT THE NAVY HAS NOW ATTEMPTED TO VITIATE THE COMPANY'S RIGHT OF APPEAL FOR RELEASE FROM THE CONTRACT BY INSISTING THAT WORK BE STARTED BEFORE A DECISION CAN BE RENDERED BY THIS OFFICE.

THE ROOFING SHINGLES TO BE USED IN THE PERFORMANCE OF THIS CONTRACT WERE PLAINLY DESCRIBED AND CLEARLY IDENTIFIED BY A REFERENCE TO THE PERTINENT FEDERAL SPECIFICATION. THE FACT THAT THIS PARTICULAR SHINGLE PREVIOUSLY MAY NOT HAVE BEEN COMMONLY USED DOES NOT EXCUSE A BIDDER'S FAILURE TO PROPERLY IDENTIFY THE TYPE REQUIRED. THERE WERE 12 BIDDERS ON THIS INVITATION AND THERE IS NO INDICATION THAT ANY OF THE OTHER BIDDERS WERE MISLED OR THAT THEY BID ON OTHER THAN SPECIFICATION MATERIAL. IT SEEMS CLEAR, THEREFORE, THAT THE ERROR BY DOLL PAINTING COMPANY, INC., WAS UNILATERAL AND, AS SUCH, IS NOT ENTITLED TO CONSIDERATION AS A BASIS FOR RELIEF. THIS IS PARTICULARLY TRUE IN VIEW OF THE COMPANY'S VERIFICATION OF ITS BID AT THE REQUEST OF THE GOVERNMENT. SEE 27 COMP. GEN. 17 AND CASES THERE CITED.

WITH REFERENCE TO YOUR STATEMENT THAT THE NAVY HAS INSISTED THAT WORK BE STARTED BEFORE A DECISION COULD BE RENDERED BY THIS OFFICE, YOU ARE REMINDED THAT OUR DECISION TO YOU DATED NOVEMBER 3, 1961, WAS TO THE EFFECT THAT A VALID CONTRACT EXISTS AND THAT DOLL PAINTING COMPANY, INC., WOULD BE CHARGEABLE WITH ANY EXCESS COST RESULTING FROM A DEFAULT. THE NAVY WAS IN ALL PROBABILITY PROTECTING THE COMPANY'S INTEREST BY URGING IT TO START WORK, SINCE A CONTRACTOR WHO HAS UNDERBID CAN USUALLY MINIMIZE ANY LOSS BY PERFORMING INSTEAD OF BEING CHARGED WITH THE EXCESS COST. PERFORMANCE BY A REPLACING CONTRACTOR.

WE HAVE BEEN INFORMALLY ADVISED BY THE DEPARTMENT OF THE NAVY THAT DOLL PAINTING COMPANY, INC., HAS BEEN PERFORMING FOR ABOUT 30 DAYS AND THAT THE SUBSTITUTE CLASS B SHINGLE IS BEING USED. THE CONTRACT PROVIDES THAT IF A CHANGE IS MADE IN THE SPECIFICATIONS, AS EQUITABLE ADJUSTMENT OF THE AMOUNT DUE SHALL BE MADE AS AGREED UPON BY THE CONTRACTOR AND THE CONTRACTING OFFICER, AND IF THE PARTIES FAIL TO AGREE, ADEQUATE APPEAL PROCEDURES ARE PROVIDED. UPON COMPLETION OF THE WORK, AN ADJUSTMENT WILL BE MADE IN ACCORDANCE WITH THE CONTRACT TERMS.