B-164845, MAR. 20, 1969

B-164845, MAR. 20, 1969

TO E. AND E. J. PFOTZER:

WE REFER TO YOUR LETTERS DATED FEBRUARY 24, 26 AND 28, 1969, WITH ENCLOSURES, WHEREIN YOU REQUESTED RECONSIDERATION OF OUR THREE PREVIOUS DECISIONS DATED OCTOBER 11, DECEMBER 4, 1968, AND JANUARY 27, 1969, WHICH DENIED YOUR CLAIM UNDER CONTRACT NO. DA-49-080-ENG-27, ISSUED BY THE CORPS OF ENGINEERS FOR THE CONSTRUCTION OF SIX ADDITIONAL FILTERS FOR THE DALECARLIA FILTRATION PLANT, WASHINGTON, D.C.

IN OUR DECISIONS WE DENIED YOUR CLAIM FOR ADDITIONAL COMPENSATION BECAUSE WE SAW NO VALID BASIS ON WHICH THE CONTRACTING OFFICER COULD BE CHARGED WITH CONSTRUCTIVE NOTICE OF ERROR IN YOUR BID. THE ABSTRACT OF BIDS, DATED AUGUST 23, 1949, DISCLOSED THAT IN ADDITION TO YOUR BID OF $292,790, OTHER BIDS WERE RECEIVED IN THE AMOUNTS OF $298,980; $386,710; $393,000; $412,786; $417,714. SINCE YOUR BID WAS ONLY $6,210 LOWER THAN THE NEXT LOWEST BID, AND ONLY $63,410 LOWER THAN THE GOVERNMENT'S ESTIMATE, WE CONCLUDED THAT THE CONTRACTING OFFICER WAS NOT ON NOTICE OF ERROR AND THAT THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE U.S. V PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SWELTING AND REFINING COMPANY V U.S., 259 U.S. 75.

YOU ALLEGE, AS A BASIS FOR RECONSIDERATION, THAT THE SECOND LOWEST BID AND THE GOVERNMENT'S ESTIMATE WERE ERRONEOUS AND THAT THE THIRD LOW BID IN THE AMOUNT OF $386,710 WAS THE LOWEST CORRECT BID. THEREFORE, THE CONTRACTIVE OFFICE SHOULD BE CHARGED WITH CONSTRUCTIVE NOTICE OF ERROR IN YOUR BID.

A MERE ALLEGATION OF ERROR IS NOT SUFFICIENT TO PROVE MISTAKES IN THE SECOND LOW BID AND THE GOVERNMENT'S ESTIMATE. THE BURDEN OF PROVING MISTAKES IS UPON YOU AND THE EVIDENCE SUBMITTED MUST BE CLEAR, CONVINCING AND TIMELY. THE RECORD BEFORE US DOES NOT OFFER A SCINTILLA OF EVIDENCE THAT EITHER THE SECOND LOW BID OR THE GOVERNMENT'S ESTIMATE WERE ERRONEOUS, AND THE RANGE OF THE BIDS IS NOT EXCEPTIONAL FOR CONSTRUCTION WORK.

IT SEEMS TO US THAT YOU ARE ATTEMPTING TO REWRITE THE SUBJECT CONTRACT AND CHANGE YOUR PRICE RETROACTIVELY IN ORDER TO RECOVER ANY LOSSES YOU MAY HAVE INCURRED IN THE CONSTRUCTION OF THE FILTERS. HOWEVER, THE RESPONSIBILITY OF PREPARING AND SUBMITTING A BID IS UPON THE BIDDER, SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V U.S., 100 CT.CL. 120, AND THERE IS NO OBLIGATION ON THE PART OF THE GOVERNMENT TO HAVE ITS CONTRACTING OFFICERS ACT AS GUARDIANS FOR CARELESS BIDDERS. SEE 18 COMP. GEN. 679, 8 COMP. GEN. 397. MOREOVER, OUR DECISIONS DISTINGUISH BETWEEN ITEMS INADVERTENTLY OMITTED FROM BIDS, AS BEING THE TYPE FOR WHICH RELIEF CAN BE GRANTED, AS OPPOSED TO CASES WHERE THE ERROR ESTABLISHED COULD ONLY BE CORRECTED BY PERMITTING THE BIDDER TO RECALCULATE AND CHANGE HIS BID TO INCLUDE FACTORS WHICH HE DID NOT HAVE IN MIND WHEN THE BID WAS SUBMITTED. SEE 31 COMP. GEN. 183, 18 COMP. GEN. 142.

YOUR CLAIM FOR ADDITIONAL COMPENSATION, BASED ON THE THEORY OF MISTAKE IN BID, WAS CONCEIVED SEVERAL YEARS AFTER THE CONTRACT WAS COMPLETED IN FEBRUARY 17, 1951. NOT UNTIL NOVEMBER 28, 1961, DID YOU FILE YOUR SUBJECT CLAIM WITH OUR OFFICE AND YOUR THEORY OF RECOVERY APPEARS ON THE RECORD FOR THE FIRST TIME IN A LETTER DATED FEBRUARY 17, 1965, TO THE ENGINEER BOARD OF CONTRACT APPEALS. IN FACT IT DOES NOT APPEAR THAT YOU CONCLUDED THAT YOU HAD MADE ANY ERROR UNTIL YOU HAD MADE CONSIDERABLE PROGRESS ON THE PROJECT.

THE RECORD BEFORE US IS NOT SUFFICIENT TO CREATE A PRESUMPTION THAT THE CORPS OF ENGINEERS WAS AWARE AND SOUGHT TO TAKE ADVANTAGE OF YOUR ERROR. ERRORS FOR WHICH CORRECTION MAY BE ALLOWED ARE USUALLY SUCH AS RESULT FROM ISTAKES IN COMPUTATION, OR INADVERTENT OMISSION OF SOME KNOWN ELEMENT, RESULTING IN THE BID SUBMITTED BEING OTHER THAN WHAT THE BIDDER ACTUALLY INTENDED. WE FIND NOTHING IN THE RECORD HERE TO INDICATE THAT YOUR BID WAS NOT EXACTLY WHAT YOU INTENDED IT TO BE, AND THE FACT THAT YOU MAY HAVE CHOSEN TO FIX A PRICE WITHOUT ANY ADEQUATE BASIS BY WAY OF SUPPLIER OR SUBCONTRACTOR QUOTATIONS OR DETAILED COST ESTIMATES DOES NOT GIVE RISE TO ANY RIGHT TO CALL ON THE GOVERNMENT TO MAKE UP THE RESULTING LOSS. REQUIRE THE CONTRACTING OFFICER TO CONCLUDE THAT NOT ONLY THE LOW BID, BUT ANOTHER VERY CLOSE TO IT, ARE BOTH PROBABLY ERRONEOUS, WOULD, WE BELIEVE, IMPOSE TOO GREAT A BURDEN ON THE GOVERNMENT (SEE SALIGMAN V U.S., 56 F.SUPP. 505) AND WOULD BE CONTRARY TO THE PUBLIC INTEREST.

WE FIND, THEREFORE, NO REASON TO MODIFY OUR PREVIOUS DECISIONS OF OCTOBER 11, DECEMBER 4, 1968, AND JANUARY 27, 1969.