B-159930, SEP. 7, 1966

B-159930, SEP. 7, 1966

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER DATED AUGUST 22, 1966, WITH ATTACHMENTS, FROM THE DEPUTY ASSISTANT SECRETARY, REQUESTING OUR DECISION AS TO THE ACTION TO BE TAKEN CONCERNING A MISTAKE IN BID ALLEGED BY THE PERRYVILLE STEEL PRODUCTS COMPANY TO HAVE BEEN MADE IN ITS BID UNDER INVITATION NO. SFW 3- 728, ISSUED BY THE BUREAU OF SPORTS FISHERIES AND WILDLIFE, ON WHICH CONTRACT NO. 14-16-0003-12,258 IS BASED.

THE INVITATION WAS ISSUED MAY 18, 1966, FOR FURNISHING AND ERECTING TWO METAL BUILDINGS, FURNISHING AND INSTALLING SEWER AND WATER SYSTEMS, AND ALLIED ITEMS OF WORK AT THE MINGO NATIONAL WILDLIFE REFUGE (JOB CORPS CONSERVATION CENTER) NEAR PUXICO, MISSOURI. THE DATE SET FOR BID OPENING WAS JUNE 8, 1966.

ONLY ONE BID WAS RECEIVED FROM THE PERRYVILLE STEEL PRODUCTS COMPANY, DATED JUNE 7, 1966, IN THE TOTAL AMOUNT OF $79,731.07. THE GOVERNMENT ENGINEER'S ESTIMATE FOR THE WORK WAS $81,355. BY LETTER DATED JUNE 28, 1966, THE BUREAU'S CONTRACTING OFFICER NOTIFIED THE COMPANY OF THE ACCEPTANCE OF ITS BID AND REQUESTED THAT THE CONTRACT BE EXECUTED AND RETURNED WITH THE NECESSARY PAYMENT AND PERFORMANCE BONDS. THE CONTRACT AND BONDS HAVE NOT BEEN EXECUTED AND RETURNED AND NO NOTICE TO PROCEED HAS BEEN ISSUED.

PERRYVILLE STEEL PRODUCTS COMPANY, AT 10:20 A.M., ON JULY 7, 1966, CALLED THE CONTRACTING OFFICER BY TELEPHONE AND STATED THAT IT HAD OMITTED THE COST OF CERTAIN CONCRETE AND PARTITION WORK FROM ITS BID. BY LETTER OF JULY 9, 1966, THE CONTRACTOR CONTENDED THAT ON JULY 5, 1966, ITS ENGINEERS, IN PREPARING TO ORDER MATERIAL FOR THE PROJECT, DISCOVERED AN ERROR IN THE COMPUTATION FOR BID ITEM NO. 2, THE CANTEEN LAUNDRY BUILDING. IN PARTICULAR, THE COMPANY CLAIMS THAT IT HAD NEGLECTED TO INCLUDE FIGURES FOR FOUNDATION, FLOORS, AND CARPENTRY WORK IN THE AMOUNT OF $9,370, PLUS 12 PERCENT FOR OVERHEAD, ENGINEERING AND PROFIT, AND 1 1/2 PERCENT FOR PERFORMANCE AND PAYMENT BOND. THE TOTAL AMOUNT OF THE ALLEGED ERROR IS $10,611.53.

WHILE IT MAY BE THAT THE PERRYVILLE STEEL PRODUCTS COMPANY MADE A BONA FIDE ERROR IN COMPUTING ITS BID IN THAT IT FAILED TO INCLUDE THE COSTS FOR CONCRETE FOUNDATION AND FLOOR FOR BID ITEM 2, WE FIND NO LEGAL BASIS TO RELIEVE THE CONTRACTOR. IT IS REPORTED, AND WE AGREE, THAT THE VARIANCE IN AMOUNT BETWEEN THE BID SUBMITTED AND THE GOVERNMENT ENGINEER'S ESTIMATE WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE ERROR IN BID AND THAT THE MISTAKE ASSERTED IS UNILATERAL. SEE 17 COMP. GEN. 560; 26 ID. 415. THE INVITATION ISSUED IN THE PRESENT CASE WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT AS TO THE MATERIALS AND CONSTRUCTION REQUIRED TO BE FURNISHED. 26 COMP. GEN. 415. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS ON THE BIDDER. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163, AND 31 COMP. GEN. 323.

IT IS WELL ESTABLISHED THAT IF THE MISTAKE ALLEGED AFTER AWARD IS UNILATERAL, IT FURNISHES NO GROUND FOR REFORMATION. SEE SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, AND CASES CITED THEREIN. THE ACCEPTANCE OF A BID SUCH AS HERE INVOLVED, IN GOOD FAITH AND WITHOUT NOTICE OF ERROR, CONSUMMATES A VALID AND BINDING CONTRACT. UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE RIGHT WHICH VESTED IN THE GOVERNMENT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT, CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT, SEE 18 COMP. GEN. 942, 950, AND THIS RULE APPLIES EVEN THOUGH THE PARTIES CONTEMPLATE THAT A FORMAL WRITTEN CONTRACT IS TO BE THEREAFTER EXECUTED BY THE PARTIES, AND IRRESPECTIVE OF WHETHER SUCH FORMAL CONTRACT IS THEREAFTER EXECUTED. 23 COMP. GEN. 596.

ACCORDINGLY, YOU ARE ADVISED THAT NO LEGAL BASIS EXISTS FOR GRANTING RELIEF TO PERRYVILLE STEEL PRODUCTS COMPANY EITHER BY WAY OF RESCISSION OR BY WAY OF REFORMATION OF THE CONTRACT.