B-143706, DECEMBER 2, 1960, 40 COMP. GEN. 326

B-143706, DECEMBER 2, 1960, 40 COMP. GEN. 326

CONTRACTS - MISTAKES - FAILURE TO INCLUDE AN ITEM - COMPLEX PROCUREMENTS THE FAILURE OF A SUPPLY CONTRACTOR TO INCLUDE AN ITEM IN HIS BID BECAUSE HE BELIEVED THAT THE ITEM WAS TO BE FURNISHED BY THE CONSTRUCTION CONTRACTOR ON THE SAME PROJECT ALTHOUGH THE AMENDED DRAWINGS AND A REISSUED ADDENDUM TO THE INVITATION CLEARLY PROVIDED THAT THE ITEM WAS TO BE FURNISHED BY THE SUPPLY CONTRACTOR MUST BE REGARDED AS A UNILATERAL MISTAKE AND IN THE ABSENCE OF ANYTHING TO PUT THE CONTRACTING OFFICER ON NOTICE OF POSSIBLE ERROR, THE AWARD WHICH WAS MADE SIXTEEN DAYS AFTER OPENING AND PRIOR TO ANY ALLEGATION BY THE SUPPLY CONTRACTOR OF ERROR MUST BE HELD TO HAVE CONSUMMATED A BINDING CONTRACT OBLIGATING THE CONTRACTOR TO FURNISH THE ITEM. IN RELATED PROCUREMENTS WHICH REQUIRED THE SUPPLY CONTRACTOR TO FURNISH STANDARDIZED EQUIPMENT AND THE CONSTRUCTION CONTRACTOR TO PROVIDE FOR INSTALLATION OF THE EQUIPMENT, THE FACT THAT A PARTICULAR COMPONENT OVERLOOKED BY THE SUPPLY CONTRACTOR WAS LISTED IN THE TECHNICAL PROVISIONS OF THE INVITATION MANY PAGES AFTER THE PARAGRAPH SPECIFYING THE EQUIPMENT DOES NOT MAKE THE PARAGRAPH SPECIFYING THE COMPONENT LESS APPLICABLE TO THE SUPPLY CONTRACTOR PARTICULARLY IN VIEW OF THE FACT THAT THE TECHNICAL CONDITIONS WERE COMMON TO BOTH INVITATIONS AND DID NOT PURPORT TO FIX THE RESPECTIVE RESPONSIBILITIES OF THE CONSTRUCTION CONTRACTOR AND THE SUPPLY CONTRACTOR. ALTHOUGH AN EXPLANATION IN AD ADDENDUM TO A COMPLEX PROCUREMENT INVITATION OF THE EFFECT OF THE CHANGES WOULD HAVE BEEN HELPFUL TO BIDDERS IN CONSIDERING THE CHANGES, THERE IS NO BASIS UPON WHICH THE CONTRACTING AGENCY CAN BE CHARGED WITH THE DUTY OF FURNISHING SUCH EXPLANATION TO BIDDERS WHO COULD HAVE DETECTED THE CHANGES BY A CURSORY COMPARISON OF THE ORIGINAL WITH THE REVISED SPECIFICATIONS.

TO THE SECRETARY OF THE ARMY, DECEMBER 2, 1960:

REFERENCE IS MADE TO A LETTER DATED AUGUST 4, 1960, FROM THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, WHICH FORWARDED A REQUEST BY NORDBERG MANUFACTURING COMPANY FOR REFORMATION OF CONTRACTS NOS. DA-25-066-ENG 5963 THROUGH 5968.

THIS REQUEST ARISES OUT OF A MISTAKE ALLEGEDLY MADE BY THAT COMPANY IN FAILING TO INCLUDE THE COST OF ANCHOR BOLT AND HOLD-DOWN DEVICES IN ITS BID TO FURNISH ELECTRICAL GENERATING EQUIPMENT, GROUP II, AS SET OUT IN SCHEDULE E OF IFB NO. ENG-25-066-60-35, AND THE FAILURE OF THE BIDDER TO NOTICE THE MISTAKE PRIOR TO AWARD UNDER THE INVITATION OF THE CONTRACTS CITED ABOVE.

IFB NO. ENG-25-066-60-35 WAS ISSUED ON OCTOBER 20, 1959, AND SOLICITED BIDS FOR THE FURNISHING OF STANDARDIZED EQUIPMENT, WS-107 A 2, TECHNICAL FACILITIES, COMPLEX A, B, AND C, ELLSWORTH AIR FORCE BASE, SOUTH DAKOTA, AND OTHER LOCATIONS. ON THE SAME DATE IFB NO. ENG-25-066 60-1---ISSUED UNDER THE SAME COVER--- REQUESTED BIDS FOR "FURNISHING ALL PLANT, LABOR, MATERIALS, AND EQUIPMENT, EXCEPT STANDARDIZED EQUIPMENT, AND PERFORMING ALL WORK, INCLUDING INSTALLATION OF STANDARDIZED EQUIPMENT, FOR CONSTRUCTION OF WS-107 A-2 TECHNICAL FACILITIES AT ELLSWORTH AIR FORCE BASE, RAPID CITY, SOUTH DAKOTA, IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, DRAWINGS AND ADDENDA FORMING PARTS THEREOF AS FOLLOWS: SPECIFICATIONS, SERIAL NO. ENG-25-066-60-1 DATED 20 OCTOBER 1959 WITH SCHEDULES AND DRAWINGS LISTED THEREIN.'

PARAGRAPH SC-6 OF IFB ENG-25-066-60-35, THE SUPPLY CONTRACT INVITATION, ADVISED BIDDERS THAT EACH SUPPLY CONTRACT AWARDED UNDER THE INVITATION MIGHT BE ASSIGNED TO A GENERAL CONSTRUCTION CONTRACTOR AT EACH OF THE SITES DESIGNATED BY THE SUPPLY INVITATION FOR DELIVERY OF THE EQUIPMENT, AND THE SUPPLY CONTRACT INVITATION SPECIFICALLY PROVIDED, AT PAGE TC-1, THAT THE TECHNICAL PROVISIONS INCLUDED IN THE CONSTRUCTION CONTRACT INVITATION WOULD FORM A PART OF THE SUPPLY CONTRACT SPECIFICATIONS. BIDDERS WERE FURTHER ADVISED BY CLAUSES 8 AND 9, PAGES 21 AND 22, OF THE SUPPLY CONTRACT INVITATION THAT THE TECHNICAL PROVISIONS AND THE ACCOMPANYING DRAWINGS OF THE CONSTRUCTION CONTRACT INVITATION ALSO COVERED AND DETAILED REQUIREMENTS FOR THE EQUIPMENT AND SERVICES LISTED IN THE SCHEDULE OF EQUIPMENT ITEMS, WHICH ACCOMPANIED THE SUPPLY CONTRACT INVITATION AND DESCRIBED THE ITEMS OF EQUIPMENT ON WHICH SUPPLY CONTRACT BIDS WERE TO BE SUBMITTED.

PARAGRAPH SC-5 OF THE SUPPLY CONTRACT INVITATION WAS ENTITLED " STANDARDIZED EQUIPMENT," AND SUBPARAGRAPH A PROVIDED AS FOLLOWS:

(A) IN THE INTEREST OF NATIONAL DEFENSE AND IN ORDER TO ACHIEVE THE UTMOST OPERATIONAL EFFICIENCY AND RELIABILITY, IT IS REQUIRED THAT EACH ITEM OF EQUIPMENT (HEREIN REFERRED TO AS " STANDARDIZED EQUIPMENT") TABULATED BELOW, BE THE SAME MAKE AND MODEL AT THE SEVERAL SITES. QUANTITIES OF ITEMS AS LISTED ARE THOSE REQUIRED FOR ONE SQUADRON CONSISTING OF THREE COMPLEXES AND ARE THE NUMBER OF EACH ITEM TO BE INCLUDED IN EACH SET AS REFERENCED IN THE BID SCHEDULES. THE EQUIPMENT NOS. ARE FOR IDENTIFICATION OF THE VARIOUS ITEMS OF EQUIPMENT ON THE CONTRACT DRAWINGS WHICH INDICATE THE INTENDED GENERAL LAYOUT AND ARRANGEMENTS FOR THE INSTALLED EQUIPMENT INCLUDING MAXIMUM SPACE ALLOCATIONS FOR EACH ITEM WHERE APPLICABLE. (ITALICS SUPPLIED)

THIS WAS FOLLOWED BY A 13 PAGE (PAGE SC-5 THROUGH SC-17) LISTING OF " STANDARDIZED EQUIPMENT" DIVIDED INTO NINE CATEGORY SCHEDULES AND IDENTIFIED AS SCHEDULES A THROUGH J. SCHEDULE E, WHICH COVERS THE ITEMS AWARDED TO NORDBERG MANUFACTURING COMPANY, APPEARED AT PAGES SC-13 THROUGH SC-15. WHILE THIS SCHEDULE LISTED VARIOUS ITEMS OF ACCESSORIES TO THE GENERATORS, IT MADE NO REFERENCE TO ANCHOR OR FOUNDATION BOLTS.

SUBPARAGRAPH SC-5 (B) APPEARED ON THE LAST PAGE OF THE " STANDARDIZED EQUIPMENT LISTING," IMMEDIATELY FOLLOWING THE LISTING OF THE LAST SCHEDULE OF " STANDARDIZED EQUIPMENT," ENTITLED " GROUP VIII PUMPS," AND READ AS FOLLOWS:

B. PERTINENT ANCHOR AND HOLD-DOWN DEVICES AND ALL SPECIFIED SHOCK PROOFING DEVICES FOR THE ABOVE-LISTED EQUIPMENT ITEMS SHALL BE FURNISHED HEREWITH.

SECTION 48 OF THE TECHNICAL PROVISIONS WHICH WERE COMMON TO THE TWO INVITATIONS WAS ENTITLED " GENERATING PLANT, DIESEL ELECTRIC," AND PARAGRAPH 48-03F PROVIDED AS FOLLOWS:

F. FOUNDATION BOLTS. FOUNDATION BOLTS SHALL BE PROVIDED OF ADEQUATE DIMENSIONS WITH REGARD TO LENGTH, DIAMETER, ANCHORING DEVICE, AND QUALITY OF MATERIAL TO INSURE AGAINST FAILURE.

PARAGRAPH 45 OF THE SPECIAL CONDITIONS TO THE CONSTRUCTION CONTRACT WAS ENTITLED " STANDARDIZED EQUIPMENT" AND CLAUSES SC-45A, B, AND C THEREOF PROVIDED AS FOLLOWS:

A. IN THE INTEREST OF NATIONAL DEFENSE AND IN ORDER TO ACHIEVE THE UTMOST OPERATIONAL EFFICIENCY AND RELIABILITY, IT IS REQUIRED THAT THE INSTALLED EQUIPMENT (HEREIN REFERRED TO AS " STANDARDIZED EQUIPMENT") TABULATED BELOW, BE THE SAME MAKE AND MODEL AT SEVERAL SITES. THIS EQUIPMENT WILL BE PROCURED BY THE GOVERNMENT UNDER INVITATION ENG-25 066-60-35 INCLUDED WITH THIS ADVERTISEMENT AND WILL BE FURNISHED THIS CONTRACTOR IN THE QUANTITIES LISTED BELOW BY ASSIGNMENT OF CONTRACT (SEE SC-46 THIS INVITATION AND SC-6 INVITATION ENG-25-066-60-35).

B. WHERE APPLICABLE, ALL ITEMS OF STANDARDIZED EQUIPMENT WILL BE FURNISHED WITH ALL NECESSARY HOLD DOWN DEVICES, ANCHOR BOLTS AND INTEGRAL SHOCK MOUNTING DEVICES COMPATIBLE WITH THE STRUCTURAL FEATURES AND DIMENSIONS AT THE LOCATION OF ATTACHMENT.

C. THE CONTRACTOR SHALL FURNISH ALL NECESSARY LABOR, EQUIPMENT, MATERIALS AND INCIDENTALS TO INCORPORATE THE ITEMS OF STANDARDIZED EQUIPMENT INTO THE FEATURES OF CONSTRUCTION UNDER THIS CONTRACT.

(FOR LIST OF STANDARDIZED EQUIPMENT SEE PAGES SC-32 THRU SC-52).

PAGES SC-43 THROUGH SC-45 LISTED IDENTICAL EQUIPMENT AND ACCESSORIES TO THOSE LISTED ON PAGES SC-13 THROUGH SC-15 OF THE SUPPLY CONTRACT INVITATION, AGAIN WITHOUT MENTION OF ANCHOR BOLT OR HOLD-DOWN DEVICES AS A PART OF SUCH EQUIPMENT OR ACCESSORIES.

CONTRACT DRAWING NO. 88-S-1, SHEET 620, ENTITLED " POWERHOUSE GENERATOR FOUNDATION" ORIGINALLY CONTAINED THE FOLLOWING GENERAL NOTE 1:

1. ANCHOR BOLT DETAILS SHALL BE TAKEN FROM MANUFACTURER'S DRAWINGS. CONTRACTOR TO FURNISH. ELEVATIONS TO BE AS SHOWN ON MECHANICAL DRAWINGS.

HOWEVER, PARAGRAPH B (2) (H) OF ADDENDUM NO. 2 DATED NOVEMBER 24, 1959, TO THE CONSTRUCTION CONTRACT INVITATION REVISED AND REISSUED DRAWING NO. 88-S-1 SO AS TO DELETE NOTE 1 QUOTED ABOVE AND SUBSTITUTE THE FOLLOWING NOTE 5:

5. CONTRACTOR TO FURNISH ALL ANCHOR BOLTS EXCEPT THOSE FURNISHED WITH STANDARDIZED EQUIPMENT.

THE FILE SUBMITTED TO THIS OFFICE CONTAINS NO INDICATION THAT NORDBERG MANUFACTURING COMPANY IS CONTESTING THE FACT THAT THE APPLICABLE CONDITIONS, SPECIFICATIONS, AND DRAWINGS, AS AMENDED BY ADDENDUM NO. 2 DATED NOVEMBER 24, 1959, AND INCORPORATED INTO THE SUPPLY AND CONSTRUCTION CONTRACTS, OBLIGATE NORDBERG TO FURNISH THE ANCHOR BOLTS.

THEREFORE, IT APPEARS THAT THE SOLE QUESTION PRESENTED TO THIS OFFICE IS WHETHER THE FACTS AND CIRCUMSTANCES ARE SUFFICIENT TO SUPPORT THE REQUESTED REFORMATION OF THE CONTRACT OR OTHER RELIEF.

IT IS THE CONTENTION OF NORDBERG MANUFACTURING COMPANY THAT THE ORIGINAL SPECIFICATIONS WERE NOT SUFFICIENTLY CLEAR WITH RESPECT TO THE RESPONSIBILITY OF THE SUPPLY CONTRACTOR TO FURNISH ANCHOR BOLTS WITH THE " GROUP II-1ELECTRICAL GENERATING EQUIPMENT," AND THAT THE CLARIFICATION BY THE REVISED DRAWING INCLUDED IN ADDENDUM NO. 2 WAS NOT RECEIVED IN TIME TO AFFORD IT ADEQUATE OPPORTUNITY TO CORRECT ITS BID. IN SUPPORT OF THIS CONTENTION, THE COMPANY HAS ADVANCED THE FOLLOWING ARGUMENTS:

1. THE REQUIREMENT IN PARAGRAPH SC-5B (QUOTED ABOVE) THAT ANCHOR BOLTS WERE TO BE FURNISHED WITH "THE ABOVE LISTED EQUIPMENT ITEMS" WAS MISLEADING IN THAT IT APPEARED THIRTEEN PAGES AFTER THE DESCRIPTION OF STANDARDIZED EQUIPMENT IN PARAGRAPH SC-5A, AND ITS POSITION ON PAGE SC 17 IMMEDIATELY FOLLOWING THE LISTING OF " GROUP VIII-PUMPS" CAUSED THE COMPANY TO BELIEVE THAT ANCHOR BOLTS SHOULD BE FURNISHED BY THE SUPPLY CONTRACTOR ONLY ON THE GROUP VIII ITEMS.

2. WHILE THE LIST OF GROUP II-1ELECTRICAL GENERATING EQUIPMENT--- ITEMS AND ACCESSORIES ON PAGES SC-13 THROUGH SC-15 INCLUDES VARIOUS SMALL AND INEXPENSIVE ITEMS, IT DID NOT INCLUDE A REFERENCE TO THE RELATIVELY EXPENSIVE ANCHOR BOLTS. ADDITIONALLY, PARAGRAPH 48-03F OF THE TECHNICAL PROVISIONS, WHILE DESCRIBING THE ANCHOR BOLTS, DID NOT SPECIFY THAT THEY WERE TO BE FURNISHED BY THE SUPPLY CONTRACTOR.

3. THE COMPANY WAS MISLEAD BY THE NOTE ON THE ORIGINAL DRAWING 88-S 1 STATING THAT " ANCHOR BOLT DETAILS SHALL BE TAKEN FROM MANUFACTURER'S DRAWINGS. CONTRACTOR TO FURNISH," INTO BELIEVING THAT IT WOULD BE THE RESPONSIBILITY OF THE CONSTRUCTION CONTRACTOR TO FURNISH THE ANCHOR BOLTS.

4. THE INCLUSION BY REFERENCE OF CONSTRUCTION CONTRACT DRAWINGS AND TECHNICAL PROVISIONS FOR THE CONSTRUCTION CONTRACT IN THE SUPPLY INVITATION REQUIRED EVALUATION OF ELEVEN ADDENDA, MOSTLY IN A FEW DAYS IMMEDIATELY PRECEDING BID OPENING, IN PREPARING SUPPLY INVITATION BIDS. RECEIPT OF NINE NONRESPONSIVE BIDS, AND 37 ERRORS AND INFORMALITIES IN THE REMAINING 29 BIDS, INDICATE THE DIFFICULTIES IMPOSED ON BIDDERS BY THE SUPPLY INVITATION.

5. ADDENDUM NO. 2 DATED NOVEMBER 24, WHICH REVISED AND REISSUED DRAWING NO. 88-S-1 TO INCLUDE THE NOTE " CONTRACTOR TO FURNISH ALL ANCHOR BOLTS EXCEPT THOSE FURNISHED WITH STANDARDIZED EQUIPMENT," SHOULD HAVE CALLED THE ATTENTION OF BIDDERS TO THE CHANGE EFFECTED BY SUCH REVISED NOTE. SINCE THE ADDENDUM EFFECTED NUMEROUS CHANGES IN DRAWINGS AND WAS NOT RECEIVED UNTIL TWO DAYS BEFORE BID OPENING, IT WAS PHYSICALLY IMPOSSIBLE IN THE TIME AVAILABLE, TO MAKE A COMPARATIVE EVALUATION OF THE CHANGES ACCOMPLISHED BY THE ADDENDUM.

IMMEDIATELY UPON ITS DISCOVERY OF ITS OBLIGATION WITH RESPECT TO ANCHOR BOLTS, NORDBERG REQUESTED INCREASES TOTALING $104,832, REPRESENTING $2,184 FOR ANCHOR BOLTS ON EACH OF 48 GENERATORS, IN THE PRICES OF CONTRACTS DA- 25-066-ENG-5963 THROUGH 5968. IN SUPPORT OF ITS REQUEST FOR SUCH REFORMATION, THE COMPANY HAS SUBMITTED AN AFFIDAVIT FROM ITS CONTROLLER AND ITS SALES MANAGER STATING THAT FOUNDATION BOLTS WERE NOT INCLUDED IN THE NORDBERG BID FOR STANDARDIZED EQUIPMENT, TOGETHER WITH A PHOTOSTAT OF THE BACKUP WORKSHEET FOR ITS BID. THIS WORKSHEET CONTAINS NOTHING TO INDICATE THAT THE COST OF ANCHOR BOLTS WAS INCLUDED IN THE BID, BUT THERE DOES NOT APPEAR TO BE ANY WAY OF ASCERTAINING DEFINITELY FROM THE ENTRIES ON THE WORKSHEET WHETHER THE COST OF ANCHOR BOLTS WAS INCLUDED IN THE COST OF THE ENGINE WHICH IS SHOWN ON THE WORKSHEET EXCEPT A NOTATION "LESS FOUND RAILS AND BOLTS" APPEARING AFTER THE DESCRIPTION OF THE ENGINE ON THE WORKSHEET, WHICH WOULD APPEAR TO INDICATE THAT THE COST OF ANCHOR BOLTS WAS NOT INCLUDED.

THE COMPANY HAS ALSO SUBMITTED A COPY OF AN UNADDRESSED AND UNSIGNED LETTER DATED JANUARY 3, 1960, WITH THE ADVICE THAT COPIES THEREOF HAD BEEN HANDED TO VARIOUS UNIDENTIFIED BIDDERS ON THE CONSTRUCTION CONTRACT. THIS LETTER CALLED ATTENTION TO CERTAIN ITEMS AND SERVICES RELATED TO THE GENERATING EQUIPMENT, ADVISED BIDDERS THAT THE INVITATION REQUIRED THE CONSTRUCTION CONTRACTOR TO FURNISH SUCH ITEMS AND SERVICES, AND QUOTED PRICES ON SUCH ITEMS AND SERVICES IF THE CONSTRUCTION CONTRACTOR WISHED TO OBTAIN THEM FROM NORDBERG. THE THIRD ITEM OF THIS NATURE DESCRIBED IN THE LETTER WAS AS FOLLOWS:

3. THE SPECIFICATIONS CALL FOR FOUNDATION BOLTS TO BE SUPPLIED BY THE CONTRACTOR IN ACCORDANCE WITH THE REQUIREMENTS OF THE ENGINE BUILDER. THESE WILL BE SPECIAL BOLTS CONFORMING TO THE SHOCK REQUIREMENTS AND WILL BE PROVIDED WITH SLEEVES, WITH FREIGHT ALLOWED, AT A PRICE OF $2,184.00PER ENGINE.

AND UNDER DATE OF OCTOBER 12, 1960, NORDBERG FURNISHED TO THIS OFFICE A BREAKDOWN OF ITS COSTS AND PROFIT APPLICABLE TO THE FOUNDATION BOLTS AND ANCHORING DEVICES ON THE FIRST TWELVE GENERATING UNITS IT HAS COMPLETED UNDER ITS SUPPLY CONTRACTS. THESE FIGURES, WHICH INCLUDE ANTICIPATED COSTS OF $35,090.0O FOR REPLACING DEFECTIVE BOLTS, TOTAL $82,766.79, OR $1,724.30 PER UNIT. BASED UPON THESE FIGURES, NORDBERG HAS REDUCED ITS CLAIM TO $82,766.79.

THE REPORT OF THE CONTRACTING OFFICER IN THIS MATTER STATES THAT THE COST OF ANCHOR BOLTS (EXCLUDING REPLACEMENT COSTS) WAS ESTIMATED BY YOUR DEPARTMENT AT $20,430, AND POINTS OUT THAT THIS AMOUNT, WHEN COMPARED TO THE TOTAL BID PRICE OF $4,576,644 AND A SECOND LOW BID OF $5,109,433, WAS NOT SUFFICIENT TO CHARGE THE CONTRACTING OFFICER WITH NOTICE OF ERROR PRIOR TO AWARD. ACCORDINGLY, WHILE THE CONTRACTING OFFICER IS OF THE OPINION THAT THERE IS "GOOD" EVIDENCE TO ESTABLISH THAT NORDBERG DID IN FACT OMIT THE COST OF ANCHOR BOLTS FROM ITS BID, IT IS ALSO HIS OPINION THAT THE INVITATION CLEARLY CALLED FOR BIDDERS TO INCLUDE THE ANCHOR BOLTS, NOT ONLY UNDER PARAGRAPH SC-5B BUT ALSO BY THE NOTE ON CONTRACT DRAWING NO. 88-S-1 AS REVISED BY ADDENDUM NO. 2. IT IS THEREFORE HIS RECOMMENDATION, CONCURRED IN BY YOUR GENERAL COUNSEL, THAT THE REQUEST FOR REFORMATION OF THE CONTRACTS BE DENIED. WITH RESPECT TO THE VARIOUS PROVISIONS OF THE SPECIAL CONDITIONS AND TECHNICAL PROVISIONS, WE BELIEVE IT IS REASONABLE TO CONCLUDE THAT PARAGRAPHS SC-5A THROUGH 5D, SC-45A THROUGH 45C, AND PARAGRAPH 48-03F OF THE TECHNICAL PROVISIONS MADE IT THE RESPONSIBILITY OF THE SUPPLY CONTRACTOR TO FURNISH ANCHOR BOLT AND HOLD- DOWN DEVICES WITH ALL ITEMS OF STANDARDIZED EQUIPMENT. THE FACT THAT SUBPARAGRAPH SC-5A TOOK UP THIRTEEN PAGES DOES NOT RENDER SUBPARAGRAPH SC- 5B ANY THE LESS APPLICABLE TO ALL ITEMS LISTED IN SC-5A, AND WE FIND NO REASONABLE JUSTIFICATION FOR NORDBERG'S CONCLUSION THAT SC-5B APPLIED ONLY TO THE LAST GROUP IMMEDIATELY PRECEDING IT. WHILE THE STATEMENT THAT THE "CONTRACTOR" WAS TO FURNISH ANCHOR BOLTS, WHICH APPEARED IN GENERAL NOTE NO. 1 TO THE ORIGINAL CONTRACT DRAWING NO. 88-S-1, MIGHT, STANDING ALONE, HAVE BEEN READ AS INDICATING THAT THE CONSTRUCTION CONTRACTOR WAS TO FURNISH ANCHOR BOLTS FOR ALL EQUIPMENT, STANDARDIZED OR NONSTANDARDIZED, SHOWN ON THE DRAWING, WE DO NOT BELIEVE THAT SUCH AN INTERPRETATION WAS JUSTIFIED IN VIEW OF THE FACT THAT THE TECHNICAL CONDITIONS, OF WHICH THE DRAWINGS WERE A PART, WERE COMMON TO BOTH INVITATIONS AND DID NOT PURPORT TO FIX THE RESPECTIVE RESPONSIBILITIES OF THE CONSTRUCTION CONTRACTOR AND THE SUPPLY CONTRACTOR. IN ANY EVENT, THE REVISED NOTE ON DRAWING NO. 88-S -1 AS REISSUED BY ADDENDUM NO. 2 WAS OBVIOUSLY INTENDED TO, AND DID, CORRECT ANY AMBIGUITY OR INCONSISTENCY WHICH MIGHT HAVE PREVIOUSLY EXISTED.

EVEN ASSUMING THAT THE ORIGINAL DRAWING CREATED AN AMBIGUITY, WE ARE OF THE OPINION THAT NEITHER THE FORM IN WHICH ADDENDUM NO. 2 WAS ISSUED NOR THE LATENESS OF ITS RECEIPT BY NORDBERG MAY BE REGARDED AS AFFECTING THE VALIDITY OR EFFECTIVENESS OF THE CONTRACT. CONCERNING THE FORM OF ADDENDUM NO. 2, IT CANNOT BE DISPUTED THAT ADDITIONAL EXPLANATION IN THIS ADDENDUM OF THE CHANGES EFFECTED BY EACH REVISED DRAWING WOULD HAVE BEEN HELPFUL TO BIDDERS IN EVALUATING SUCH CHANGES. HOWEVER, WE ARE AWARE OF NO BASIS UPON WHICH THE CONTRACTING AGENCY CAN BE CHARGED WITH THE DUTY OF FURNISHING BIDDERS WITH SUCH EXPLANATION. PARAGRAPH B (2) (H) OF ADDENDUM NO. 2 ADVISED BIDDERS THAT REVISIONS HAD BEEN MADE IN DRAWING 88-S-1, AND NO MORE THAN A CURSORY COMPARISON OF THE ORIGINAL DRAWING WITH THE REVISED DRAWING SHOULD HAVE BEEN REQUIRED TO DETECT THE DELETION OF GENERAL NOTE NO. 1 ON THE ORIGINAL DRAWING AND THE SUBSTITUTION OF NOTE NO. 5 ON THE REVISED DRAWING.

AS INDICATED ABOVE, IT IS OUR OPINION THAT THE SPECIAL CONDITIONS AND TECHNICAL PROVISIONS OF THE INVITATION CLEARLY REQUIRED THE SUPPLY CONTRACTORS TO FURNISH ANCHOR BOLTS ON STANDARDIZED EQUIPMENT, AND ANY CONFLICT BETWEEN SUCH PROVISIONS AND THE GENERAL NOTES ON DRAWING 88-S 1 WAS REMOVED BY THE NOTES ON THE DRAWING AS REVISED AND REISSUED BY ADDENDUM NO. 2, RECEIPT OF WHICH WAS ACKNOWLEDGED BY NORDBERG'S BID. THE FAILURE OF NORDBERG TO INCLUDE AN ALLOWANCE FOR ANCHOR BOLTS IN ITS BID WAS A WHOLLY UNILATERAL MISTAKE, AND THE RECORD AFFORDS NO BASIS FOR CHARGING THE CONTRACTING OFFICER WITH NOTICE THEREOF. IN SUCH CIRCUMSTANCES, REFORMATION OF THE CONTRACT IS OBVIOUSLY IMPOSSIBLE, SINCE REFORMATION CAN BE PERMITTED ONLY TO CORRECT A MISSTATEMENT IN THE CONTRACT OF THE ACTUAL TERMS AGREED UPON BETWEEN THE PARTIES.

SINCE THERE WAS NOTHING IN THE CIRCUMSTANCES OF THE BID TO PUT THE CONTRACTING OFFICER ON NOTICE OF POSSIBLE ERROR, AND NORDBERG--- ALTHOUGH IT HAD APPROXIMATELY SIXTEEN DAYS BETWEEN BID OPENING AND CONTRACT AWARD TO DISCOVER ITS ERROR--- FAILED TO GIVE ANY NOTICE OF ERROR PRIOR TO THE AWARD, WE MUST CONCLUDE THAT THE AWARD CONSUMMATED A BINDING CONTRACT CLEARLY OBLIGATING IT TO FURNISH THE ANCHOR BOLTS. IN THIS SITUATION THERE IS NO BASIS FOR ANY RELIEF TO THE CONTRACTOR OR FOR PAYMENT OF ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE. SEE MASSMAN CONSTRUCTION CO. V. UNITED STATES, 102 CT. CL. 699, BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., 135 F.2D 399.

THE ENCLOSURES RECEIVED WITH THE LETTER DATED AUGUST 4, 1960, FROM THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS ARE RETURNED.