B-189972, FEB 8, 1978

B-189972, FEB 8, 1978

1. CLAIM OF MISTAKE IN BID AFTER AWARD IS NOT PRECLUDED BY BIDDER'S PRIOR ATTEMPT TO RECOVER UNDER DEFECTIVE SPECIFICATIONS CLAIM BEFORE CONTRACTING AGENCY BOARD OF CONTRACT APPEALS BASED UPON THE SAME FACTS SINCE BOARD DOES NOT HAVE JURISDICTION OVER CLAIM OF MISTAKE IN BID AND MISTAKE IN BID CLAIM AND DEFECTIVE SPECIFICATIONS CLAIM CAN BE VIEWED AS MUTUALLY EXCLUSIVE. 2. CONTRACT CANNOT BE REFORMED SINCE CLAIMANT HAS NOT PROVED THAT BID WAS BASED UPON MISTAKEN BELIEF THAT WINDOW CLOSURES REQUIRED TO BE FABRICATED WERE OF SAME DIMENSION. EVEN IF CLAIMANT COULD PROVE MISTAKE, CONTRACT COULD NOT BE REFORMED SINCE CONTRACTING OFFICER WAS NOT ON CONTRUCTIVE NOTICE OF "MISTAKE" WHERE WIDE RANGE EXISTED BETWEEN BIDS SUBMITTED, INDICATING NO UNIFORMITY OR CONSISTENCY, AND WHERE CONTRACTING OFFICER COULD REASONABLY RELY ON GOVERNMENT'S REVISED ESTIMATE.

BROMLEY CONTRACTING CO., INC.:

BROMLEY CONTRACTING CO., INC. (BROMLEY), HAS FILED A CLAIM ALLEGING A MISTAKE IN BID AFTER CONTRACT AWARD. BROMLEY WAS AWARDED GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT NO. GS-00B-01656 FOR THE REMOVAL OF EXISTING WINDOW CLOSURES FROM WINDOWS ON THE OLD POST OFFICE BUILDING IN WASHINGTON, D. C., AND THE FABRICATION AND INSTALLATION OF NEW WINDOW CLOSURES. BIDS FROM THREE BIDDERS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AS FOLLOWS: BROMLEY - $48,434; CECIL PRUITT, INC. $72,200; AND GARY CONSTRUCTION COMPANY, INC. - $86,900. GSA'S PREBIDDING ESTIMATE WAS $33,450 AND ITS REVISED ESTIMATE AFTER BID OPENING WAS $44,800. GSA DID NOT VERIFY BROMLEY'S BID.

DURING THE COURSE OF PERFORMING THE CONTRACT BROMLEY ENCOUNTERED WHAT IT CONSIDERED CHANGED CONDITIONS DUE TO DEFECTIVE SPECIFICATIONS IN THE SOLICITATION AND FILED A CLAIM WITH THE CONTRACTING OFFICER (C.O.). BROMLEY CLAIMED THAT THE DRAWINGS CONTAINED IN THE SOLICITATION DID NOT REFLECT THAT THE DIMENSIONS OF THE WINDOWS IN THE OLD POST OFFICE BUILDING WERE OF VARYING DIMENSIONS. AFTER THE C.O. DENIED BROMLEY'S CLAIM BROMLEY FILED AN APPEAL WITH THE GSA BOARD OF CONTRACT APPEALS (GSBCA). GSBCA DENIED BROMLEY'S CLAIM OF DEFECTIVE SPECIFICATIONS ON JUNE 30, 1975, AND AFFIRMED ITS DECISION ON FEBRUARY 6, 1976. BROMLEY CONTRACTING CO., INC., GSBCA 4224, 75-2 BCA 11364, AFF'D GSBCA 4224-R, 76-1 BCA 11734. GSBCA HELD THAT THE SOLICITATION DID NOT CONTAIN DEFECTIVE SPECIFICATIONS SINCE THERE WAS NO REPRESENTATION OF DIMENSIONS, ONLY A SCALE DRAWING, AND BECAUSE A NOTE ON THE DRAWING REQUIRED THE CONTRACTOR TO VERIFY ALL THE WINDOW DIMENSIONS. BROMLEY THEN FILED A CLAIM WITH OUR OFFICE ALLEGING A MISTAKE IN ITS BID.

DECISIONS ON DISPUTES RENDERED BY THE BOARDS OF CONTRACT APPEALS UNDER THE DISPUTES CLAUSE ARE FINAL AND CONCLUSIVE AND NOT SUBJECT TO REVIEW BY OUR OFFICE ABSENT FRAUD OR BAD FAITH. S & E CONTRACTORS, INC. V. UNITED STATES, 406 U.S. 1 (1972); 52 COMP.GEN. 63 (1972). HOWEVER, OUR OFFICE IS NOT PRECLUDED FROM CONSIDERING BROMLEY'S CLAIM OF MISTAKE BECAUSE OF BROMLEY'S ATTEMPT TO RECOVER UNDER A CONSTRUCTIVE CHANGE THEORY BEFORE GSBCA INASMUCH AS GSBCA WOULD NOT HAVE HAD JURISDICTION OVER A CLAIM OF MISTAKE IN BID. MARTIN W. JUSTER, B-181797, MAY 15, 1975, 75-1 CPD 297; NATIONAL LINE COMPANY, INC., ASBCA 18739, 75-2 BCA 11400, AND DECISIONS CITED THEREIN; STAINLESS PIPING SUPPLY COMPANY, B-184780, DECEMBER 23, 1975, 75-2 CPD 407.

GSA IN A REPORT TO OUR OFFICE STATES THAT BROMLEY IS "MERELY RESTYLING ITS DEFECTIVE SPECIFICATIONS CLAIM AS A MISTAKE IN BID CLAIM FOR PURPOSES OF GAINING ANOTHER HEARING IN ANOTHER FORUM ***." GSA FURTHER STATES THAT "*** BROMLEY HAD NEVER CONSIDERED THAT IT HAD MADE A MISTAKE IN BID, BUT THAT IT PLANNED TO AND DID ASSERT A CLAIM PREDICATED ON DEFECTIVE SPECIFICATIONS." IN THIS REGARD GSA NOTES THAT BROMLEY'S SUBMISSION TO OUR OFFICE STATING "THIS BID WAS THE RESULT OF BROMLEY'S REASONABLE INTERPRETATION OF THE BID DOCUMENTS AND THE DRAWINGS AND SPECIFICATIONS" IS THE SAME ARGUMENT THAT BROMLEY USED BEFORE GSBCA AND THAT GSBCA SPECIFICALLY FOUND THAT BROMLEY'S READING OF THE CONTRACT DOCUMENTS WAS NOT REASONABLE. GSA FURTHER APPEARS TO ARGUE THAT GSBCA'S HOLDING THAT BROMLEY "NEITHER INTENDED TO NOR DID VERIFY AND DIMENSIONS OF THE EXISTING WINDOW CLOSURES" PRECLUDES A CLAIM OF MISTAKE BY BROMLEY.

WE FAIL TO SEE HOW BROMLEY IS PRECLUDED FROM ASSERTING A CLAIM OF MISTAKE BY THE MERE FACT OF PURSUING A CLAIM OF DEFECTIVE SPECIFICATIONS BEFORE GSBCA OR BY GSBCA'S HOLDING THAT BROMLEY "NEITHER INTENDED TO NOR DID VERIFY ANY DIMENSIONS OF THE EXISTING WINDOW CLOSURES." WHILE THE FACTS UPON WHICH BROMLEY BASES ITS CLAIM OF MISTAKE ARE THE SAME AS THOSE UPON WHICH BROMLEY BASED ITS CLAIM OF DEFECTIVE SPECIFICATIONS BEFORE GSBCA, A CLAIM OF MISTAKE AND A CLAIM OF DEFECTIVE SPECIFICATIONS CAN BE VIEWED AS MUTUALLY EXCLUSIVE. A BIDDER MAY HAVE A CLAIM OF MISTAKE WHERE ITS BID IS BASED UPON AN UNREASONABLE INTERPRETATION OF UNAMBIGUOUS SPECIFICATIONS IF THE BID IS BASED UPON A MISTAKEN BELIEF AS TO WHAT THE SPECIFICATIONS CALLED FOR. ALTHOUGH A CLAIM FOR DEFECTIVE SPECIFICATIONS BASED UPON THE ABOVE FACTS MIGHT FAIL, A CLAIM BASED UPON MISTAKE MIGHT NOT. FURTHERMORE, THE FACT THAT BROMLEY "NEITHER INTENDED TO NOR DID VERIFY" THE WINDOW DIMENSIONS DOES NOT PROVE THAT BROMLEY DID NOT BASE ITS BID ON THE MISTAKEN BELIEF THAT ALL THE WINDOWS WERE THE SAME SIZE BUT MERELY EVIDENCES THAT BROMLEY MAY NOT HAVE COMMITTED A MISTAKE.

BROMLEY HAS NOT PRESENTED CONCLUSIVE EVIDENCE, SUPPORTED BY WORKPAPERS OR OTHER DOCUMENTATION, THAT ITS BID WAS BASED ON THE MISTAKEN BELIEF THAT ALL THE WINDOWS WERE OF THE SAME DIMENSIONS. WITHOUT SUCH EVIDENCE A CLAIM OF MISTAKE CANNOT SUCCEED.

WE RECOGNIZE, HOWEVER, THAT AN ARGUMENT CAN BE MADE THAT A BID BASED ON A MISTAKEN INTERPRETATION OF SPECIFICATIONS COULD BE VIEWED AS ONE FOUNDED ON MISTAKE. EVEN IF BROMLEY COULD PROVE ITS "MISTAKE," HOWEVER, WE DO NOT BELIEVE THAT GSA HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THAT "MISTAKE" TO PERMIT THE RELIEF REQUESTED.

WHEN A MISTAKE IS ALLEGED AFTER AWARD OF A CONTRACT, OUR OFFICE WILL GRANT RELIEF ONLY IF THE MISTAKE WAS MUTUAL OR THE C.O. WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF A UNILATERAL ERROR PRIOR TO AWARD. NO VALID AND BINDING CONTRACT IS CONSUMMATED WHERE THE C.O. KNEW OR SHOULD HAVE KNOWN OF THE PROBABILITY OF ERROR, BUT FAILED TO TAKE PROPER STEPS TO VERIFY THE BID. IN DETERMINING WHETHER A C.O. HAS THE DUTY TO VERIFY BID PRICES, WE HAVE STATED THAT THE TEST IS WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE THERE WERE ANY FACTORS WHICH REASONABLY SHOULD HAVE RAISED THE PRESUMPTION OF AN ERROR IN THE MIND OF THE C.O., WITHOUT MAKING IT NECESSARY FOR THE C.O. TO ASSUME THE BURDEN OF EXAMINING EVERY BID FOR POSSIBLE ERROR. E.I. DUPONT DENEMOURS AND COMPANY, INC., B-188620, JUNE 2, 1977, 77-1 CPD 388; R. E. LEE ELECTRIC CO. INC., B-184249, NOVEMBER 14, 1975, 75-2 CPD 305, AND CASES CITED THEREIN.

THE RECORD IN THE INSTANT CASE SHOWS NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE OF BROMLEY'S ALLEGED MISTAKE ON THE PART OF THE C.O. IN VIEW OF THE WIDE RANGE BETWEEN ALL THE BIDS SUBMITTED, INDICATING NO UNIFORMITY OR CONSISTENCY, WE DO NOT BELIEVE THAT THE C.O. ACTED UNREASONABLY IN RELYING ON THE GOVERNMENT'S REVISED ESTIMATE AND FAILING TO VERIFY BROMLEY'S BID. SEE B-155389, OCTOBER 28, 1964.

BROMLEY APPEARS TO ARGUE THAT GSA WAS REQUIRED TO VERIFY ITS BID SINCE GSA IN THE PAST HAD VERIFIED BROMLEY'S BID WHEN THERE WAS ONLY A 20- TO 25 -PERCENT DISCREPANCY BETWEEN ITS LOW BID AND THE NEXT TWO LOW BIDS AND WHEN ITS BID WAS HIGHER THAN GSA'S ESTIMATE. COMPARISONS OF INSTANCES IN WHICH THE GOVERNMENT VERIFIES BIDS AND WHEN IT DOES NOT ARE NOT USEFUL WHEN SUCH INSTANCES WERE NOT SUBJECT TO ANY LEGAL OR ADMINISTRATIVE DETERMINATIONS AND WHERE THERE IS NO WRITTEN RECORD UPON WHICH TO COMPARE THE CIRCUMSTANCES. AS WE STATED IN UNITED MINERAL & CHEMICAL CORPORATION, B-183756, JULY 8, 1975, 75-2 CPD 20:

"THE TEST IS ONE OF REASONABLENESS, WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF THE PARTICULAR CASE THERE WERE FACTORS WHICH REASONABLY COULD HAVE RAISED THE PRESUMPTION OF ERROR IN THE MIND OF THE CONTRACTING OFFICER.

IN VIEW OF THE ABOVE, WE CANNOT HOLD THAT GSA ACTED UNREASONABLY IN FAILING TO VERIFY BROMLEY'S BID.

GSA HAS ALSO MAINTAINED THAT BROMLEY IS PRECLUDED FROM ASSERTING A MISTAKE IN BID CLAIM BECAUSE BROMLEY EXECUTED A RELEASE OF ALL CLAIMS AGAINST THE GOVERNMENT "ARISING UNDER OR BY VIRTUE OF" THE SUBJECT CONTRACT. IN VIEW OF THE FACT THAT BROMLEY'S CLAIM IS HEREIN DENIED WE NEED NOT CONSIDER THE EFFECT OF SUCH A RELEASE.

ACCORDINGLY, THE CONTRACT CANNOT BE REFORMED.