B-155345, JAN. 6, 1965

B-155345, JAN. 6, 1965

TO TURNER MURPHY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 5, 1964, WITH ENCLOSURES, IN WHICH YOU ALLEGE THAT AN ERROR WAS MADE IN YOUR BID ON WHICH CONTRACT NO. DA-09-133-ENG-5186 IS BASED.

THE U.S. ARMY ENGINEER DISTRICT, SAVANNAH, CORPS OF ENGINEERS, SAVANNAH, GEORGIA, BY INVITATION NO. ENG-09-133-64-30 REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND TO PERFORM ALL THE WORK FOR THE CONSTRUCTION OF COMMUNICATIONS AND ELECTRONIC SHOP ALTERATIONS TO BUILDING 645, ROBINS AIR FORCE BASE, HOUSTON COUNTY, GEORGIA. IN RESPONSE YOUR FIRM SUBMITTED A BID OFFERING TO PERFORM THE WORK FOR THE AGGREGATE AMOUNT OF $140,740. MARCH 24, 1964, ON THE BID OF YOUR FIRM WAS ACCEPTED.

BY LETTER DATED APRIL 3, 1964, YOU ADVISED THE CONTRACTING OFFICER THAT IN THE PREPARATION OF YOUR BID YOUR FIRM HAD MADE A MISTAKE IN THE AMOUNT OF $11,500. YOU STATED THAT IN TOTALLING ON AN ADDING MACHINE THE AMOUNTS LISTED FOR MATERIALS ON YOUR ESTIMATE SHEETS, THE AMOUNT OF $11,500 APPEARING AT THE TOP OF SHEET NO. 11, WHICH COVERED THE PRICE OF THE STEAM CONDUIT SPECIFIED FOR THE JOB, WAS INADVERTENTLY OMITTED. YOU REQUESTED THAT THE CONTRACT PRICE OF THE PROJECT BE INCREASED BY THAT AMOUNT PLUS 20 PERCENT GROSS MARGIN OR A TOTAL INCREASE OF $13,800.

IN A LETTER DATED OCTOBER 5, 1964, ADDRESSED TO OUR OFFICE, YOU REQUESTED THAT THE CONTRACT PRICE OF THE PROJECT BE INCREASED TO COVER THE COST OF THE OMITTED STEAM CONDUIT. IN SUPPORT OF YOUR ALLEGATION OF ERROR, YOU SUBMITTED YOUR ESTIMATE SHEETS, A QUOTATION ON THE STEAM CONDUIT WHICH YOU RECEIVED FROM YOUR SUPPLIER AND THE ADDING MACHINE TABLE ON WHICH, YOU ALLEGE, YOU FAILED TO SHOW THE AMOUNT OF $11,500 TO COVER THE COST OF THE STEAM CONDUIT.

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE BID BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY ITS ACCEPTANCE. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN YOUR BID. THE ABSTRACT OF BIDS SHOWS THAT THE THREE OTHER BIDS WERE IN THE AMOUNTS OF $162,000, $187,554, AND $204,500. THE GOVERNMENT ESTIMATE WAS IN THE AMOUNT OF $172,314. IN VIEW OF THE WIDE RANGE OF THE BIDS RECEIVED, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID. ALTHOUGH, AFTER AWARD, YOU FURNISHED YOUR WORKSHEETS AND THE QUOTATION OF YOUR SUPPLIER, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY YOU IN COMPUTING YOUR BID PRICE. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED BY YOU UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. WHILE IT MAY BE THAT AN ERROR WAS MADE IN YOUR BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS NOT IN ANY WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE WAS UNILATERAL- -NOT MUTUAL-- AND, THEREFORE, DOES NOT ENTITLE YOU TO RELIEF. SEE 20 COMP. GEN. 652 AND 26 ID. 415.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICE FOR THE WORK IN QUESTION, AS REQUESTED.