B-143706, MAY 2, 1961

B-143706, MAY 2, 1961

TO CUMMINGS AND SELLERS:

WE HAVE YOUR LETTER DATED MARCH 14, 1961, AND SUPPORTING DOCUMENTS SUBMITTED ON MARCH 24, 1961, REQUESTING ON BEHALF OF YOUR CLIENT, THE NORDBERG MANUFACTURING COMPANY, MILWAUKEE, WISCONSIN, RECONSIDERATION OF OUR DECISION B-143706, DECEMBER 2, 1960, WHICH DENIED REFORMATION OF CONTRACTS NOS. DA-25-066-ENG-5963 THROUGH 5968.

THE REQUEST FOR REFORMATION OF THE CONTRACTS IN QUESTION AROSE OUT OF A MISTAKE ALLEGEDLY MADE BY THE NORDBERG MANUFACTURING COMPANY IN FAILING TO INCLUDE THE COST OF ANCHOR BOLT AND HOLDDOWN DEVICES IN ITS BID TO FURNISH ELECTRICAL GENERATING EQUIPMENT, GROUP II, SPECIFIED IN SCHEDULE E OF INVITATION FOR BIDS NO. ENG-25-066-60-35, AND THE FAILURE OF NORDBERG TO NOTICE THE MISTAKE PRIOR TO AWARD OF THE CONTRACTS CITED ABOVE.

ALTHOUGH THE DECISION OF DECEMBER 2, 1960, FULLY STATES THE FACTS INVOLVED IN THE CASE, IT MIGHT PROVE HELPFUL TO SUMMARIZE SOME OF THE PERTINENT FACTS HERE BEFORE DISCUSSING THE MERITS OF YOUR CONTENTIONS. INVITATION FOR BIDS NO. ENG-25-066-60-35 (HEREINAFTER REFERRED TO AS THE ,SUPPLY INVITATION") WAS ISSUED ON OCTOBER 20, 1959, AND SOLICITED BIDS FOR THE FURNISHING OF STANDARDIZED EQUIPMENT, WS-107 A-2, TECHNICAL FACILITIES, COMPLEX 1A, 1B AND 1C, ELLSWORTH AIR FORCE BASE, SOUTH DAKOTA, AND OTHER LOCATIONS. INVITATION FOR BIDS NO. ENG-25-066 60-1 (HEREINAFTER REFERRED TO AS THE "CONSTRUCTION INVITATION") WAS ISSUED ON THE SAME DATE, UNDER THE SAME COVER, AND REQUESTED BIDS FOR FURNISHING ALL PLANT, LABOR, MATERIALS AND EQUIPMENT, EXCEPT STANDARDIZED EQUIPMENT, AND PERFORMING ALL WORK, INCLUDING THE INSTALLATION OF STANDARDIZED EQUIPMENT, FOR CONSTRUCTION OF WS-107 A-2 TECHNICAL FACILITIES AT ELLSWORTH AIR FORCE BASE, RAPID CITY, SOUTH DAKOTA.

THE SUPPLY INVITATION (PARAGRAPH SC-6) 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. PAGE TC-1 OF THE SUPPLY INVITATION SPECIFICALLY PROVIDED THAT THE TECHNICAL PROVISIONS INCLUDED IN THE CONSTRUCTION INVITATION WOULD FORM A PART OF THE SUPPLY SPECIFICATIONS. PARAGRAPH 8, PAGE 21, OF THE SUPPLY INVITATION FURTHER ADVISED BIDDERS THAT THE TECHNICAL PROVISIONS AND THE ACCOMPANYING DRAWINGS OF THE CONSTRUCTION INVITATION ALSO COVERED THE DETAILED REQUIREMENTS FOR THE EQUIPMENT AND SERVICES LISTED IN THE SCHEDULE OF EQUIPMENT ITEMS. THE SCHEDULE OF EQUIPMENT ITEMS ACCOMPANIED THE SUPPLY INVITATION AND DESCRIBED THE ITEMS OF EQUIPMENT ON WHICH SUPPLY CONTRACT BIDS WERE TO BE SUBMITTED.

PARAGRAPH SC-5 OF THE SUPPLY INVITATION, ENTITLED "STANDARDIZED EQUIPMENT," CONSISTED OF FOUR SUBPARAGRAPHS, A, B, C AND D. SUBPARAGRAPH A QUOTED IN FULL IN OUR DECISION OF DECEMBER 2, 1960, WAS ESSENTIALLY A DESCRIPTIVE CLAUSE WHICH SERVED, IN PART, AS AN INTRODUCTION TO A LISTING OF STANDARDIZED EQUIPMENT DIVIDED INTO NINE CATEGORY SCHEDULES WHICH WERE IDENTIFIED AS SCHEDULES A THROUGH J. FOLLOWING SUBPARAGRAPH A IS A 13-PAGE LISTING OF THE STANDARDIZED EQUIPMENT. SCHEDULE E, WHICH COVERS THE GENERATOR ITEMS AWARDED TO NORDBERG, APPEARED AT PAGES SC-13 THROUGH SC- 15. SCHEDULE E LISTED SEVERAL ITEMS OF ACCESSORIES TO THE GENERATORS, BUT MADE NO REFERENCE TO ANCHOR OR FOUNDATION BOLTS.

SUBPARAGRAPH B OF PARAGRAPH SC-5 APPEARED ON THE LAST PAGE (SC-17) OF THE "STANDARDIZED EQUIPMENT LISTING," IMMEDIATELY FOLLOWING THE LISTING OF THE LAST SCHEDULE OF "STANDARDIZED EQUIPMENT," ENTITLED "GROUP VIII--- PUMPS," AND READS AS FOLLOWS:

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

SUBPARAGRAPHS SC-5C AND SC-5D APPEARED ON THE FOLLOWING PAGE OF THE INVITATION. SUBPARAGRAPH SC-5C IS NOT RELEVANT TO THE ISSUES BEFORE US AND NEED NOT BE QUOTED. HOWEVER, SC-5D READS AS FOLLOWS:

"D. THE CONTRACTOR SHALL ADVISE ALL PROSPECTIVE SUPPLIERS FROM WHOM HE IS SOLICITING PRICE QUOTATIONS OF THE INFORMATION CONTAINED IN SUBPARAGRAPH B ABOVE AND SHALL REQUIRE HIS SUBCONTRACTORS, INCLUDING LOWER TIER SUBCONTRACTORS, FURNISHING EQUIPMENT UNDER THIS CONTRACT, TO GIVE LIKE NOTICE TO THEIR SUPPLIERS.'

SECTION 48 OF THE TECHNICAL PROVISIONS, WHICH WERE COMMON TO THE TWO INVITATIONS (SEE PARAGRAPH 8, PAGE 21, AND PAGE TC-1 OF THE SUPPLY INVITATION), 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 PROVIDED GENERALLY (SEE THE DECISION OF DECEMBER 2, 1960, FOR THE COMPLETE LANGUAGE OF THE PARAGRAPH) UNDER CLAUSES A, B AND C THEREOF THAT STANDARDIZED EQUIPMENT WOULD BE PROCURED UNDER THE SUPPLY INVITATION AND WOULD BE FURNISHED TO THE CONSTRUCTION CONTRACTOR BY ASSIGNMENT OF CONTRACT AND THAT,"WHERE APPLICABLE, ALL ITEMS OF STANDARDIZED EQUIPMENT WILL BE FURNISHED WITH ALL NECESSARY HOLDDOWN DEVICES, ANCHOR BOLTS AND INTEGRAL SHOCK MOUNTING DEVICES COMPATIBLE WITH THE STRUCTURAL FEATURES AND DIMENSIONS AT THE LOCATION OF ATTACHMENT.'

CONTRACT DRAWING NO. 88-S-1, SHEET 620, ENTITLED "POWERHOUSE GENERATOR FOUNDATION," AND MARKED WITH THE CONSTRUCTION INVITATION NUMBER, 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 DWGS.'

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

"5. CONTRACTOR TO FURNISH ALL ANCHOR BOLTS EXCEPT THOSE FURNISHED WITH STANDARDIZED UIPMENT.'

IN OUR DECISION OF DECEMBER 2, 1960, WE HELD THAT IT WAS REASONABLE TO CONCLUDE THAT PARAGRAPH 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 HOLDDOWN DEVICES WITH ALL ITEMS OF STANDARDIZED EQUIPMENT, AND THAT THE FAILURE OF NORDBERG TO INCLUDE AN ALLOWANCE FOR ANCHOR BOLTS IN ITS BID WAS A WHOLLY UNILATERAL MISTAKE OF WHICH THE CONTRACTING OFFICER WAS NOT CHARGEABLE WITH NOTICE. IT WAS CONCLUDED THAT UNDER SUCH CIRCUMSTANCES REFORMATION OF THE CONTRACT WAS OBVIOUSLY IMPOSSIBLE, SINCE REFORMATION COULD BE PERMITTED ONLY TO CORRECT A MISSTATEMENT IN THE CONTRACT OF THE ACTUAL TERMS AGREED UPON BETWEEN THE PARTIES.

YOUR LETTER OF MARCH 14, 1961, REQUESTS RECONSIDERATION OF THE DECISION ON THE BASIS THAT IT REACHED THE WRONG RESULT BECAUSE IT DID NOT ADEQUATELY TAKE INTO ACCOUNT ALL OF THE PERTINENT FACTS. SPECIFICALLY YOU STATE THAT PARAGRAPH SC-5 OF THE SUPPLY INVITATION WAS DRAWN BY THE GOVERNMENT IN SUCH A WAY THAT A REASONABLY DILIGENT BIDDER WOULD BE MISLED BY ITS PROVISIONS AND NOT BE AWARE THAT THE ANCHOR BOLTS WERE TO BE FURNISHED WITH THE GROUP II GENERATORS AND THAT THIS WAS PRECISELY WHAT HAPPENED TO NORDBERG. IN THAT CONNECTION YOU STATE THAT FOLLOWING THE GENERATORS THEMSELVES IS A LISTING, APPROXIMATELY TWO PAGES LONG, OF ITEMS DESCRIBED AS ,STANDARDIZED ACCESSORIES" FOR THE GENERATORS; THAT THESE LISTED ACCESSORIES RUN THE GAMUT FROM SILENCERS, SUPERCHARGERS AND LUBE OIL PUMPS THROUGH INSTRUMENT BOARDS, ACCESS LADDERS AND CATWALKS TO VOLTAGE REGULATORS, DISCHARGE RESISTORS AND PROTECTIVE GUARDS; THAT NOWHERE IS THERE ANY MENTION OF ANCHOR BOLTS; AND THAT A MORE REASONABLE WAY OF INDICATING THE GOVERNMENT'S DECLARED INTENTION WITH REGARD TO ANCHOR BOLTS WOULD BE TO PUT THE SHORT SENTENCE ABOUT THE ANCHOR BOLTS UNDER EACH OF THE GROUPS, I THROUGH VIII, OR AT LEAST UNDER THOSE OF THEM TO WHICH IT IS APPLICABLE.

YOU FURTHER STATE THAT PARAGRAPH 48-03F OF THE TECHNICAL PROVISIONS, WHERE THE ANCHOR BOLTS ARE DESCRIBED, DOES NOT SPECIFY THAT THEY ARE TO BE SUPPLIED BY THE SUPPLY CONTRACTOR; THAT THE TECHNICAL PROVISIONS ARE COMMON TO THE TWO INVITATIONS AND LIST EVERYTHING REQUIRED IN THE ENTIRE PROJECT AND MAKE NO DISTINCTION BETWEEN THE ITEMS TO BE SUPPLIED UNDER CONSTRUCTION CONTRACTS AND THOSE REQUIRED UNDER SUPPLY CONTRACTS; THAT JUDGING FROM THE LANGUAGE APPEARING IN OUR DECISION OF DECEMBER 2, 1960, IT IS IN PART THE LANGUAGE OF THE TECHNICAL PROVISIONS JUST REFERRED TO, UPON WHICH THE HOLDING IS BASED THAT "THE INVITATION CLEARLY REQUIRED THE SUPPLY CONTRACTORS TO FURNISH ANCHOR BOLTS ON STANDARDIZED EQUIPMENT.' YOU CONTEND THAT THE TECHNICAL PROVISIONS MUST BE ENTIRELY DISREGARDED IN REACHING A PROPER DECISION IN THIS MATTER. ON THE OTHER HAND, HOWEVER, YOU ALLEGE THAT THE ORIGINAL DRAWING AND ITS NOTE ARE RELEVANT BECAUSE IT IS MARKED WITH THE CONSTRUCTION INVITATION NUMBER.

MUCH THE SAME CONTENTION IS MADE WITH REGARD TO THE PROVISIONS OF PARAGRAPH SC-45 OF THE SPECIAL CONDITIONS AS GIVING BIDDERS NOTICE THAT THE ANCHOR BOLTS ARE REQUIRED. YOU NOTE THAT SC-45 IS PART OF THE CONSTRUCTION INVITATION, NOT THE SUPPLY INVITATION, THAT NORDBERG HAD NO RESPONSIBILITY WHATEVER FOR THESE PROVISIONS, AND WHATEVER THE GOVERNMENT MAY HAVE ADVISED PROSPECTIVE BIDDERS ON THE CONSTRUCTION INVITATION COULD BE OF NO RELEVANCE HERE.

FINALLY, YOU CONTEND THAT WITH REGARD TO THE REVISION MADE BY ADDENDUM NO. 2 WHICH CHANGED THE NOTE ON THE ORIGINAL DRAWING 88-S-1 TO PROVIDE THAT THE CONSTRUCTION CONTRACTOR WAS TO FURNISH ALL ANCHOR BOLTS EXCEPT THOSE FURNISHED WITH STANDARDIZED EQUIPMENT, THE CIRCUMSTANCES SURROUNDING THE ISSUANCE OF SUCH ADDENDUM WERE EXTRAORDINARY. YOU STATE THAT 4 BOOKS OF SPECIFICATIONS AND 6 BOOKS OF DRAWINGS HAD TO BE STUDIED, ANALYZED AND ESTIMATED IN A VERY SHORT PERIOD; THAT ON NOVEMBER 30, WITH BID OPENING ONLY TWO DAYS OFF, NORDBERG RECEIVED A TOTAL OF 11 ADDENDA--- 5 TO THE SUPPLY INVITATION AND 6 TO THE CONSTRUCTION INVITATION; AND THAT THE NEWLY ARRIVED ADDENDA WERE SO VOLUMINOUS THAT TIME DID NOT PERMIT THOROUGH STUDY OF THEM, SUCH AS MIGHT HAVE LED NORDBERG, OR ANY OTHER REASONABLE BIDDER, AT MOST, TO WONDER WHETHER OR NOT THE REVISED DRAWING NOTE WAS OF ANY SIGNIFICANCE IN ITS BID.

WITH REGARD TO YOUR CONTENTIONS, OUTLINED ABOVE, IT SHOULD BE NOTED AT THE OUTSET THAT YOUR REQUEST FOR REFORMATION OF THE CONTRACTS INVOLVED HERE RESTS UPON THE CENTRAL ISSUE OF MISTAKE BY NORDBERG IN PREPARING AND SUBMITTING ITS BID TO FURNISH THE EQUIPMENT ADVERTISED. CLEARLY, IF NORDBERG'S MISTAKE IN SUBMITTING ITS BID WAS WHOLLY UNILATERAL THE REMEDY OF REFORMATION IS NOT AVAILABLE. AS OUR DECISION OF DECEMBER 2, 1960, NOTED THERE IS NO INDICATION THAT NORDBERG IS CONTESTING THE FACT THAT THE APPLICABLE CONDITIONS, SPECIFICATIONS, AND DRAWINGS, AS AMENDED BY ADDENDUM NO. 2 AND INCORPORATED INTO THE SUPPLY AND CONSTRUCTION CONTRACTS OBLIGATES NORDBERG TO FURNISH THE ANCHOR BOLTS. THE SOLE QUESTION BEFORE US IS WHETHER THE FACTS AND SURROUNDING CIRCUMSTANCES ARE SUFFICIENT TO SUPPORT THE REQUESTED REFORMATION OF THE CONTRACTS OR OTHER RELIEF.

YOUR LETTER OF MARCH 14, 1961, OFFERS NO NEW FACTUAL MATERIAL, EVIDENCE OR LEGAL AUTHORITY NOT PREVIOUSLY CONSIDERED IN OUR DECISION OF DECEMBER 2, 1960. OUR ATTENTION, THEREFORE, IS DIRECTED, AS IS YOUR LETTER, PRIMARILY TO THE INTERPRETIVE PROBLEMS DEALING WITH THE VARIOUS INVITATION FOR BID PROVISIONS PREVIOUSLY CONSIDERED.

THERE CAN BE NO DOUBT THAT PARAGRAPH SC-5B OF THE SUPPLY INVITATION ESTABLISHED A REQUIREMENT THAT BIDDERS FURNISH ANCHOR BOLTS WITH STANDARDIZED EQUIPMENT. THIS IS NOT DISPUTED. YOU DO DISPUTE, HOWEVER, THAT A REASONABLY DILIGENT BIDDER, BECAUSE OF SUBPARAGRAPH B'S POSITION IN THE INVITATION, WOULD, OR SHOULD HAVE BEEN, ON NOTICE THAT THE REQUIREMENTS OF THE SUBPARAGRAPH WERE APPLICABLE TO THE GROUP II GENERATORS. WE CANNOT AGREE WITH YOUR VIEWS ON THIS MATTER. PARAGRAPH SC -5 CONSISTED OF 4 SUBPARAGRAPHS--- A, B, C AND D--- WHICH WERE OF GENERAL APPLICATION AND COMMON TO ALL EIGHT GROUPS OF STANDARDIZED EQUIPMENT ITEMS. EACH SUBPARAGRAPH WAS PRECEDED IN THE INVITATION BY A SINGLE LOWER CASE LETTER. FURTHERMORE, SUBPARAGRAPH D WHICH APPEARED ON THE VERY NEXT PAGE FOLLOWING THAT UPON WHICH SUBPARAGRAPH B APPEARED, SPECIFICALLY REFERRED BACK TO B AND IMPOSED A DUTY UPON THE CONTRACTOR TO ADVISE ALL PROSPECTIVE SUPPLIERS FROM WHOM HE WAS SOLICITING PRICE QUOTATIONS OF THE INFORMATION CONTAINED IN SUBPARAGRAPH B. THUS, EVEN WERE WE TO ASSUME THAT THE POSITION OF SUBPARAGRAPH B IMMEDIATELY FOLLOWING THE LISTING OF GROUP VIII EQUIPMENT ITEMS CREATED UNCERTAINTY WITH REGARD TO WHETHER GROUP II BIDDERS WOULD BE REQUIRED TO FURNISH ANCHOR BOLTS, ANY UNCERTAINTY IN THAT REGARD WOULD IMMEDIATELY BE DISPELLED BY A READING OF SUBPARAGRAPH D. NOR DOES THE FACT THAT A "MORE REASONABLE" WAY OF INDICATING THE GOVERNMENT'S DECLARED INTENTION OF REQUIRING GROUP II BIDDERS TO FURNISH ANCHOR BOLTS, WOULD HAVE BEEN TO PUT THE SHORT SENTENCE ABOUT THE ANCHOR BOLTS UNDER EACH OF THE GROUPS--- I THROUGH VIII--- HAVE ANY CONTROLLING SIGNIFICANCE. THE ISSUE IS NOT WHETHER A MORE REASONABLE METHOD COULD HAVE BEEN EMPLOYED IN GIVING BIDDERS NOTICE AS TO THE REQUIREMENT OF FURNISHING ANCHOR BOLTS, BUT WHETHER THE METHOD ACTUALLY EMPLOYED WAS UNREASONABLE. ON THE BASIS OF THE RECORD BEFORE US, WE CANNOT CONCLUDE THAT THE METHOD EMPLOYED WAS UNREASONABLE. A READING OF PARAGRAPH SC-5 IN ITS ENTIRETY BY A REASONABLY DILIGENT BIDDER WOULD HAVE DISCLOSED THAT ANCHOR BOLTS WERE REQUIRED TO BE FURNISHED WITH ALL EIGHT STANDARDIZED EQUIPMENT ITEMS TO WHICH THEY WERE APPLICABLE. AS NOTED EARLIER, PAGE TC-1 OF THE SUPPLY INVITATION SPECIFICALLY PROVIDED THAT THE TECHNICAL PROVISIONS INCLUDED IN THE CONSTRUCTION INVITATION WOULD FORM A PART OF THE SUPPLY SPECIFICATIONS. PARAGRAPH 8, PAGE 21, OF THE SUPPLY INVITATION FURTHER ADVISED BIDDERS THAT THE TECHNICAL PROVISIONS AND THE ACCOMPANYING DRAWINGS OF THE INVITATION ALSO COVERED THE DETAILED REQUIREMENTS FOR THE EQUIPMENT AND SERVICES LISTED IN THE SCHEDULE OF EQUIPMENT ITEMS. IT IS CLEAR IN VIEW OF THESE PROVISIONS OF THE SUPPLY INVITATION THAT SECTION 48 OF THE TECHNICAL PROVISIONS ENTITLED ,GENERATING PLANT, DIESEL ELECTRIC" WAS COMMON TO BOTH THE SUPPLY AND THE CONSTRUCTION INVITATIONS. YOU CONTEND, HOWEVER, THAT THE TECHNICAL PROVISIONS DO NOT DISTINGUISH BETWEEN THE ITEMS TO BE SUPPLIED UNDER CONSTRUCTION CONTRACTS AND THOSE REQUIRED UNDER SUPPLY CONTRACTS AND, HENCE, SHOULD BE ENTIRELY DISREGARDED IN REACHING A PROPER DECISION IN THIS MATTER. YOU FEEL ON THE OTHER HAND THAT THE ORIGINAL DRAWING (88-S-1, SHEET 620) AND ITS NOTE ARE RELEVANT BECAUSE IT IS MARKED WITH THE CONSTRUCTION INVITATION NUMBER.

AS NOTED IN OUR DECISION OF DECEMBER 2, 1960, THE ORIGINAL DRAWING, STANDING ALONE, MIGHT HAVE BEEN READ AS INDICATING THAT THE CONSTRUCTION CONTRACTOR WAS TO FURNISH ANCHOR BOLTS FOR ALL EQUIPMENT, STANDARDIZED AND NONSTANDARDIZED, SHOWN ON THE DRAWING, BUT IN VIEW OF THE FACT THAT THE TECHNICAL PROVISIONS, 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, SUCH AN INTERPRETATION WAS NOT JUSTIFIED. YOUR LETTER CONCEDES THAT THE TECHNICAL PROVISIONS MADE NO DISTINCTION BETWEEN THE ITEMS TO BE SUPPLIED UNDER CONSTRUCTION CONTRACTS AND THOSE REQUIRED UNDER SUPPLY CONTRACTS. THE TECHNICAL PROVISIONS DID NOT ATTEMPT TO FIX THE RESPONSIBILITIES OF THE RESPECTIVE CONTRACTORS. THE DRAWINGS WERE A PART OF THE TECHNICAL PROVISIONS AND CANNOT BE CONSIDERED SEPARATELY FROM THEM. READ IN CONJUNCTION WITH THOSE PROVISIONS THE CONCLUSION IS INESCAPABLE THAT THE DRAWINGS ALSO DID NOT PURPORT TO FIX THE RESPONSIBILITIES OF THE TWO CLASSES OF CONTRACTORS TO FURNISH VARIOUS ITEMS OF EQUIPMENT. PARAGRAPH SC-5 OF THE SUPPLY INVITATION WITH ITS LISTING OF STANDARDIZED EQUIPMENT, AND SPECIFICALLY SC-5B WITH REGARD TO ANCHOR BOLTS, WAS INTENDED TO, AND DID, FIX THE RESPONSIBILITIES OF THE SUPPLY CONTRACTORS TO FURNISH THE EQUIPMENT REQUIRED FOR THEIR PORTIONS OF THE PROJECT. IN ANY EVENT, THE REVISED NOTE ON DRAWING NO. 88-S-1 AS REISSUED BY ADDENDUM NO. 2 CLEARED UP ANY UNCERTAINTY IN THAT REGARD WHICH MIGHT HAVE PREVIOUSLY EXISTED.

PARAGRAPH SC-45 OF THE SPECIAL CONDITIONS, AS YOUR LETTER INDICATES, IS PART OF THE CONSTRUCTION INVITATION AND, AS SUCH, NORDBERG HAD NO RESPONSIBILITY FOR THE PROVISIONS APPEARING THEREIN. UNDER THE TERMS OF CLAUSES SC-45A, B, AND C THE CONSTRUCTION CONTRACTORS WERE CLEARLY INFORMED THAT THE SUPPLY CONTRACTORS WOULD FURNISH ANCHOR BOLTS WITH STANDARDIZED EQUIPMENT. NORDBERG HAD A COPY OF THE CONSTRUCTION INVITATION AND A CURSORY READING OF THAT INVITATION WOULD HAVE DISCLOSED THAT THE CONSTRUCTION CONTRACTOR WAS NOT RESPONSIBLE FOR THE ANCHOR BOLTS ON STANDARDIZED EQUIPMENT. THE CONSTRUCTION INVITATION WAS AT HAND FOR READY REFERENCE AND IF ANY UNCERTAINTY EXISTED ON THE PART OF NORDBERG WITH REGARD TO ITS RESPONSIBILITY FOR FURNISHING ANCHOR BOLTS A READING OF THE CONSTRUCTION INVITATION WOULD HAVE RESOLVED IT. PARAGRAPH SC-45 OF THE SPECIAL CONDITIONS WAS NOT CITED IN OUR DECISION OF DECEMBER 2, 1960, FOR THE PROPOSITION THAT ITS TERMS IMPOSED UPON THE SUPPLY CONTRACTOR THE RESPONSIBILITY FOR FURNISHING THE BOLTS; IT WAS CITED MERELY AS ONE CIRCUMSTANCE, IN AN ACCUMULATION OF CIRCUMSTANCES, TENDING TO SHOW THAT NORDBERG'S MISTAKE WAS UNILATERAL IN THAT IT HAD THE MEANS AT HAND FOR RESOLVING ANY UNCERTAINTY THAT MAY HAVE EXISTED. AND ALTHOUGH, AS PREVIOUSLY INDICATED, WE DO NOT FEEL THAT THE TECHNICAL PROVISIONS AND THE ORIGINAL DRAWING INTENDED TO FIX THE RESPONSIBILITIES OF THE RESPECTIVE CONTRACTORS, A CAREFUL READING OF PARAGRAPH SC-5 OF THE SUPPLY INVITATION WOULD HAVE, WHEN COMPARED WITH THE ORIGINAL DRAWING, IMMEDIATELY DISCLOSED AN INCONSISTENCY. THE MEANS WERE THEN AT HAND FOR DETERMINING THE EXACT RESPONSIBILITY OF NORDBERG FOR FURNISHING THE ANCHOR BOLTS.

FINALLY WITH REGARD TO THE CIRCUMSTANCES SURROUNDING THE ISSUANCE AND RECEIPT OF ADDENDUM NO. 2 WE DO NOT FEEL THAT THOSE CIRCUMSTANCES AFFECTED THE VALIDITY OR EFFECTIVENESS OF THE CONTRACT. WHILE IT MAY BE TRUE THAT THE CONDITIONS SURROUNDING THE ISSUANCE AND RECEIPT OF ADDENDUM NO. 2 WERE NOT IDEAL IN TERMS OF EFFECTIVE PROCUREMENT PRACTICES, THEY WERE NOT SUCH AS TO REQUIRE A CONCLUSION THAT NORDBERG WAS PREJUDICED THEREBY. OF THE 11 ADDENDA RECEIVED ON NOVEMBER 30 IT WOULD APPEAR THAT ONLY A SMALL PROPORTION OF THE CHANGES CONTAINED THEREIN DEALT WITH THE ITEMS OF EQUIPMENT TO BE FURNISHED BY NORDBERG. A CURSORY COMPARISON OF THE ORIGINAL DRAWING WITH THE REVISED DRAWING WOULD HAVE DISCLOSED THE DELETION OF GENERAL NOTE NO. 1 ON THE ORIGINAL DRAWING AND THE SUBSTITUTION OF NOTE NO. 5 ON THE REVISED DRAWING.

PARAGRAPH 9A, PAGE 22, OF THE SUPPLY INVITATION ENTITLED "CHANGES IN SPECIFICATIONS" RESERVES THE RIGHT TO THE GOVERNMENT TO REVISE OR AMEND THE SPECIFICATIONS OR DRAWINGS PRIOR TO THE DATE SET FOR OPENING BIDS AND PROVIDES THAT IF THE REVISIONS AND AMENDMENTS ARE OF A NATURE WHICH REQUIRE MATERIAL CHANGES IN THE QUANTITIES OR PRICES BID, OR BOTH, THE DATE SET FOR OPENING BIDS MAY BE POSTPONED BY SUCH NUMBER OF DAYS AS IN THE OPINION OF THE DISTRICT ENGINEER WILL ENABLE BIDDERS TO REVISE THEIR BIDS. PARAGRAPH 10, PAGE 22, OF THE SUPPLY INVITATION ENTITLED ,CLARIFICATION OF DRAWINGS, SPECIFICATIONS AND DATA" STATES THAT BIDDERS SHOULD CAREFULLY EXAMINE THE DRAWINGS AND SPECIFICATIONS AND FULLY INFORM THEMSELVES AS TO ALL CONDITIONS AND MATTERS WHICH CAN IN ANY WAY AFFECT THE WORK OR COST THEREOF. PARAGRAPH 10 FURTHER PROVIDES THAT SHOULD A BIDDER FIND DISCREPANCIES IN, OR OMISSIONS FROM, THE DRAWINGS, SPECIFICATIONS OR OTHER DOCUMENTS, OR SHOULD HE BE IN DOUBT AS TO THEIR MEANING, HE SHOULD AT ONCE NOTIFY THE CONTRACTING OFFICER IN ORDER THAT CHANGES, IF NEEDED, MAY BE MADE BY ADDENDUM.

YOUR LETTER OF MARCH 14, 1961, STATES THAT "THE NEWLY ARRIVED ADDENDA WERE SO VOLUMINOUS THAT TIME SIMPLY DID NOT PERMIT THOROUGH STUDY OF THEM, SUCH AS MIGHT HAVE LED NORDBERG, OR ANY OTHER REASONABLE BIDDER, AT MOST TO WONDER WHETHER OR NOT THE REVISED DRAWING NOTE WAS OF ANY SIGNIFICANCE IN ITS BID.' THE SUBMISSION OF A BID BY NORDBERG IN RESPONSE TO THE INVITATION WAS VOLUNTARY. THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF THE BID IS UPON THE BIDDER. SEE 20 COMP. GEN. 652. IN THE LIGHT OF YOUR STATEMENT THAT TIME DID NOT PERMIT A THOROUGH STUDY OF THE ADDENDA IT IS NOT PERCEIVED WHY NORDBERG (OR THE OTHER BIDDERS FOR THAT MATTER) DID NOT REQUEST AN EXTENSION OF TIME TO PREPARE AND SUBMIT ITS BID. THE DISTRICT ENGINEER HAD THE AUTHORITY UNDER PARAGRAPH 9A TO POSTPONE THE DATE SET FOR OPENING BIDS, BUT SO FAR AS APPEARS FROM THE RECORD BEFORE US NO REQUEST WAS MADE FOR SUCH EXTENSION. FURTHERMORE, IF THE NEWLY ARRIVED ADDENDA WERE SO VOLUMINOUS THAT TIME DID NOT PERMIT THOROUGH STUDY OF THEM NORDBERG SHOULD HAVE REALIZED THAT A MISTAKE IN THE BID SUBMITTED WAS POSSIBLE. IT HAD 16 DAYS BETWEEN BID OPENING AND CONTRACT AWARD TO DISCOVER ITS ERROR BUT FAILED TO DO SO.

UNDER THE CIRCUMSTANCES WE MUST CONCLUDE THAT THE FAILURE OF NORDBERG TO INCLUDE AN ALLOWANCE FOR ANCHOR BOLTS IN ITS BID WAS A WHOLLY UNILATERAL MISTAKE NOT INDUCED NOR CONTRIBUTED TO BY THE GOVERNMENT. THERE IS NO BASIS IN THIS SITUATION FOR REFORMATION OF THE SUBJECT CONTRACTS OR FOR PAYMENT OF ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE. THE DECISION OF DECEMBER 2, 1960, MUST BE AND IS AFFIRMED.

THE DOCUMENTS SUBMITTED TO THIS OFFICE IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION ARE RETURNED.