B-125440, NOV. 29, 1955

B-125440, NOV. 29, 1955

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 7, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR THE JOHN MCCOURT COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. DA 19-093-NG-176 DATED MAY 16, 1955, IS BASED.

BY INVITATION NO. MNG 19-093-55-21, AS AMENDED, THE UNITED STATES PROPERTY AND FISCAL OFFICE, NATIONAL GUARD BUREAU, BOSTON, MASSACHUSETTS, REQUESTED BIDS--- TO BE OPENED ON MAY 13, 1955--- FOR FURNISHING LABOR, MATERIALS, AND PERFORMING ALL WORK FOR THE EXCAVATING, GRADING AND CONSTRUCTION OF A PAVEMENT AT THE MASSACHUSETTS NATIONAL GUARD MOTOR VEHICLE STORAGE INSTALLATION, CAMP CURTIS GUILD, WAKEFIELD, MASSACHUSETTS. IN RESPONSE, THE JOHN MCCOURT COMPANY SUBMITTED A BID DATED MAY 12, 1955, OFFERING TO CONSTRUCT THE PAVEMENT FOR THE LUMP SUM OF $13,615. THE SEVEN OTHER BIDS ON THE PROJECT WERE IN AMOUNTS RANGING FROM $20,065 TO $28,750.

IN AN UNDATED REPORT THE PURCHASING AND CONTRACTING OFFICER STATES THAT AFTER THE BIDS HAD BEEN OPENED AND RECORDED ON MAY 13, 1955, THE JOHN MCCOURT COMPANY WAS NOTIFIED THAT IT HAD SUBMITTED THE LOWEST BID FOR THE CONSTRUCTION OF THE PAVEMENT, AND THAT ON THE SAME DAY, ARRANGEMENTS WERE COMPLETED TO HAVE THE COMPANY'S OFFICIAL REPRESENTATIVE AND ITS BOND BROKER TO BE PRESENT AT THE CONTRACTING OFFICE ON MAY 16, 1955--- THE DATE OF AWARD--- FOR THE PURPOSES OF SIGNING THE FORMAL CONTRACT AND THE PERFORMANCE AND PAYMENT BONDS. THE PURCHASING AND CONTRACTING OFFICER STATED FURTHER THAT AT THE TIME THE PRESIDENT OF THE COMPANY WAS SIGNING THE COPIES OF THE CONTRACT, IN THE PRESENCE OF THE BOND BROKER, ANOTHER REPRESENTATIVE OF THE COMPANY AND HIMSELF, THE PRESIDENT MADE THE FOLLOWING REMARK,"WE MADE A MISTAKE OF $6,000 BUT WE ARE GOING TO DO THE JOB.; " AND THAT AT THAT TIME NO COMMENTS ON SUCH STATEMENT WERE MADE BY EITHER THE BOND BROKER, THE OTHER REPRESENTATIVE OF THE COMPANY, OR HIMSELF.

IN THIRD INDORSEMENT DATED JULY 29, 1955, THE UNITED STATES PROPERTY AND FISCAL OFFICER, MASSACHUSETTS NATIONAL GUARD, STATED THAT AT THE TIME THE CONTRACT WAS AWARDED TO THE JOHN MCCOURT COMPANY, IT WAS HIS UNDERSTANDING THAT THE COMPANY HAD RECENTLY BEEN AWARDED A VERY SIZEABLE CONTRACT FOR ROAD CONSTRUCTION BY THE COMMONWEALTH OF MASSACHUSETTS, IN THE VICINITY OF WAKEFIELD, MASSACHUSETTS, AND THAT IN ALL PROBABILITY THIS MAY HAVE INFLUENCED THE AMOUNT OF ITS BID. IT WAS STATED ALSO THAT SHORTLY AFTER THE COMPANY STARTED CONSTRUCTION OF THE PAVEMENT, IT ORALLY ADVISED THE INSPECTING OFFICER THAT IT HAD MADE AN ERROR IN ITS BID.

BY LETTER DATED JUNE 20, 1955, THE COMPANY SUBMITTED ITS ORIGINAL ESTIMATE SHEET AND ADVISED AS FOLLOWS:

"ATTACHED IS A COPY OF OUR ESTIMATE SHEET ON CAMP GUILD, WAKEFIELD.

COLUMN 3--- SHOWS OUR FIGURES FOR THE YARDAGE OF AREAS AGAINST

THE GOVT. AREA COLUMN 4.

COLUMN 5--- THE FIGURED REQUIRED GRAVEL.

COLUMN 6--- CASTINGS TO BE ADJUSTED.

COLUMN 7--- REQUIRED BITUMINOUS CONCRETE. THE BITUMINOUS CONCRETE

CALLED FOR IS 3 INCHES, THEREFORE, A FACTOR OF 6 IS USED,

THAT IS, 6 SQUARE YARDS PER TON OF MIX.

"THE ERROR WAS MADE BY DIVIDING THE REQUIRED CUBIC YARDS OF GRAVEL (COLUMN 5) BY 6 INSTEAD OF THE SQUARE YARD AREA COLUMN 4 BY 6.

"BITUMINOUS CONCRETE WAS ESTIMATED AT 296 TON AND IT SHOULD HAVE BEEN 1217 TON AN ERROR OF 921 TON AS INDICATED IN RED AT BOTTOM OF ESTIMATE SHEET.'

IN A LETTER DATED JULY 15, 1955, THE COMPANY STATED THAT THE ERROR ON ITS ESTIMATE SHEET CONSISTED OF THE OMISSION OF 921 TONS OF BITUMINOUS CONCRETE AT A UNIT PRICE OF $6.90 PER TON, A TOTAL OF $6,354.90; AND THAT HAD THERE BEEN NO ERROR IN ITS BID, ITS BID PRICE FOR THE PROJECT WOULD HAVE BEEN $19,969.

AFTER VERBALLY ALLEGING ERROR IN ITS BID, THE COMPANY ENTERED INTO A FORMAL CONTRACT WHEREIN IT UNEQUIVOCALLY AGREED TO PERFORM THE WORK FOR THE PRICE SPECIFIED IN ITS BID. THE FORMAL CONTRACT SIGNED BY THE COMPANY IS PRESUMED, IN LAW, TO HAVE EXPRESSED THE FINAL UNDERSTANDING OF THE PARTIES. IN SUCH CIRCUMSTANCES, THE COMPANY IS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168, 173; PARISH ET AL. V. UNITED STATES, 8 WALL. 489, 490; BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., INC., 133 F.2D 399; AND THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 C.CLS. 699, CERTIORARI DENIED, 325 U.S. 866. ALSO, SEE 23 COMP. GEN. 596; 25 ID. 536; AND 26 ID. 426.

ACCORDINGLY, ON THE BASIS OF THE FACTS OF RECORD AND THE LAW APPLICABLE TO THE MATTER, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. DA 19-093-NG-176.

THE PURCHASING AND CONTRACTING OFFICER'S UNDATED REPORT, THE COMPANY'S ORIGINAL ESTIMATE SHEET, AND THE PAPERS FORWARDED TO OUR OFFICE BY THIRD INDORSEMENT DATED OCTOBER 26, 1955, ARE BEING RETAINED. THE OTHER PAPERS ARE RETURNED.