B-128723, SEP. 18, 1956

B-128723, SEP. 18, 1956

TO BOETEFUER DECORATING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1956, WITH ENCLOSURES, WHEREIN YOU ALLEGE THAT ERRORS WERE MADE IN YOUR BID DATED JUNE 28, 1956, ON WHICH CONTRACT NO. NBY-6161 IS BASED.

THE DISTRICT PUBLIC WORKS OFFICER, U.S. NAVAL BASE, PHILADELPHIA, PENNSYLVANIA, BY SPECIFICATION NO. 6161/56, REQUESTED BIDS--- TO BE OPENED JUNE 28, 1956--- FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE INTERIOR PAINTING OF BUILDING NO. 16 AT THE U.S. NAVAL SHIPYARD, PHILADELPHIA, PENNSYLVANIA. IN RESPONSE YOU SUBMITTED A BID DATED JUNE 28, 1956, OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $33,775. BY LETTER DATED JUNE 29, 1956, YOU WERE ADVISED THAT YOUR BID HAD BEEN ACCEPTED AND YOU WERE DIRECTED TO PROCEED WITH THE WORK.

BY LETTER DATED JULY 10, 1956, YOU ADVISED THE OFFICER-IN-CHARGE OF CONSTRUCTION THAT CERTAIN ERRORS WERE MADE IN YOUR BID AND YOU REQUESTED A CONFERENCE FOR THE PURPOSE OF DISCUSSING SUCH ERRORS. ON JULY 16, 1956, A CONFERENCE WAS HELD IN THE OFFICE OF THE OFFICER-IN CHARGE OF CONSTRUCTION AND AT THAT CONFERENCE AND BY LETTER DATED JULY 19, 1956, YOU WERE ADVISED THAT, SINCE ERROR WAS ALLEGED BY YOU AFTER AWARD, YOUR REQUEST FOR RELIEF UNDER THE CONTRACT WOULD HAVE TO BE ADDRESSED TO THE COMPTROLLER GENERAL OF THE UNITED STATES.

IN YOUR LETTER DATED JULY 23, 1956, TO THIS OFFICE, YOU REQUESTED THAT YOU BE RELIEVED FROM PERFORMANCE OF THE CONTRACT. YOU ALLEGE THAT YOU FAILED TO TRANSFER ONE ITEM OF 2,800 BROKEN WINDOW PANES FROM YOUR ORIGINAL TAKEOFF SHEET TO YOUR SUMMARY ESTIMATE SHEET AND THAT SUCH ERROR AMOUNTS TO $8,400 (2,800 PANES AT $3 PER LIGHT); THAT YOUR ESTIMATOR FAILED TO WRITE ON YOUR TAKEOFF SHEET AN ITEM OF CRANES AMOUNTING TO $1,600 (40 DAYS WORK AT $40 PER DAY); AND THAT YOU ALSO UNDERESTIMATED THE LENGTH OF THE BUILDING BY 48 FEET. IN SUPPORT OF THE ALLEGATION OF ERROR, THERE WAS FURNISHED PHOTOSTATIC COPIES OF YOUR ORIGINAL TAKEOFF SHEET AND SUMMARY ESTIMATE SHEET.

THE RESPONSIBILITY FOR PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON YOU. IF, AS STATED, YOU MADE CERTAIN ERRORS OF OMISSION ON YOUR ORIGINAL TAKEOFF SHEET AND SUMMARY ESTIMATE SHEET, SUCH ERRORS WERE DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WERE IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERRORS THAT WERE MADE IN THE BID WERE UNILATERAL --- NOT MUTUAL--- AND, THEREFORE, DO NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. ALSO, 20 COMP. GEN. 652; AND 26 ID. 415.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID, BUT WHETHER THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT. THE ABSTRACT OF BIDS SHOWS THAT THE THREE OTHER BIDS ON THE PROJECT WERE IN THE AMOUNTS OF $43,215, $73,750 AND $73,765, AND IT IS REPORTED THAT THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK IS $35,000. THE CONTRACTING OFFICER (OFFICER-IN-CHARGE OF CONSTRUCTION) HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN YOUR BID PRIOR TO AWARD SINCE THE DIFFERENCE OF $9,440 BETWEEN YOUR BID AND THE NEXT LOWEST BID RECEIVED ON THE PROJECT IS NOT UNUSUAL IN PAINTING WORK, AND BECAUSE YOU HAD PREVIOUSLY PERFORMED OTHER WORK FOR THE DEPARTMENT OF THE NAVY AT COMPARATIVELY LOW COST. IN VIEW OF THE WIDE RANGE IN THE BIDS RECEIVED ON THE PROJECT AND THE FACT THAT YOUR BID WAS IN LINE WITH THE GOVERNMENT'S ESTIMATE, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID. ALTHOUGH, AFTER AWARD, YOU FURNISHED YOUR ORIGINAL WORKSHEETS IN SUPPORT OF YOUR ALLEGATION OF ERROR, IT DOES NOT APPEAR THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER HAD KNOWLEDGE OF THE FACTORS USED BY YOU IN COMPUTING YOUR BID PRICE ON THE PROJECT. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY YOU UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, IN THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE CO., 249 U.S. 313; AND AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, THERE APPEARS NO LEGAL BASIS FOR EITHER INCREASING THE PRICE SPECIFIED IN CONTRACT NO. NBY-6161 OR FOR CANCELLING THE CONTRACT. WE HAVE NO LEGAL AUTHORITY TO RELIEVE CONTRACTORS FROM THE CONSEQUENCES OF AN ERRONEOUS BID, AFTER ACCEPTANCE, UNLESS THE ACCEPTANCE OF THE BID WAS UNDER SUCH CIRCUMSTANCES AS WOULD JUSTIFY THE IMPUTATION OF BDA FAITH TO THE OFFICER ACCEPTING IT. ..END :