B-131901, JUN. 14, 1957

B-131901, JUN. 14, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED MAY 16, 1957, FROM THE DEPUTY ASSISTANT SECRETARY (LOGISTICS) REQUESTING OUR DECISIONS ON WHETHER CONTRACT DA-41-133-AIV-2375 MAY BE INCREASED IN THE AMOUNT OF $2,216.50 TO COVER THE ALLEGED ADDITIONAL COST TO THE CONTRACTOR FOR INSTALLATION OF 8 EVAPORATIVE COOLERS IN BUILDING 2586 AT FORT SAM HOUSTON, TEXAS.

THE ENCLOSURES TRANSMITTED WITH THE LETTER FROM THE DEPUTY ASSISTANT SECRETARY INDICATE THAT THE ABOVE CONTRACT WAS AWARDED TO TOM F. MOSELEY ON JUNE 25, 1956, IN A LUMP-SUM AMOUNT OF $23,845.25. UNDER THE CONTRACT PROVISIONS THE CONTRACT WAS REQUIRED TO FURNISH ALL LABOR, EQUIPMENT, SUPPLIES, MATERIALS, TOOLS, AND APPLIANCES, AND TO PERFORM ALL OPERATIONS IN CONNECTION WITH THE INSTALLATION OF 37 EVAPORATIVE PAD TYPE AND SPRAY TYPE COOLING UNITS IN BUILDINGS T-371, 2586, 2589, AND 2590 AT FORT SAM HOUSTON, TEXAS, IN STRICT ACCORDANCE WITH APPLICABLE SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS. SUCH DRAWINGS AND SPECIFICATIONS REQUIRED A TOTAL OF 10 EVAPORATIVE COOLERS TO BE FURNISHED AND INSTALLED IN BUILDING 2586, AND THE CONTRACTOR PRESUMABLY PROCEEDED WITH PERFORMANCE BASED THEREON FROM JUNE OF 1956, UNTIL MARCH 1, 1957, AT WHICH TIME HE NOTIFIED THE CONTRACTING OFFICER THAT HE WAS FACING A LOSS ON THE CONTRACT WHICH CAUSED HIM TO RECHECK HIS BID FIGURES AND TO DISCOVER HE HAD COMPLETELY OVERLOOKED INCLUDING IN HIS LUMP-SUM BID PRICE THE COST OF 8 OF THE 10 COOLERS TO BE INSTALLED IN BUILDING 2586. ACCORDINGLY, THE CONTRACTOR HAS SUBMITTED HIS ORIGINAL ESTIMATE SHEET, SHOWING THAT THE COST OF COOLERS TO BE INSTALLED IN BUILDING 2586 WAS COMPUTED ON THE BASIS OF ONLY 2 COOLERS, TOGETHER WITH A COPY OF THE CONTRACTOR'S PURCHASE CONTRACT WITH HIS SUPPLIER, A BREAKDOWN OF THE TOTAL COST OF $2,216.50 TO THE CONTRACTOR FOR INSTALLATION OF THE REMAINING 8 COOLERS, AND A REQUEST FOR ADDITIONAL PAYMENT IN SUCH AMOUNT.

THERE IS NOTHING IN THE PRESENT RECORD TO REFUTE THE CONTRACTOR'S CONTENTION THAT THE COST OF 8 COOLERS WAS INADVERTENTLY OMITTED FROM HIS BID PRICE, AND THE FACT THAT HIS BID PRICE WAS $3,355 LESS THAN THE GOVERNMENT'S ESTIMATE WOULD TEND TO SUPPORT SUCH CONTENTION. NEVERTHELESS, THE PLANS AND SPECIFICATIONS WERE CLEAR AND UNAMBIGUOUS WITH RESPECT TO THE REQUIREMENT FOR 10 COOLERS IN BUILDING 2586. THE CONTRACTING OFFICER HAS NOT INDICATED THAT THE BID PRICE WAS INDICATIVE OF ERROR, AND THERE APPEARS TO BE NOTHING ON THE FACE OF THE BID, OR IN THE ATTENDANT CIRCUMSTANCES PRIOR TO AND AT TIME OF AWARD, TO INDICATE TO THE CONTRACTING OFFICER A POSSIBILITY OF ERROR. WHILE IT IS TRUE THAT THE LOW BID WAS $3,355 LESS THAN THE GOVERNMENT ESTIMATE, IT IS ALSO TRUE THAT THE SECOND LOW BID WAS $3,180 ABOVE SUCH ESTIMATE, AND THE THIRD LOW BID EXCEEDED THE SECOND BY $2,724. UNDER THE CIRCUMSTANCES IT IS OUR OPINION THAT NEITHER THE AMOUNT OF THE LOW BID NOR THE DIFFERENCE IN BID PRICES CONSTITUTED NOTICE OF PROBABLE ERROR, AND THE ACCEPTANCE OF THE BID MUST THEREFORE BE CONSIDERED TO HAVE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SUCH ERROR AS MAY HAVE BEEN MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND AS SUCH DOES NOT CONSTITUTE A BASIS FOR GRANTING RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507; 26 COMP. GEN. 415; 27 ID. 718; ID. 724; 29 ID. 40; ID. 323.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR INCREASING THE CONSIDERATION PRESENTLY SPECIFIED IN THE CONTRACT.

ENCLOSURES 1 THROUGH 6 RECEIVED WITH THE DEPUTY ASSISTANT SECRETARY'S LETTER ARE ENCLOSED.