B-136428, JUN. 20, 1958

B-136428, JUN. 20, 1958

TO THE SECRETARY OF THE ARMY:

IN A LETTER DATED JUNE 10, 1958, THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) REQUESTED A DECISION AS TO WHETHER CONTRACT NO. O.I. 4380-58Q, DATED FEBRUARY 18, 1958, WITH SCHAAB CONSTRUCTION COMPANY, LOUISVILLE, KENTUCKY, LEGALLY COULD BE NOTIFIED SO AS TO CORRECT A MISTAKE ALLEGED TO HAVE BEEN MADE THEREIN.

BY INVITATION NO. QM 33-031-581411, ISSUED JANUARY 29, 1958, THE QUARTERMASTER PURCHASING AGENCY, COLUMBUS (OHIO) GENERAL DEPOT, SOLICITED PROPOSALS FOR A JOB SERVICE DESCRIBED AS CONSISTING OF "ALL LABOR, MATERIALS, AND EQUIPMENT NECESSARY TO DISASSEMBLE, SKID, MOVE FROM PRESENT LOCATION AT THE JEFFERSONVILLE DEPOT ACTIVITY, JEFFERSONVILLE, INDIANA, LOAD ON COMMERCIAL CARRIER, TRANSPORT BY COMMERCIAL CARRIER TO THE COLUMBUS GENERAL DEPOT, COLUMBUS 15, OHIO, UNLOAD FROM THE COMMERCIAL CARRIER, AND MOVE TO THE STORAGE SITE TO BE DESIGNATED AT THE COLUMBUS GENERAL DEPOT," THE FOLLOWING PIECES OF EQUIPMENT:

THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, IN THE RESPECTIVE AMOUNTS OF $8,940, $10,280 AND $14,000 FOR THE JOB. ON FEBRUARY 18, 1958, THE AWARD WAS MADE IN FAVOR OF THE SCHAAB CONSTRUCTION COMPANY UPON THE BASIS OF ITS LOW JOB PRICE OF $8,940.

PRIOR TO SUBMITTING A PROPOSAL, THE LOW BIDDER'S REPRESENTATIVE CONTACTED THE CONTRACTING OFFICER AT THE COLUMBUS GENERAL DEPOT BY TELEPHONE AND INQUIRED AS TO THE WEIGHT OF THE PRESSES TO BE MOVED. AT THAT TIME THE CONTRACTING OFFICER ADVISED THE BIDDER THAT HE HAD NEVER SEEN THE PRESSES, BUT HE UNDERSTOOD THEIR WEIGHT WAS APPROXIMATELY 152,000 POUNDS. DURING THE CONVERSATION THE CONTRACTING OFFICER STRESSED THE FACT THAT THE GIVEN WEIGHT WAS FREELY AN ESTIMATE, AND SUGGESTED THAT THE BIDDER VISUALLY INSPECT THE PRESSES WHICH WERE AVAILABLE FOR THAT PURPOSE AT THE JEFFERSONVILLE DEPOT ACTIVITY.

SUBSEQUENT TO THE AWARD, THE CONTRACTOR'S REPRESENTATIVE VISITED THE COLUMBUS GENERAL DEPOT AND ADVISED THE CONTRACTING OFFICER, AND OTHER INTERESTED GOVERNMENT OFFICIALS, THAT THE TOTAL WEIGHT OF THE TWO PRESSES WAS AROUND 100 TONS, IN LIEU OF 76 TONS, AS ESTIMATED, AND THAT HE COULD NOT OBTAIN APPROVAL FROM THE HIGHWAY DEPARTMENT OF THE STATE OF OHIO TO TRANSPORT THE PRESSES OVER ITS HIGHWAYS BECAUSE OF THEIR EXCESSIVE WEIGHT. AT THIS CONFERENCE, THE CONTRACTOR REQUESTED THAT ITS CONTRACT BE MODIFIED TO ALLOW FOR THE ADDITIONAL EXPENSE INCIDENT TO TRANSPORTING THE PRESSES BY RAIL.

SUBSEQUENT TO THIS CONFERENCE, THE CONTRACTOR UNLOADED THE PRESSES WHICH PREVIOUSLY HAD BEEN DISASSEMBLED AND LOADED ABOARD THE TRUCKS, AND THEN LOADED THEM ABOARD RAIL CARS OF THE PENNSYLVANIA RAILROAD AT JEFFERSONVILLE, INDIANA, AND TRANSPORTED THEM, AT HIS EXPENSE, TO DESTINATION. THEREAFTER, BY LETTER DATED APRIL 8, 1958, THE CONTRACTOR FILED CLAIM FOR $2,438.13 TO COVER THE ADDITIONAL EXPENSE RESULTING FROM CONVERSION OF THE MODE OF HANDLING AND TRANSPORT FROM MOTOR VAN, AS ORIGINALLY WAS INTENDED, TO RAIL SHIPMENT.

IT IS NOTED THE INVITATION DID NOT LIST THE WEIGHT OF THE PRESSES, BUT ON PAGE 2 THEREOF THE BIDDERS DISTINCTLY WERE URGED TO INSPECT THE PROPERTY SCHEDULED TO BE MOVED PRIOR TO BIDDING ON THE JOB. FURTHERMORE, THE RECORD SHOWS THAT AT NO TIME EITHER PRIOR OR SUBSEQUENT TO THE AWARD DID THE CONTRACTING OFFICER GIVE THE CONTRACTOR ANYTHING MORE THAN A VOLUNTARY ESTIMATE OF THE WEIGHT OF THE PRESSES WHICH COULD NOT, IN THE CIRCUMSTANCES, BE INTERPRETED AS A REPRESENTATION BY THE GOVERNMENT OF THEIR ACTUAL WEIGHT.

THE CONTRACTOR, HAVING BID ON THIS JOB WITHOUT FIRST HAVING INSPECTED THE PROPERTY TO BE MOVED, DID SO ENTIRELY AT HIS OWN RISK. UPON THIS POINT THE LAW IS CLEAR THAT WHERE A PARTY AGREES TO DO, FOR A FIXED PRICE, A THING POSSIBLE TO BE PERFORMED, HE WILL NOT BE EXCUSED NOR BECOME ENTITLED TO ADDITIONAL COMPENSATION MERELY BECAUSE HARDSHIPS OR UNFORESEEN DIFFICULTIES WERE ENCOUNTERED. SEE UNITED STATES V. SPEARIN, 248 U.S. 132; DAY V. UNITED STATES, 245 ID. 159.

CONCERNING THE CONTRACTOR'S CLAIM FOR REIMBURSEMENT OF INCREASED PERFORMANCE COSTS RESULTING FROM ALLEGED MISTAKE IN BID, THE LAW IS EQUALLY WELL SETTLED THAT WHEN A BIDDER MAKES A MISTAKE IN THE PREPARATION OF HIS BID, AND SUCH BID HAS BEEN ACCEPTED, HE MUST BEAR ITS CONSEQUENCES UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT AS TO WARRANT THE PRESUMPTION THAT THE CONTRACTING OFFICER KNEW, OR SHOULD HAVE KNOWN, OF ITS EXISTENCE AND SOUGHT TO TAKE ADVANTAGE THEREOF. SEE ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 C.CLS. 127; OGDEN AND DOUGHERTY V. UNITED STATES, 102 ID. 249, 259; 29 COMP. GEN. 323, 324.

HERE, THE LOW BID OF THE SCHAAB CONSTRUCTION COMPANY WAS NOT OUT OF LINE WITH THE AMOUNTS OF THE OTHER BIDS SUBMITTED IN RESPONSE TO THE INVITATION, NOR WAS THERE ANYTHING ON THE FACE OF THE LOW BID SUGGESTIVE OF ERROR. ACCORDINGLY, THE CONTRACTOR'S UNDERESTIMATION OF THE ACTUAL WEIGHTS OF THE PRESSES TO BE MOVED WAS HIS UNILATERAL MISTAKE, WHICH WAS IN NO WISE INDUCED NOR CONTRIBUTED TO BY THE GOVERNMENT, AND THE GOVERNMENT'S ACCEPTANCE IN THESE CIRCUMSTANCES MUST BE HELD TO HAVE BEEN MADE IN ENTIRE GOOD FAITH.

THE PAPERS ARE RETURNED HEREWITH, AND YOU ARE ADVISED THAT THERE EXISTS NO LEGAL OR PROPER BASIS UPON WHICH THE CONTRACT MAY BE REFORMED OR THE CONTRACT PRICE INCREASED.