B-142348, APR. 13, 1960

B-142348, APR. 13, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED MARCH 21, 1960, WITH ENCLOSURES, FROM THE CHIEF, CONTRACTS BRANCH, PROCUREMENT DIVISION, DEPARTMENT OF THE ARMY, REQUESTING ON BEHALF OF THE ASSISTANT SECRETARY (LOGISTICS), A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ATLAS CONSTRUCTION COMPANY, LTD., ALLEGES IT MADE IN ITEM NO. 5 OF ITS BID ON WHICH CONTRACT NO. DA-94 -600-PAD-1252, DATED DECEMBER 23, 1959, IS BASED.

BY INVITATION NO. IFB 60-43, DATED DECEMBER 3, 1959, THE PURCHASING AND CONTRACTING BRANCH, ENGINEER SUPPLY AND MAINTENANCE CENTER, SCHOFIELD BARRACKS, HAWAII, REQUESTED BIDS FOR THE REHABILITATION OF THE EMERGENCY COMMAND POST (1ST PHASE), ALIAMANU CRATER, OAHU, HAWAII. ITEM NO. 5 WAS DESCRIBED AS "FOR THE PICKING UP OF AND HAULING 128 GOVERNMENT-FURNISHED BUNKS FROM BUILDING 920, KAPALAMA MILITARY RESERVATION TO THE E.C.P. AND THE INSTALLATION OF BUNKS AND BUNK SUPPORTS AS DETAILED ON THE DRAWINGS, COMPLETE IN PLACE, INCLUDING ALL PAINTING OF BUNKS AND SUPPORTS. (THE CONTRACTOR MAY HAUL THE BUNKS TO HIS SHOP AND MODIFY THEM THERE).'

THE ATLAS CONSTRUCTION COMPANY, LTD., WAS THE LOW BIDDER ON A COMBINATION OF SEVEN ITEMS AND WAS AWARDED THE CONTRACT ON DECEMBER 23, 1959. DECEMBER 30, 959, THE CONTRACTOR ADVISED THE CONTRACTING OFFICER THAT HIS SUBCONTRACTOR HAD ADVISED HIM THAT A MISTAKE OF $4,416 HAD BEEN MADE ON ITS BID ON ITEM NO. 5. BY LETTER OF JANUARY 7, 1960, THE CONTRACTOR FORWARDED A LETTER FROM THE SUBCONTRACTOR AND HIS WORKSHEETS IN SUBSTANTIATION OF THE ALLEGED ERROR AND REQUESTED THAT THE CONTRACT PRICE BE INCREASED BY $4,416. THE WORKSHEETS, WHICH WERE NOT AVAILABLE TO THE CONTRACTOR AT THE TIME HE PREPARED HIS BID, INDICATE THAT THE SUBCONTRACTOR FAILED TO INCLUDE THE ESTIMATED COST OF THE MATERIAL ON ITEM NO. 5. THE CONTRACTOR'S BID ON ITEM NO. 5 WAS $6,240. THE OTHER BIDS ON THIS ITEM WERE $6,256; $6,704; $6,848; $6,912; AND $7,040.

THE CONTRACTING OFFICER STATES THAT HE HAD NO REASON TO SUSPECT ANY ERROR IN THE BID AT THE TIME OF AWARD. ERROR WAS NOT APPARENT ON THE FACE OF THE BID AND THE DIFFERENCE BETWEEN THE CONTRACTOR'S BID AND THE OTHER BIDS ON ITEM NO. 5 WAS NOT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR. IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID WAS IN GOOD FAITH--- NO ERROR HAVING PREVIOUSLY BEEN ALLEGED --- AND THAT THIS CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES.

IF THE CONTRACTOR SUBMITTED A BID BASED UPON AN ERRONEOUS QUOTATION FROM ITS SUPPLIER, THAT IS A MATTER WHICH DOES NOT INVOLVE THE GOVERNMENT AND THE CONTRACTOR MUST ASSUME THE CONSEQUENCES OF THE ERROR OR LOOK TO ITS SUPPLIER FOR ADJUSTMENT. 6 COMP. GEN. 504; 18 ID. 28.

SINCE THE ERROR UPON WHICH THE REQUEST FOR RELIEF IS BASED WAS UNILATERAL, NOT MUTUAL, AND THE BID WAS ACCEPTED IN GOOD FAITH WITHOUT NOTICE OF ANY DEFECT IN THE BID, THE CONTRACTOR IS NOT ENTITLED TO RELIEF FROM ITS OBLIGATIONS UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :