B-146253, JUL. 14, 1961

B-146253, JUL. 14, 1961

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 23, 1961, REQUESTING A DECISION AS TO WHETHER CONTRACT NO. GS-04-B-6477 ENTERED INTO WITH MORRIS AND ESHER, INC., MAY BE MODIFIED TO PROVIDE FOR AN INCREASE OF $7,428 IN THE CONTRACT PRICE BECAUSE OF A MISTAKE ALLEGEDLY MADE BY THE CONTRACTOR IN SUBMITTING ITS BID.

BY INVITATION ISSUED JUNE 6, 1960, THE PUBLIC BUILDINGS SERVICE OF YOUR AGENCY AT ATLANTA, GEORGIA, INVITED BIDS TO BE OPENED JUNE 24, 1960, FOR THE REPAIR OF THE UNITED STATES QUARANTINE STATION, FISHER ISLAND, MIAMI, FLORIDA. THREE BIDS WERE RECEIVED. THE BID OF MORRIS AND ESHER, INC., WAS IN THE AMOUNT OF $72,789 AND THE OTHER TWO BIDS WERE IN THE AMOUNTS OF $96,920 AND $108,823. THE GOVERNMENT ESTIMATE OF THE COST OF THE WORK WAS $72,570. BECAUSE THE LOW BID APPROXIMATED THE GOVERNMENT ESTIMATE, THE CONTRACTING OFFICER AWARDED THE CONTRACT TO MORRIS AND ESHER, INC., ON JUNE 30, 1960, WITHOUT REQUESTING VERIFICATION OF ITS BID ALTHOUGH THE OTHER BIDS WERE CONSIDERABLY IN EXCESS OF THAT BID.

ON JULY 6, 1960, MR. ESHER, OF THE CONTRACTOR'S FIRM, CALLED THE CONTRACTING OFFICE AND ADVISED HIM THAT A MISTAKE HAD BEEN MADE IN ITS BID IN THAT THERE WAS OMITTED THE AMOUNT OF $7,428 FOR SOME SANDBLAST AND SHOTCRETE WORK. ALSO, HE REQUESTED AN INCREASE IN THE CONTRACT PRICE FOR THAT AMOUNT. THEREAFTER ON JULY 12, 1960, THE CONTRACTOR ADDRESSED A LETTER TO THE CONTRACTING OFFICE IN WHICH IT EXPLAINED THAT THE PAINTING SUBCONTRACTOR, MR. JAMES ROCHE, HAD QUOTED A PRICE OF $8,500 FOR THE PAINTING CALLED FOR IN THE SPECIFICATIONS BUT THAT HE DID NOT INCLUDE THE SANDBLAST AND SHOTCRETE WORK IN THAT FIGURE. THE CONTRACTOR HAD ASSUMED THAT THIS WORK WAS INCLUDED IN THE QUOTATION FROM ITS SUBCONTRACTOR. THE CONTRACTOR HAS PROCEEDED AND IS STILL CONTINUING WITH THE WORK.

IT IS STATED IN YOUR LETTER THAT THE CONTRACTING OFFICE MADE A REESTIMATE OF THE ORIGINAL CONTRACT WORK ON APRIL 20, 1961, AND THE TOTAL ESTIMATED COST WAS COMPUTED AT $78,143, AS COMPARED TO THE ORIGINAL ESTIMATE OF $72,570. ALSO, IT IS STATED THAT IT IS PROBABLE THAT HAD THE ORIGINAL GOVERNMENT ESTIMATE BEEN $78,143, THE CONTRACTING OFFICER MIGHT HAVE BEEN ALERTED TO THE POSSIBILITY THAT THE CONTRACTOR HAD MADE A MISTAKE AND WOULD HAVE REQUESTED VERIFICATION OF THE BID BEFORE AWARD. FURTHERMORE, THE EVIDENCE SUBMITTED BY THE CONTRACTOR CONSISTS OF A WORKSHEET WHICH REVEALS AN ITEM FOR PAINTING AND SANDBLASTING, WITH MR. ROCHE AS SUBCONTRACTOR, AT A PRICE OF $8,500. THERE IS A NOTATION "HE WILL SUBLET SB" (SANDBLASTING), WHICH INDICATES THAT SANDBLASTING WAS DISCUSSED WITH MR. ROCHE AND THAT IT WAS INCLUDED IN THE PRICE OF $8,500. IT IS INDICATED THAT THE ORIGINAL PROPOSAL OF MR. ROCHE WAS AN ORAL QUOTATION AND IT WAS NOT UNTIL JULY 2, 1960, AFTER AWARD OF THE CONTRACT, THAT MR. ROCHE MADE A WRITTEN QUOTATION OF $8,500 FOR PAINTING. IT HAS BEEN CONCLUDED BY THE CONTRACTING OFFICER--- AND WE AGREE--- THAT CLEAR AND CONVINCING EVIDENCE HAS NOT BEEN PRODUCED TO SUPPORT THE CLAIM THAT A MISTAKE IN BID WAS MADE AND TO ESTABLISH WHAT THE AMOUNT OF THE INTENDED BID WOULD HAVE BEEN.

THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. THERE WAS THEREFORE CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. ERROR, AS SUCH, APPEARS TO HAVE BEEN MADE BY THE CONTRACTOR AS ITS BID WAS IN THE AMOUNT INTENDED BY IT AT THE TIME OF ITS SUBMISSION. IN ANY EVENT ANY ERROR THAT WAS MADE WAS UNILATERAL AND DOES NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249, 259, AND SALIGMAN ET AL V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR REFORMATION OF THE CONTRACT BECAUSE OF THE ALLEGED MISTAKE IN THE CONTRACTOR'S BID.

THE PAPERS, WITH THE EXCEPTION OF THE FINDINGS AND RECOMMENDATIONS OF THE CONTRACTING OFFICER, ARE RETURNED HEREWITH.