B-152969, FEB. 13, 1964

B-152969, FEB. 13, 1964

TO ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 26, 1963, WITH ENCLOSURES, FROM THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, FILE 074B, REQUESTING OUR DECISION RELATIVE TO A MISTAKE IN BID ALLEGED AFTER AWARD BY MOORE'S AIR CONDITIONING IN RESPONDING TO INVITATION FOR BIDS NO. 63-191, ISSUED ON JUNE 7, 1963.

THE VETERANS ADMINISTRATION CENTER, LOS ANGELES 25, CALIFORNIA, BY INVITATION NO. 63-191 REQUESTED BIDS ON THE INSTALLATION OF FOUR LAUNDRY TUMBLERS IN BUILDING 224 OF THE CENTER. THE SPECIFICATIONS,CONSISTING OF FIVE PAGES, COVERED FURNISHING ALL LABOR AND MATERIALS NECESSARY TO INSTALL AND MAKE UTILITIES HOOK-UP TO FOUR T. L. SMITH TUMBLERS. RESPONSE THERETO MOORE'S AIR CONDITIONING SUBMITTED A BID DATED JUNE 21, 1963, OFFERING TO DO THE WORK SPECIFIED AT THE PRICE OF $7,590. THE ONLY OTHER BID RECEIVED WAS IN THE AMOUNT OF $13,215. SINCE THE PRICE BID BY MOORE'S WAS NOT OUT OF LINE WITH THE STATION ESTIMATE OF $6,000 FOR THE JOB ITS BID WAS ACCEPTED. AFTER THE INSTALLATION WORK WAS 60 PERCENT COMPLETED, MOORE'S ALLEGED A MISTAKE IN ITS BID IN THAT PAGE 4 OF THE INVITATION DOCUMENT IT UTILIZED IN WORKING UP ITS BID PRICE, WAS MISSING AND WAS NOT CONSIDERED IN PREPARING ITS BID. IT IS ALLEGED BY MOORE'S THAT THE ADDED WORK WOULD REQUIRE AN ADDITION OF $1,220 TO THE CONTRACT PRICE.

WHILE IT MAY BE THAT THE PARTICULAR COPY OF THE INVITATION DOCUMENT USED BY MOORE'S IN WORKING UP ITS BID PRICE HAD PAGE 4 MISSING FROM THE REVERSE SIDE OF PAGE 3, THE FACT REMAINS THAT THE BID FORM FURNISHED, SIGNED, AND SUBMITTED IN DUPLICATE BY MOORE-S, HAD ALL FIVE PAGES INCLUDED, AND EACH PAGE (INCLUDING PAGE 4) HAD "MOORE'S AIR CONDITIONING" TYPED ON THE BOTTOM. MOREOVER, CONTACTS HAVE BEEN MADE WITH OTHER FIRMS WHO RECEIVED INVITATIONS AND ALL OF THOSE CONTACTED ALTHOUGH THEY FAILED TO RESPOND, STATED THAT ALL THEIR COPIES WERE COMPLETE.

THE PRIMARY QUESTION IN THIS CASE IS NOT WHETHER A MISTAKE IN BID WAS MADE, AS ALLEGED, BUT WHETHER A VALID AND SUBSISTING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID.

THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, IT MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. SEE 20 COMP. GEN. 652, 657, AND CASES CITED THEREIN. HAVING REGARD FOR THE FACT THAT MOORE'S BID EXCEEDED THE GOVERNMENT'S ESTIMATE THE MERE FACT THAT THE ONLY OTHER BID RECEIVED WAS CONSIDERABLY HIGHER WOULD NOT JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF AN ERROR IN MOORE'S BID. 20 COMP. GEN. 286. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED BY THE CORPORATION UNTIL AFTER AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; SALIGNAM ET AL. V. UNITED STATES, 56 F.SUPP. 505.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAIZER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR IN THIS CASE WAS UNILATERAL--- NOT MUTUAL--- THE CORPORATION IS NOT ENTITLED TO RELIEF. SEE 20 COMP. GEN. 652 AND 26 ID. 415.

ACCORDINGLY, ON THE PRESENT RECORD THERE APPEARS TO BE NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICE BID BY MOORE'S AIR CONDITIONING.