B-152977, APR. 6, 1964

B-152977, APR. 6, 1964

TO MR. SIDNEY SOKOLOFF:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 26, 1963, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH FORMED THE BASIS FOR BUREAU OF YARDS AND DOCKS CONTRACT NO. NBY 48376.

THE UNITED STATES NAVAL AIR DEVELOPMENT CENTER, JOHNSVILLE, PENNSYLVANIA, REQUESTED BIDS TO BE OPENED ON JUNE 18, 1963, FOR THE INSTALLATION OF LABORATORY EQUIPMENT IN THE HEALTH PHYSICS LABORATORY. IN RESPONSE THERETO YOU SUBMITTED A BID OFFERING TO PERFORM THE WORK FOR THE LUMP-SUM AMOUNT OF $8,383. THE TWO OTHER BIDS RECEIVED WERE IN THE AMOUNTS OF $11,800 AND $11,877. THE GOVERNMENT'S ESTIMATE OF COST OF THE WORK WAS $8,750.

BY LETTER DATED JUNE 19, 1963, YOU WERE ADVISED OF THE AMOUNTS OF THE BIDS RECEIVED AND IT WAS STATED, IN PART, AS FOLLOWS:

"IN VIEW OF THE RANGE OF BIDDING, YOU ARE REQUESTED TO REVIEW YOUR BID, VERIFY THE CORRECTNESS THEREOF, AND NOTIFY THE OFFICER IN CHARGE OF CONSTRUCTION, IN WRITING, OF YOUR WILLINGNESS TO PERFORM THE WORK IN ACCORDANCE WITH PLANS AND SPECIFICATIONS AT YOUR BID PRICE OF $8,383.

"IF YOU FIND THAT YOU HAVE MADE AN ERROR IN YOUR ESTIMATE, YOU SHOULD PRESENT YOUR CASE IN WRITING REQUESTING THAT YOU BE PERMITTED TO WITHDRAW. YOUR LETTER SHOULD BE IN TRIPLICATE, ALL COPIES SIGNED, AND SHOULD CONTAIN THE FOLLOWING:

"A. A DETAILED STATEMENT INDICATING THE NATURE AND CAUSE OF THE ERROR.

"B. THE ORIGINAL BREAKDOWN ESTIMATE AND WORK SHEETS USED IN FORMING YOUR BID. PLEASE INDICATE THE ITEMS IN ERROR.

"C. SUCH OTHER INFORMATION OR ITEMS AS YOU CONSIDER PROPER.

"D. A STATEMENT THAT IF YOU ARE ALLOWED TO WITHDRAW WITHOUT PENALTY AND THE CONTRACT IS AWARDED TO ANOTHER BIDDER YOU WILL NOT PARTICIPATE IN THE JOB THROUGH SUBCONTRACT OR OTHERWISE.'

BY LETTER DATED JUNE 24, 1963, YOU ADVISED AS FOLLOWS:

"IN REPLY TO YOUR LETTER OF JUNE 19, 1963, I WISH TO INFORM YOU THAT I DID INDEED MAKE A MISTAKE IN MY BIDDING AS I ADVISED YOUR OFFICE BY PHONE. THIS MISTAKE WAS DUE TO A FAULT IN MY CALCULATOR AND AMOUNTED TO APPROXIMATELY $1700.00.

"I DO NOT, HOWEVER, WISH TO WITHDRAW MY BID AND WILL ACCEPT THE CONTRACT AND PERFORM ALL WORK IN ACCORDANCE WITH THE PLANS AND SPECS. FOR MY BID PRICE OF $8,383.00.

"CONTRACT AND BONDS WILL BE EXECUTED IMMEDIATELY UPON RECEIPT.

"I WISH ALSO TO ASSURE YOU THAT ALL WORK AND MATERIAL WILL BE AS USUAL "FIRST CLASS.'"

ON JUNE 27, 1963, YOUR BID IN THE AMOUNT OF $8,383 WAS ACCEPTED AND THEREAFTER YOU FURNISHED THE REQUIRED PERFORMANCE AND PAYMENT BONDS. THE WORK INVOLVED WAS SATISFACTORILY COMPLETED ON NOVEMBER 1, 1963. BY LETTER DATED NOVEMBER 10, 1963, YOU REFERRED TO YOUR LETTER OF JUNE 24, 1963, CONCERNING THE MISTAKE ALLEGED TO HAVE BEEN MADE IN YOUR BID AND SUBMITTED THEREWITH YOU WORK SHEETS UPON WHICH THE BID WAS BASED AND SHOWING THAT THE TOTAL OF THE ITEMS APPEARING ON THE FIRST PAGE THEREOF SHOULD HAVE BEEN $8,522 RATHER THAN $6,961, A DIFFERENCE OF $1,561. IT IS STATED THAT HAD THE SAME PERCENTAGES BEEN CARRIED OUT ON THE CORRECTED SUM YOUR BID WOULD HAVE BEEN $9,881 INSTEAD OF $8,383. IN VIEW THEREOF YOU REQUEST ANY RELIEF POSSIBLE.

WHILE IT MAY BE THAT AN ERROR WAS MADE IN PREPARING YOUR BID AS ALLEGED, YOU WERE GIVEN THE OPPORTUNITY TO SUBSTANTIATE SUCH ERROR PRIOR TO AWARD AND, UPON SUBSTANTIATION, TO WITHDRAW THE BID WITHOUT PENALTY. HOWEVER, YOU CHOSE NOT TO ATTEMPT TO WITHDRAW THE BID BUT TO ACCEPT THE AWARD OF THE CONTRACT FOR THE BID PRICE OF $8,383. THE RESULTING CONTRACT IS PRESUMED IN LAW TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES. REFORMATION OF A FORMAL CONTRACT DOCUMENT, ON THE GROUND OF UNILATERAL MISTAKE, IS ALLOWED ONLY WHERE THE CONTRACTOR WAS MISLED, OR WHERE THE GOVERNMENT KNEW THAT THE CONTRACTOR WAS MAKING A MATERIAL MISTAKE AND TOOK ADVANTAGE OF IT. RESTATEMENT OF CONTRACTS SECS. 503, 505.

IN THE CASE OF THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 CT.CL. 699, CERTIORARI DENIED 325 U.S. 866, THE PLAINTIFF SOUGHT TO RECOVER $88,000 ALLEGING THAT IT OMITTED AN ITEM OF THAT AMOUNT IN PREPARING ITS BID. THE COURT, IN DENYING RECOVERY OF THE AMOUNT OF THE ALLEGED MISTAKE, STATED (PAGE 717/---

"AT THE TIME THE CONTRACT WAS AWARDED TO THE PLAINTIFF, PURSUANT TO ITS BID, AND AT THE TIME IT SIGNED THE CONTRACT, THE PLAINTIFF WAS NOT MISTAKEN. IT HAD BECOME AWARE OF THE MISTAKE IN ITS BID, AND FACED THE PROBLEM OF WHETHER IT WAS WILLING TO SIGN A CONTRACT FOR THE FIGURE WHICH IT HAD, BY MISTAKE SINCE DISCOVERED, BID. THE GOVERNMENT WAS ALSO AWARE OF THE PLAINTIFF'S CLAIM THAT IT HAD MADE A MISTAKE IN THE BID. THERE WAS NOT, THEN, AT THE TIME OF SIGNING THE CONTRACT, ANY LACK OF KNOWLEDGE, EITHER MUTUAL OR UNILATERAL, WHICH CAUSED EITHER OF THEM TO MAKE THE CONTRACT WHICH THEY DID MAKE, WHEN IN FACT THEY INTENDED TO MAKE A DIFFERENT CONTRACT. THAT BEING SO, IF WE SHOULD REFORM THE CONTRACT AS THE PLAINTIFF REQUESTS, WE WOULD BE MAKING FOR THE PARTIES THE VERY CONTRACT WHICH ONE OF THEM, THE GOVERNMENT, EXPRESSLY REFUSED TO MAKE AT THAT TIME, THOUGH REQUESTED TO DO SO BY THE PLAINTIFF.'

ALSO, SEE BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., INC., 133 F.2D 399; 20 COMP. GEN. 652; 23 ID. 596; 25 ID. 536; 26 ID. 426; 31 ID. 384.

FOR THE FOREGOING REASONS THERE IS NO BASIS FOR THE PAYMENT OF ANY AMOUNT IN EXCESS OF THAT SPECIFIED IN CONTRACT NO. NBY 48376.