B-153685, APR. 9, 1964

B-153685, APR. 9, 1964

TO SWANSTON EQUIPMENT COMPANY D/B/A:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 3, 1963, TO CAPTAIN J. D. TROUSDALE, BASE PROCUREMENT OFFICER, MCCOY AIR FORCE BASE, ORLANDO, FLORIDA, REQUESTING PAYMENT OF THE AMOUNT OF $4,393.60 IN ADDITION TO THE STIPULATED PRICE FOR "RESTRIPING" AIRFIELD PAVING AT MCCOY AIR FORCE BASE UNDER CONTRACT NO. AF 08/617/-2160, DATED JUNE 18, 1963, ENTERED INTO WITH THE DEPARTMENT OF THE AIR FORCE.

UNDER INVITATION NO. 08-617-63-23, DATED APRIL 22, 1963, ISSUED BY THE BASE PROCUREMENT OFFICE, MCCOY AIR FORCE BASE, ORLANDO, FLORIDA, BIDS TO BE OPENED MAY 22, 1963, WERE INVITED FROM SMALL BUSINESS CONCERNS ONLY FOR RESTRIPING THE EAST AND WEST RUNWAYS AND TAXIWAYS AT THE BASE IN ACCORDANCE WITH A DRAWING AND THE SPECIFICATIONS SET FORTH IN THE INVITATION, WHICH WERE DESIGNATED SPECIFICATIONS NO. MCY 27-3, AND CONSISTED OF "TECHNICAL PROVISIONS T 1-1 THROUGH T .' IN PARAGRAPH 4 OF THE INVITATION, BIDDERS WERE ADVISED THAT "FEDERAL, MILITARY AND/OR OTHER SPECIFICATIONS CITED IN THE TECHNICAL PROVISIONS WERE AVAILABLE FOR INSPECTION AT THE BASE CIVIL ENGINEER OFFICE, MCCOY AFB, ORLANDO, FLORIDA," AND THAT SINGLE COPIES THEREOF MIGHT BE OBTAINED FROM THE BUSINESS SERVICE CENTERS OF THE GENERAL SERVICES ADMINISTRATION OFFICES AT ANY OF TEN OF GSA'S REGIONAL OFFICES AT THE LOCATIONS SHOWN. PARAGRAPH 7 THEREOF CONTAINED THE ADVICE THAT, IF A BIDDER FOUND DISCREPANCIES OR OMISSIONS IN THE DRAWINGS, SPECIFICATIONS, OR OTHER DOCUMENTS, OR WAS IN DOUBT OF THEIR MEANING, HE SHOULD NOTIFY THE CONTRACTING OFFICER AT ONCE AND OBTAIN CLARIFICATIONS PRIOR TO SUBMITTING A BID.

WITH RESPECT TO THE PROCEDURE TO BE FOLLOWED BY BIDDERS IN REQUESTING CLARIFICATIONS OF THE SPECIFICATIONS, AND BY THE CONTRACTING AGENCY IN GIVING INTERPRETATIONS WITH RESPECT THERETO, PARAGRAPH 1 OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22) INCORPORATED IN THE INVITATION PROVIDED THAT ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., WOULD HAVE TO BE REQUESTED IN WRITING AND WITHIN SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH BIDDERS BEFORE THE SUBMISSION OF THEIR BIDS, AND THAT ANY INTERPRETATION WOULD BE MADE IN THE FORM OF AN AMENDMENT OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., AND WOULD BE FURNISHED TO ALL PROSPECTIVE BIDDERS. ALSO, PARAGRAPH 2 OF THE REFERRED- TO FORM PROVIDED THAT BIDDERS SHOULD VISIT THE SITE AND TAKE SUCH OTHER STEPS AS MIGHT BE REASONABLY NECESSARY TO ASCERTAIN THE NATURE AND LOCATION OF THE WORK, AND THE GENERAL AND LOCAL CONDITIONS WHICH COULD AFFECT THE WORK OR THE COST THEREOF, AND THAT FAILURE TO DO SO WOULD NOT RELIEVE BIDDERS FROM RESPONSIBILITIES FOR ESTIMATING PROPERLY THE DIFFICULTY OR COST OF SUCCESSFULLY PERFORMING THE WORK.

PARAGRAPH SP-1-20 OF THE SPECIAL PROVISIONS (AFPI 71-1031A) INCORPORATED IN THE INVITATION, ENTITLED "DESIGNATION OF TECHNICAL REPRESENTATIVE (JAN 1963)," PROVIDED THAT THE BASE CIVIL ENGINEER OR HIS AUTHORIZED REPRESENTATIVE WAS THEREBY DESIGNATED AS THE TECHNICAL REPRESENTATIVE OF THE CONTRACTING OFFICER FOR THE PURPOSE OF TECHNICAL SUPERVISION OF WORKMANSHIP UNDER THE CONTRACT, AND THAT DECISIONS OF THE BASE CIVIL ENGINEER, OR HIS AUTHORIZED REPRESENTATIVE, ON DETAILS OF PERFORMANCE, QUALITY OF MATERIALS AND WORK, WOULD BE ACCEPTED BY THE CONTRACTING OFFICER WHEN THEY WERE WITHIN THE SCOPE OF THE CONTRACT.

IN SUBMITTING A BID ON THE BID FORM PROVIDED (STANDARD FORM 21) UNDER DATE OF MAY 20, 1963, YOU OFFERED TO PERFORM THE WORK FOR THE SUM OF $14,870, WHICH, THE BID FORM PROVIDED,"IS A LUMP SUM AMOUNT FOR THE ENTIRE PROJECT AND NO PAYMENT WILL BE REQUESTED FOR WORK COVERED BY THE INDIVIDUAL SECTIONS OF THE TECHNICAL PROVISIONS.'

IT APPEARS FROM THE RECORD BEFORE US THAT, WHEN THE FIVE BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE OPENED, YOURS WAS FOUND TO BE THE LOW BID, THE OTHER BIDS RANGING FROM $18,231.92 TO $36,578. IN RESPONSE TO YOUR TELEPHONIC INQUIRY ON THE DATE OF BID OPENING CONCERNING THE RESULTS OF THE BIDDING, YOU WERE INFORMED BY THE CONTRACTING AGENCY THAT YOURS WAS THE LOW BID, AND YOU WERE REQUESTED TO SUBMIT VERIFICATION OF THE SAME IMMEDIATELY, AS WELL AS YOUR ,EXPERIENCE DATA" FOR SIMILAR WORK.

IN REPLYING TO THE ABOVE REQUEST BY LETTER OF MAY 27, 1963, YOU ADVISED THE CONTRACTING OFFICER IN PERTINENT PART AS FOLLOWS:

"WE REALIZE WE WERE CONSIDERABLY LOW ON THIS JOB, BUT WE BASED OUR FIGURES ON A TAKE-OFF ON THE PLANS THAT WE FEEL ARE FAIRLY ACCURATE. BID ON APPROXIMATELY 240,000 SQUARE FEET OF WHITE PAINT WITH REFLECTIVE MEDIA, 7000 SQUARE FEET OF YELLOW WITH REFLECTIVE MEDIA AND 42,400 SQUARE FEET OF YELLOW.

"IF THE PLANS ARE ACCURATE AND OUR TAKE-OFF IS CORRECT, WE ARE HAPPY TO VERIFY OUR BID OF $14,870.00.'

BY LETTER OF JUNE 3, 1963, THE CONTRACTING OFFICER INFORMED YOU THAT THE QUALIFIED VERIFICATION OF YOUR BID WHICH YOU HAD MADE WAS UNACCEPTABLE, AND HE REQUESTED THAT AN UNQUALIFIED VERIFICATION BE FURNISHED. YOU REPLIED BY LETTER OF JUNE 6, 1963, STATING:

"THIS WILL SERVE AS UNQUALIFIED VERIFICATION OF OUR BID IN THE AMOUNT OF $14,870.00 ON JOB--- IFB 08-617-63-23.'

YOU WERE SUBSEQUENTLY AWARDED THE CONTRACT FOR PERFORMING THE WORK INVOLVED, AND ON JUNE 21, 1963, EXECUTED CONTRACT AF-08/617/-2160, WHICH CALLED FOR THE WORK TO BE COMPLETED WITHIN 45 DAYS AFTER RECEIPT OF NOTICE TO PROCEED. YOU REPORTEDLY COMPLETED PERFORMANCE OF THE CONTRACT WORK ON SEPTEMBER 3, 1963, FIVE DAYS AHEAD OF SCHEDULE, AND THE RECORD SHOWS THAT THE AMOUNT OF $14,870 (REPRESENTING THE FULL CONTRACT PRICE) WAS PAID TO YOU ON SEPTEMBER 13, 1963.

IN YOUR REFERRED-TO LETTER OF OCTOBER 3, 1963, TO CAPTAIN TROUSDALE (THE CONTRACTING OFFICER), WHICH WAS THE FIRST NOTICE FURNISHED BY YOU OF ANY ERROR, YOU STATE THAT YOU MADE A MISTAKE IN YOUR BID, WHICH SHOULD HAVE BEEN $19,263.60, INSTEAD OF $14,870 (AS INDICATED BY THE BREAKDOWN SET FORTH IN YOUR LETTER), AND THAT YOU FEEL JUSTIFIED IN "DISPUTING THE CONTRACT PRICE" BECAUSE THE SPECIFICATIONS WERE INADEQUATE TO ESTIMATE A PROJECT OF THE PROPORTIONS INVOLVED. IN THIS CONNECTION, YOU STATE THAT THE STABILIZED SHOULDERS ON THE "NORTH RAMP" ARE 65 FEET WIDE, WHICH REQUIRED YOU TO PROVIDE A 60-FOOT STRIPE, INSTEAD OF THE 45-FOOT STRIPE SHOWN ON THE PLANS (DRAWING NO. MCY-M 1447); AND THAT THE TAXI LINES SHOWN ON "INSERT "A" " ARE MISLEADING AS THE 12-INCH LINES ARE DRAWN MUCH HEAVIER THAN THE 3-FOOT STRIPES ON THE STABILIZED SHOULDERS AND OTHER PARTS OF THE ALERT AREA, WHICH CAUSED YOU TO CONSIDER ONLY TAXIWAYS IN YOUR ESTIMATE RATHER THAN THE WHOLE ALERT AREA. YOU DRAW ATTENTION TO THE FACT THAT YOU HAD ADVISED THE CONTRACTING OFFICER IN THE ABOVE-QUOTED LETTER OF MAY 27, 1963, THAT YOU HAD "BID ON APPROXIMATELY 240,000 SQUARE FEET OF WHITE PAINT WITH REFLECTIVE MEDIA, 7,000 SQUARE FEET OF YELLOW WITH REFLECTIVE MEDIA AND 42,000 SQUARE FEET OF YELLOW," AND SET FORTH THE FOLLOWING DATA TO SHOW THE BASIS ON WHICH YOUR BID PRICE WAS CALCULATED, AS COMPARED TO THE BASIS WHICH SHOULD HAVE BEEN USED:

"BID:

240,000 SQUARE FEET WHITE AT .055 (WITH BEADS) ...... $13,200.00

7000 SQUARE FEET YELLOW WITH BEADS AT .0569 ......... 398.00

42,400 SQUARE FEET YELLOW AT .03 .................... 1,272.00

$14,870.00

"SHOULD HAVE BID:

273,439 SQUARE FEET WHITE WITH BEADS AT .055 ........ $15,039.15

100,416 SQUARE FEET YELLOW WITHOUT BEADS AT .03 ..... 3,012.48

21,300 SQUARE FEET YELLOW WITH BEADS AT .0569 ....... 1,211.97

$19,263.60 "

THE CONTRACTING OFFICER REFERRED YOUR LETTER TO THE BASE CIVIL ENGINEER FOR AN OPINION AND THAT OFFICIAL, IN A MEMORANDUM DATED OCTOBER 10, 1963, ADVISED THE CONTRACTING OFFICER AS FOLLOWS:

"1. AS PER YOUR REQUEST OF 7 OCT 63 FOR AN OPINION ON THE LETTER FROM TRAFFIC MARKING AND STRIPING COMPANY, 3 OCTOBER 1963, SUBJECT AS ABOVE, THE FOLLOWING INFORMATION IS FURNISHED.

A. REGARDING SUBPARAGRAPH 1, THE STRIPING REFERENCED THEREIN AS BEING ON THE NORTH RAMP IS IN ERROR AS NO STRIPING OF THE NORTH RAMP WAS INCLUDED IN THIS CONTRACT. ASSUMING THE AREA THEY ATTEMPTED TO REFERENCE AS BEING TAXIWAY NO. 5, THE NONTRAFFIC STRIPING DESIGNATION IS COVERED ON THE DETAIL "TAXIWAY MARKING OF STABILIZED SHOULDERS," SHOWN ON THE LOWER RIGHT HAND CORNER OF THE CONTRACT DRAWING. IT SHOULD BE NOTED THAT THE NONTRAFFIC STRIPING IS SHOWN AS BEING THREE FEET WIDE, BUT THE SHOULDER WIDTH VARIES. THIS IS TRUE THROUGHOUT THE ENTIRE AIRFIELD AND THE AVERAGE WIDTH COULD ONLY BE ASCERTAINED THROUGH AN ON-SITE INSPECTION OF THE AREA PRIOR TO SUBMISSION OF BIDS.

B. REGARDING SUBPARAGRAPH 2 - THIS DOES NOT APPEAR TO BE MISLEADING TO THIS OFFICE WHEN YOU CONSIDER THAT DRAWINGS, UNLESS MINUTELY DETAILED, CANNOT POSSIBLY INDICATE ALL STRIPING WIDTHS BY LINE WEIGHT. VISUALIZING INSERT "A" BEING ATTACHED TO THE AIRFIELD PAVEMENT AT THE POINT INDICATED ON THE DRAWINGS, IT THEN BECOMES APPARENT THAT THE NONTRAFFIC STRIPING DESIGNATION IS A CONTINUATION OF THE DESIGNATION SHOWN THROUGHOUT THE ENTIRE AIRFIELD PAVEMENT COMPLEX.

"2. NO ATTEMPT WAS MADE BY TRAFFIC MARKING AND STRIPING COMPANY PRIOR TO BID OPENING TO SATISFY ANY QUESTIONS PERTAINING TO THE TECHNICAL ASPECTS OF THIS CONTRACT. TWO TELEPHONE CALLS WERE RECEIVED FROM THE TRAFFIC MARKING AND STRIPING COMPANY MAN IN AN ATTEMPT TO FIND OUT THE GOVERNMENT COST ESTIMATE FOR BIDDING PURPOSES. HAD THE NORMAL ON-SITE INVESTIGATION BEEN ACCOMPLISHED PRIOR TO BID SUBMISSION, IT IS FELT NO DIFFICULTIES WOULD HAVE BEEN ENCOUNTERED.'

IN A STATEMENT PREPARED BY THE CONTRACTING OFFICER UNDER DATE OF OCTOBER 14, 1963, IN CONNECTION WITH YOUR CLAIM, THAT OFFICIAL REFERS TO THE INFORMATION CONTAINED IN THE ABOVE MEMORANDUM AND STATES THAT HE RECEIVED NO REQUEST FROM YOU FOR CLARIFICATION OF ANY PHASE OF THE SPECIFICATIONS, OR DETAILS SHOWN ON THE DRAWINGS, AS PROVIDED FOR IN PARAGRAPH 7 OF THE INVITATION, REFERRED TO ABOVE.

YOUR CLAIM WAS SUBSEQUENTLY FORWARDED BY THE AIR FORCE TO OUR OFFICE FOR DIRECT SETTLEMENT PURSUANT TO GOVERNMENTAL REGULATIONS, AND IN THE COURSE OF OUR INVESTIGATION OF THE MATTER, THE AIR FORCE WAS REQUESTED TO FURNISH US WITH A PHOTOSTAT OF THE OFFICIAL GOVERNMENT ESTIMATE COVERING THE WORK, AND A STATEMENT FROM THE CONTRACTING OFFICER AS TO WHETHER HE KNEW OR HAD REASON TO BELIEVE THAT YOU HAD MADE A MISTAKE IN THE PRICE BID.

BY LETTER OF FEBRUARY 14, 1964, THE AIR FORCE FURNISHED US WITH A PHOTOSTAT OF GOVERNMENT PROJECT ESTIMATE DATED JANUARY 14, 1963, FOR THE PROJECT INVOLVED, WHEREIN LABOR AND MATERIAL COSTS ARE ESTIMATED AT $14,400, TO WHICH 15 PERCENT FOR OVERHEAD AND CONTINGENCIES AND 10 PERCENT FOR PROFIT ARE ADDED, AND A TOTAL ESTIMATE OF $22,074.75 (INCLUDING $250 FOR "LABORATORY TESTS") FOR THE PROJECT IS SHOWN. BY THE SAME LETTER, WE WERE FURNISHED WITH THE FOLLOWING STATEMENT PREPARED BY THE BASE PROCUREMENT OFFICER, MCCOY AIR FORCE BASE, IN RESPONSE TO THE REMAINING INFORMATION REQUESTED IN OUR LETTER:

"2. WITH REFERENCE TO CONTRACTING OFFICER'S STATEMENT SHOWING WHETHER HE KNEW, OR HAD REASON TO BELIEVE, THE CLAIMANT MADE A MISTAKE IN PRICE BID, I WILL STATE THAT OUR ANSWER IS BASED ON OFFICE RECORDS AND POLICY AT THE TIME, SINCE THE CONTRACTING OFFICER (CAPTAIN JOHN D. TROUSDALE) HAS SUBSEQUENTLY TRANSFERRED TO WARREN AF BASE, WYOMING. POLICY IN EFFECT WAS TO REQUEST VERIFICATION OF BID IN ANY INSTANCE WHERE THE LOW RESPONSIVE BID DIFFERED FROM THE GOVERNMENT ESTIMATE, OR NEXT LOW BID BY 25 PERCENT OR MORE.'

IT THUS APPEARS THAT THE CONTRACTING OFFICER REQUESTED VERIFICATION OF YOUR BID SIMPLY BECAUSE IT WAS AS MUCH AS 25 PERCENT LOWER THAN THE GOVERNMENT ESTIMATE, IN ACCORDANCE WITH BASE PROCUREMENT OFFICE POLICY IN EFFECT AT THE TIME, AND THAT HE HAD NO SPECIAL REASON FOR SUSPECTING THAT YOU HAD MADE AN ERROR. HOWEVER, IF IT WERE TO BE CONCEDED THAT YOU MADE THE MISTAKE IN YOUR BID AS ALLEGED, THAT THE WIDE DISCREPANCY BETWEEN YOUR BID AND THE GOVERNMENT'S ESTIMATE, TOGETHER WITH THE SUBSTANTIAL DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOWEST BID, WAS SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF ERROR THEREIN, AND THAT THE CONTRACTING OFFICER WAS REMISS IN NOT HAVING ASCERTAINED, PRIOR TO MAKING THE AWARD, WHETHER THE FOOTAGE REFERRED TO IN YOUR LETTER OF MAY 27, 1963, AS HAVING FORMED THE BASIS FOR THE ESTIMATE ON WHICH YOUR BID WAS BASED, WAS APPROXIMATELY CORRECT, SUCH FACTS WOULD CONSTITUTE NO BASIS FOR ALLOWANCE OF YOUR CLAIM. AT THE MOST, THEY MIGHT HAVE ENTITLED YOU TO APPLY FOR RESCISSION OF THE CONTRACT BEFORE PERFORMANCE. HOWEVER, IN ORDER FOR ANY SUCH ERROR TO HAVE FORMED THE BASIS FOR RESCISSION, IT SHOULD HAVE BEEN TIMELY ASSERTED. YOUR CLAIM OF ERROR WAS NOT ASSERTED UNTIL AFTER YOU HAD COMPLETED PERFORMANCE OF THE CONTRACT AND BEEN PAID THE STIPULATED CONTRACT PRICE FOR THE WORK. IN THESE CIRCUMSTANCES, YOU MUST BE HELD TO HAVE AFFIRMED THE CONTRACT IN ALL ITS TERMS, AND TO HAVE WAIVED WHATEVER RIGHTS YOU MAY OTHERWISE HAVE HAD ARISING OUT OF THE ALLEGED MISTAKE. SEE BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O. D. WILSON CO., INC., 133 F.2D 399; HOOD COMPANY V. BOARD OF PUBLIC INSTRUCTION, 102 SO.2D 139; HOBE LUMBER CO. V. MCGRATH ET AL., 112 N.W. 1053, 1054; EASTERN STATES PETROLEUM CO. V. UNIVERSAL OIL PRODUCTS CO., 49 A.2D 612, 615; STALY V. MCNERNEY, 10 N.W.2D 584; STATE V. COTE ET AL., 65 A. 693, 698; JOHN MONKS AND SONS V. WEST STREET IMPROVEMENT CO. ET AL., 134 N.Y.S. 39, 44; GRANT MARBLE CO. V. ABBOT, 124 N.W. 264, 268; MILFORD YACHT REALTY CO. V. MILFORD YACHT CLUB, 72 A.2D 482, 485; BRENDESE V. CITY OF SCHENECTADY ET AL., 85 N.Y.S.2D 856, 861; ANDERSON V. ANDERSON ET AL., 96 N.E. 265; 17 C.J.S. CONTRACTS, SECS. 446, 448; RESTATEMENT, CONTRACTS, SECS. 510, 484; 39 COMP. GEN. 27, 31.

IN VIEW OF THE FOREGOING, NO BASIS EXISTS FOR PAYMENT TO YOU OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE, AND YOUR CLAIM MUST NECESSARILY BE DENIED.