B-155389, OCT. 28, 1964

B-155389, OCT. 28, 1964

TO THE HONORABLE JOHN S. GLEASON, JR., ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 12, 1964, FILE REFERENCE 074B, FROM THE DIRECTOR, SUPPLY MANAGEMENT SERVICE, REQUESTING A DECISION AS TO WHETHER THE RELIEF SOUGHT BY WESTERN WATERPROOFING COMPANY, INC., UNDER CONTRACT NO. V5266C-79 MAY BE GRANTED.

THE VETERANS ADMINISTRATION HOSPITAL, TOPEKA, KANSAS, BY INVITATION NO. 65-31, REQUESTED BIDS FOR WATERPROOFING AND REPAIRING CRACKS IN FIVE BUILDINGS AT THE HOSPITAL. IN RESPONSE WESTERN WATERPROOFING COMPANY, INC., SUBMITTED A BID DATED AUGUST 31, 1964, OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $4,500. THE BID OF THE CORPORATION WAS ACCEPTED ON SEPTEMBER 3, 1964.

IT IS REPORTED THAT ON SEPTEMBER 8, 1964, A REPRESENTATIVE OF WESTERN WATERPROOFING COMPANY, INC., VERBALLY ALLEGED THAT HE HAD MADE AN ERROR IN COMPUTING THE CORPORATION'S BID PRICE FOR THE WORK IN THAT HE HAD FAILED TO INCLUDE THEREIN THE AMOUNT OF $2,290 TO COVER THE COST OF SILICONE WATERPROOFING OF BUILDING NO. 1. BY LETTER DATED SEPTEMBER 14, 1964, THE CORPORATION REQUESTED THAT THE CONTRACT BE CANCELED. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED ITS WORKSHEETS WHICH SHOW THE PRICES FOR VARIOUS ITEMS OF WORK. NONE OF THE PRICES SHOWN ON THE WORKSHEETS COVER THE COST OF SILICONE WATERPROOFING OF BUILDING NO. 1.

IN A REPORT DATED SEPTEMBER 28, 1964, THE CONTRACTING OFFICER STATES THAT AFTER WESTERN WATERPROOFING COMPANY, INC., ALLEGED AN ERROR IN ITS BID, THE ENGINEERING OFFICER WAS REQUESTED TO RECHECK HIS ORIGINAL ESTIMATE OF $3,625 AND THAT SUCH OFFICER HAS ADVISED THAT AN ERROR IN ADDITION AND TAKEOFF WAS DISCOVERED IN HIS ORIGINAL ESTIMATE AND THAT HIS REVISED ESTIMATE FOR THIS JOB SHOULD HAVE BEEN $4,780.45, AN INCREASE OF $1,155.45.

IRRESPECTIVE OF THE QUESTION AS TO WHETHER THE CORPORATION'S WORKSHEETS ESTABLISH THAT AN ERROR WAS MADE BY THE CORPORATION IN ITS BID, AS ALLEGED, WE ARE OF THE VIEW THAT THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER THE CORPORATION MADE A BONA FIDE MISTAKE IN ITS BID BUT WHETHER A VALID CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE BID. THE CONTRACTING OFFICER HAS REPORTED THAT HE HAD NO REASON TO SUSPECT AN ERROR IN THE CORPORATION'S BID. IT IS REPORTED THAT THE THREE OTHER BIDS ON THE PROJECT WERE IN THE AMOUNTS OF $5,876, $6,760 AND $9,000 AND THAT THE ORIGINAL GOVERNMENT ESTIMATE OF THE COST OF THE WORK WAS $3,625. VIEW OF THE WIDE RANGE OF BIDS RECEIVED ON THE PROJECT AND THE AMOUNT OF THE GOVERNMENT'S ORIGINAL ESTIMATE, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR IN THE CORPORATIONS' BID. 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; SALIGMAN 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 FRAZIER 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 CORPORATION'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; 26 ID. 415; AND 40 ID. 326, 332.

THE RECORD INDICATES THAT THE GOVERNMENT'S ORIGINAL ESTIMATE OF $3,625 WAS ERRONEOUS AND THAT IT SHOULD HAVE BEEN $4,780.45. BUT SINCE THERE IS ONLY A DIFFERENCE OF $280.45 BETWEEN THE CORPORATION'S ORIGINAL BID PRICE AND THE GOVERNMENT'S REVISED ESTIMATE, EVEN IF THE CONTRACTING OFFICER HAD BEEN AWARE OF THE CORRECT ESTIMATE HE WOULD NOT HAVE BEEN ON NOTICE OF ERROR.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR CANCELING THE CONTRACT.