B-156232, MAR. 26, 1965

B-156232, MAR. 26, 1965

TO E. JAY SMITH CONSTRUCTION CO.:

WE REFER TO YOUR LETTER OF FEBRUARY 26, 1965, WITH ENCLOSURES, CONCERNING YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE UNDER JOB NO. 64100, CONTRACT NO. ACHO-270, ON ACCOUNT OF AN ERROR IN BID UPON WHICH YOUR CONTRACT WAS BASED.

ON SEPTEMBER 9, 1964, THE ARCHITECT OF THE CAPITOL REQUESTED BIDS FOR INSTALLING STEEL SHELVING SUPPLIED BY THE GOVERNMENT AND FOR FURNISHING AND INSTALLING BOOK STACKS, LOCKERS AND BENCHES, GROUP VIII, IN THE RAYBURN HOUSE OFFICE BUILDING, WASHINGTON, D.C., ADDITIONAL HOUSE OFFICE BUILDING PROJECT. BIDDERS WERE REQUESTED TO SUBMIT LUMP SUM BIDS FOR THE WORK ADVERTISED AND WERE ADVISED BY PARAGRAPH 12 OF THE BIDDING CONDITIONS THAT THE CONTRACT WOULD BE AWARDED IN THE ENTIRETY FOR THE QUOTED LUMP-SUM PRICE.

YOUR BID, IN THE LUMP SUM OF $33,200, WAS THE ONLY BID RECEIVED AND OPENED ON OCTOBER 1, 1964. AS REQUIRED BY THE PROVISION ON PAGE X OF THE INVITATION, YOU FURNISHED UNIT PRICES APPLICABLE TO ADDITIONAL OR DELETED QUANTITIES. THAT PROVISION READ AS FOLLOWS:

"IF THE GOVERNMENT, PURSUANT TO ARTICLE 2-04 OF THE SPECIFICATIONS, SHALL INCREASE OR DECREASE THE QUANTITIES OF THE ITEMS OF STEEL SHELVING, BOOK STACKS, LOCKERS AND BENCHES STIPULATED IN THE SPECIFICATIONS, THE FOLLOWING UNIT PRICES SHALL APPLY TO THE ADDITIONAL OR DELETED QUANTITIES. THE DECREASE IN THE QUANTITIES OF ANY ONE ITEM SHALL NOT EXCEED 20 PERCENT (20 PERCENT) OF THE TOTAL CONTRACT NUMBER FOR THE ITEM. ITEM NUMBERS LISTED FOR THE UNIT PRICES CORRESPOND TO THE ITEM NUMBERS LISTED UNDER ARTICLE 4-06 OF THE SPECIFICATIONS.'

YOUR LUMP-SUM BID WAS ACCEPTED ON OCTOBER 26, 1964, AND A FORMAL CONTRACT WAS EXECUTED ON THE SAME DATE. BY LETTER DATED DECEMBER 9, 1964, YOU ADVISED THE ARCHITECT OF THE CAPITOL OF A ,SERIOUS ERROR" IN COMPUTATION. YOU CLAIMED THAT YOUR LUMP-SUM BID OF $33,200 WAS BASED ON 1,656 UNITS OF ITEM 1 AND 242 UNITS OF ITEM 2, INSTEAD OF 2,128 AND 562 UNITS, RESPECTIVELY, RESULTING IN AN ERROR OF $7,695.94. IN THIS CONNECTION, YOU ADVISED THE ARCHITECT OF THE CAPITOL THAT:

"INASMUCH AS OUR BID WAS SUBMITTED IN UNIT PRICES, A RE-CHECK OF OUR BID SHEET BY YOUR OFFICE AT THIS TIME WILL READILY INDICATE OUR ERROR. SINCE WE WERE NOT REQUESTED TO VERIFY OUR BID QUOTATION PRIOR TO AWARD AND DUE TO THE FACT WE WERE "ONE AND ONLY BIDDER" AND FURTHER SINCE THERE WAS NO GOVERNMENT ESTIMATE AVAILABLE TO US AFTER BID OPENING, IT WAS NOT OBVIOUS AT BID TIME THAT OUR ESTIMATE WAS NOT IN LINE. UNTIL DECEMBER 7, 1964, WE HAD NO REASON TO GO BACK OVER OUR ORIGINAL BID QUOTATION.'

CONTRARY TO YOUR IMPRESSION, BIDS WERE SPECIFICALLY REQUESTED ON A LUMP- SUM, AS DISTINGUISHED FROM AN ITEM-BY-ITEM, BASIS. THE UNIT PRICES REQUESTED UNDER THE ABOVE-QUOTED INVITATION PROVISION BORE NO RELATION TO THE LUMP-SUM BID; RATHER, THE UNIT PRICES QUOTED WERE ONLY FOR APPLICATION IN THE EVENT THE GOVERNMENT ELECTED, AFTER AWARD, TO INCREASE OR DECREASE THE QUANTITIES OF PARTICULAR ITEMS OF WORK. MATHEMATICALLY, THESE UNIT PRICES CANNOT BE EQUATED TO YOUR LUMP-SUM BID; NEITHER MAY IT BE SAID THAT THESE UNIT PRICES WHEN COMPARED TO YOUR LUMP-SUM BID CONSTITUTE EVIDENCE OF PATENT ERROR IN YOUR BID. FURTHERMORE, THE GENERAL RULE IS THAT THE CONTRACTING OFFICER IS UNDER NO DUTY TO CHECK BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. SEE ALLIED CONTRACTORS, INC. V. UNITED STATES, 129 CT.CL. 400. WE THINK THAT RULE IS EQUALLY APPLICABLE WHERE, AS HERE, THE ERROR WAS IN THE QUANTITIES, RATHER THAN THE UNIT PRICES, USED IN DETERMINING THE LUMP-SUM BID PRICE.

THE QUESTION FOR CONSIDERATION IS NOT WHETHER YOU MADE AN ERROR IN YOUR BID BUT WHETHER A VALID AND BINDING CONTRACT AROSE BY REASON OF THE ACCEPTANCE OF YOUR BID. THE RECORD SHOWS THAT YOUR BID WAS THE ONLY ONE RECEIVED. WHERE ONLY ONE BID IS RECEIVED THERE IS, OF COURSE, NO BASIS FOR COMPARISON OF BIDS AND WHERE THERE IS NO INDICATION ON THE FACE OF THE BID THAT THE PRICE QUOTED WAS NOT AS INTENDED THERE IS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. SEE 17 COMP. GEN. 560; AND 26 ID. 415. HENCE, IT MAY NOT BE PRESUMED THAT THE CONTRACTING OFFICER WAS OR SHOULD HAVE BEEN ON NOTICE OF ERROR IN YOUR BID AND THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER THE AWARD. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; THE PACIFIC HARDWARE AND STEEL CO. V. UNITED STATES, 49 CT.CL. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 CT.CL. 584, CERTIORARI DENIED 292 U.S. 645.

THE INVITATION WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF YOUR BID WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT.CL. 120, 163. IF, AS YOU ALLEGE, AN ERROR WAS MADE IN THE COMPUTATION OF YOUR BID PRICE, SUCH ERROR WAS DUE SOLELY TO YOUR OWN OVERSIGHT AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. THEREFORE, SUCH ERROR AS WAS MADE IN YOUR BID WAS UNILATERAL- -- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT.CL. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INCREASING THE LUMP SUM SPECIFIED IN YOUR CONTRACT.