B-159923, OCT. 19, 1966

B-159923, OCT. 19, 1966

TO EUGENE G. ALVES CONSTRUCTION CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 15, 1966, WITH ENCLOSURES, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID WHICH IS THE BASIS OF CONTRACT NO. NBY 77821, WITH THE WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, DEPARTMENT OF THE NAVY, SAN BRUNO, CALIFORNIA.

BY AN INVITATION ISSUED JUNE 9, 1966, BY THE WESTERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, SAN BRUNO, CALIFORNIA, BIDS WERE REQUESTED FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK CALLED FOR BY NFEC SPECIFICATION 77821/66 AND AMENDMENT NO. 1 FOR THE CONSTRUCTION OF AN ALL-WEATHER STORAGE AREA AT THE UNITED STATES NAVAL WEAPONS STATION, CONCORD, CALIFORNIA. IN RESPONSE THERETO YOUR FIRM SUBMITTED A BID OFFERING TO PERFORM THE WORK COVERED BY ITEM 1 (COMPLETE PROJECT) AT A LUMP-SUM PRICE OF $97,200.

IN EVALUATING THE BIDS, THE OFFICER IN CHARGE OF CONSTRUCTION NOTED THAT THE BID OF YOUR FIRM FOR ITEM 1 WAS MUCH LOWER THAN THE TWO OTHER BIDS AND THE GOVERNMENT ESTIMATE. BY LETTER DATED JUNE 22, 1966, YOU WERE ADVISED THAT THE NEXT TWO BIDS ON ITEM 1 WERE IN THE AMOUNTS OF $118,085 AND $121,500 AND THAT THE GOVERNMENT ESTIMATE WAS IN THE AMOUNT OF $111,000. YOUR FIRM WAS REQUESTED TO REVIEW THE REQUIREMENTS OF THE SPECIFICATIONS AND TO VERIFY YOUR BID PRICE IN WRITING WITHOUT DELAY. YOU ALSO WERE INFORMED IF AN ERROR WAS DISCOVERED IN YOUR BID YOU SHOULD IMMEDIATELY NOTIFY THE CONTRACTING OFFICER BY TELEPHONE.

IT IS REPORTED THAT ON JUNE 24, 1966, YOU ADVISED THE CONTRACTING OFFICE BY TELEPHONE THAT YOU HAD CHECKED YOUR BID AND FOUND NO ERRORS THEREIN AND THAT YOU WOULD CONFIRM SUCH VERIFICATION IN WRITING. YOU WERE ADVISED THAT SINCE THE CONTRACT WAS BEING FUNDED WITH EXPIRING FISCAL YEAR 1966 FUNDS, AN AWARD WOULD BE MADE TO YOUR FIRM ON THE BASIS OF THE VERBAL VERIFICATION OF YOUR BID. ON JUNE 27, 1966, A FORMAL AWARD OF THE CONTRACT WAS MADE TO YOUR FIRM.

IN A LETTER DATED JUNE 28, 1966, YOU ADVISED THE CONTRACTING OFFICE THAT AN ERROR HAD BEEN MADE IN YOUR BID IN THAT THE 6-INCH SUB-BASE ITEM HAS NOT BEEN INCLUDED IN THE QUANTITY TAKEOFF OR PRICING SCHEDULE. YOU STATED THAT THE ERROR IN YOUR BID WAS DISCOVERED THE SAME DAY ON WHICH YOU HAD ORALLY VERIFIED YOUR BID AND THAT YOU THEN INVESTIGATED SEVERAL OTHER POSSIBLE WAYS OF DOING THE WORK AND MATERIAL SOURCES IN THE ATTEMPT TO PROCEED WITH THE PROJECT FOR THE CONTRACT PRICE BUT THAT NONE OF THE OTHER POSSIBILITIES REDUCED THE COST SUFFICIENTLY TO OVERCOME THE LOSS RESULTING FROM THE ERROR IN YOUR BID.

BY LETTER DATED AUGUST 15, 1966, ADDRESSED TO OUR OFFICE, YOU REQUESTED THAT THE CONTRACT PRICE OF THE PROJECT BE INCREASED BY THE SUM OF $18,797.44 TO COVER THE COST OF THE OMITTED 6-INCH THICK SUB BASE COURSE, WHICH YOU STATED HAD BEEN OMITTED FROM YOUR BID PRICE. IN SUPPORT OF YOUR ALLEGATION OF ERROR, YOU SUBMITTED YOUR ORIGINAL WORKSHEETS.

THE SOLE QUESTION HERE FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN YOUR BID, AS ALLEGED, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. YOU ALONE WERE RESPONSIBLE FOR THE PREPARATION OF YOUR BID, AND ANY ERROR THAT MAY HAVE BEEN MADE THEREIN WAS UNILATERAL AND WAS NOT CONTRIBUTED TO BY THE GOVERNMENT. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT.CL. 249; SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505. SEE, ALSO, 26 COMP. GEN. 415 AND 36 ID. 27. THE RECORD ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT TO ASCERTAIN THE CORRECTNESS OF YOUR BID WHEN YOU WERE REQUESTED TO REVIEW YOUR BID TO DETERMINE WHETHER AN ERROR HAD OCCURRED, AT WHICH TIME YOU WERE SPECIFICALLY ADVISED THAT YOUR BID WAS CONSIDERABLY LOWER THAN THE NEXT LOW BID AND YOU WERE APPRISED OF THE RANGE OF ALL BIDS RECEIVED. IT WAS NOT UNTIL AFTER YOU UNEQUIVOCALLY CONFIRMED YOUR BID THAT THE CONTRACTING OFFICER CONSIDERED IT CORRECT AND PROPER FOR AWARD. HAD THE CONTRACTING OFFICER THEREAFTER NOT AWARDED THE CONTRACT TO YOU AS THE LOWEST RESPONSIBLE BIDDER, HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. SEE CARNEGIE STEEL CO. V. CONNELLY, 97 A. 774; SHRIMPTON MFG. COMPANY V. BRIN, 125 S.W. 942; ALABAMA SHIRT AND TROUSER CO. V. UNITED STATES, 121 CT.CL. 313; 37 COMP. GEN. 786.

THE ACCEPTANCE, AFTER CONFIRMATION, OF YOUR BID WAS IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD--- AND UNDER THE CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED BY ANY OFFICER OF THE GOVERNMENT IN THE ABSENCE OF ADEQUATE CONSIDERATION, AND CONSIDERATIONS OF SYMPATHY FOR POSSIBLE HARDSHIPS OR MISFORTUNES TO THE CONTRACTOR DO NOT AUTHORIZE ANY EXCEPTION TO THE RULE. SEE 22 COMP. GEN. 260; DAY V. UNITED STATES, 245 U.S. 159.

ACCORDINGLY, FOR THE FOREGOING REASONS NO VALID BASIS APPEARS FOR INCREASING THE CONTRACT PRICE.