B-162515, JANUARY 22, 1968, 47 COMP. GEN. 378

B-162515, JANUARY 22, 1968, 47 COMP. GEN. 378

CONTRACTS - SPECIFICATIONS - DEVIATIONS - DELIBERATE A LOW BIDDER HAVING OBTAINED A CORROSION CONTROL FACILITY CONSTRUCTION CONTRACT BY SUBMITTING A BID THAT CONFORMED TO SPECIFICATIONS BUT WHO DELIBERATELY PLANNED TO DISREGARD USING THE PAVING EQUIPMENT PRESCRIBED IN THE INVITATION IN THE BELIEF THE SPECIFICATIONS WOULD NOT BE ENFORCED, WHEN COMPELLED TO CONFORM IN ACCORDANCE WITH THE SPECIFICATIONS MAY NOT RECOVER THE ADDITIONAL AMOUNT EXPENDED BY ALLEGING BID MISTAKE, ABSENT A SHOWING THE CONTRACTING OFFICER WAS CHARGEABLE WITH NOTICE THAT THE REQUIRED EQUIPMENT WAS UNOBTAINABLE AND THAT IT WAS UNREASONABLE FOR HIM IN LIGHT OF HIS EXPERIENCE WITH SIMILAR PROJECTS NOT TO CHECK SUB-ITEMS TO SUGGEST POSSIBLE AREAS OF ERROR TO THE CONTRACTOR WHEN HE FOUND THE OVERALL PRICE DIFFERENTIAL DID NOT REQUIRE VERIFICATION. THEREFORE, THE CONTRACTOR HAVING ACCEPTED THE AWARD WITHOUT OBJECTION IS ESTOPPED FROM QUESTIONING THE VALIDITY OF THE CONTRACT UPON FAILING TO HAVE THE CONTRACT INTERPRETED AND ENFORCED AS HOPED. CONTRACTS - DISPUTES - CONTRACT APPEALS BOARD DECISION - FINALITY THE FINDINGS BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS THAT THE USE OF OTHER THAN THE PAVING EQUIPMENT SPECIFIED IN AN INVITATION TO CONSTRUCT A CORROSION CONTROL FACILITY WOULD BE INADEQUATE FOR THE PERFORMANCE OF THE CONTRACT AWARDED, AND THAT THE CONTRACTOR HAD MISTAKENLY INTERPRETED THAT THE SPECIFICATIONS PERMITTED THE USE OF ALTERNATE EQUIPMENT ON A TRIAL BASIS, ARE FACTUAL FINDINGS THAT ARE FINAL AND BINDING, SUBJECT TO THE PROVISIONS OF THE WUNDERLICH ACT OF MAY 11, 1954, 41 U.S.C. 321.

TO SELLERS, CONNER AND CUNEO, JANUARY 22, 1968:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 15 AND NOVEMBER 29, 1967, AS ATTORNEYS FOR RAMCO, INC., FORT WALTON BEACH, FLORIDA,PRESENTING A CLAIM ON BEHALF OF THAT FIRM FOR A CONTRACT PRICE INCREASE OF $16,366.52 DUE TO AN ALLEGED MISTAKE IN BID DISCOVERED AFTER AWARD OF CONTRACT NO. DA -01-076-ENG-6385 BY THE ARMY CORPS OF ENGINEERS, MOBILE (ALABAMA) DISTRICT, FOR CONSTRUCTION OF A CORROSION CONTROL FACILITY AT ELGIN AIR FORCE BASE IN FLORIDA.

PARAGRAPH 33-12 OF THE SPECIFICATIONS FOR THE CONCRETE PAVEMENT, WHICH WAS THE MAJOR ITEM OF THE CONTRACT WORK, REQUIRED THE CONTRACTOR TO PROVIDE A CONCRETE BATCHING PLANT WHICH COULD BE LOCATED ON OR OFF THE GOVERNMENT PREMISES AS APPROVED, AND SUBPARAGRAPH (C) (1) PROVIDED FOR USE OF PAVING TYPE OF CONCRETE MIXERS AT THE WORK SITE UNLESS OTHER TYPES OF CONCRETE MIXERS WERE APPROVED IN WRITING. UNDER PARAGRAPHS 33-13 AND 33- 15 THE PLACING, SPREADING, VIBRATION AND FINISHING OF THE CONCRETE WAS REQUIRED TO BE PERFORMED IN A CONTINOUS AND RAPID MANNER (NOT LESS THAN 100 FEET OF 25-FOOT WIDTH PAVING LANE PER HOUR) BY USE OF SPECIFIED POWER EQUIPMENT EXCEPT THE FINISHING SPECIFICATIONS (33-15) PERMITTED USE OF THE HAND METHOD OF FINISHING ON ODD SLAB WIDTHS OR SRIPS, AND SUBPARAGRAPH 33- 15 (A) (4) OF SUCH SPECIFICATION PERMITTED USE OF OTHER TYPE OF FINISHING EQUIPMENT AS FOLLOWS:

(4) OTHER TYPES OF FINISHING EQUIPMENT. CONCRETE FINISHING EQUIPMENT OF TYPES OTHER THAN SPECIFIED ABOVE MAY BE USED ON A TRIAL BASIS. THE USE OF EQUIPMENT THAT FAILS TO PRODUCE FINISHED CONCRETE OF THE QUALITY AND CONSISTENCY REQUIRED BY THESE SPECIFICATIONS SHALL BE DISCONTINUED, AND THE CONCRETE SHALL BE FINISHED WITH EQUIPMENT AND IN THE MANNER SPECIFIED ABOVE.

PARAGRAPH 33-26 PROVIDED:

EQUIPMENT: ALL MACHINES, TOOLS, AND EQUIPMENT USED IN THE PERFORMANCE OF THE WORK REQUIRED BY THIS SECTION (33) SHALL BE APPROVED AND SHALL BE MAINTAINED IN SATISFACTORY CONDITION. A SIMILAR PROVISION REQUIRING APPROVAL OF EQUIPMENT WAS ALSO CONTAINED IN PARAGRAPH 33-10.

YOU STATE THE FACTUAL BACKGROUND, IN PART, AS FOLLOWS:

TOWARD THE END OF 1964 THE U.S. ARMY CORPS OF ENGINEERS SOLICITED BIDS ON A CONTRACT TO CONSTRUCT A CORROSION CONTROL FACILITY AT EGLIN AIR FORCE BASE IN FLORIDA. THE PROJECT INVOLVED POURING 3,900 CUBIC YARDS OF CONCRETE OVER AN AREA OF ROUGHLY 125 X 175 SQUARE FEET. THE SPECIFICATIONS OUTLINED IN SOME DETAIL THE PAVING EQUIPMENT TO BE USED BUT PROVIDED THAT OTHER TYPES OF EQUIPMENT MAY BE USED ON A TRIAL BASIS PROVIDED IT PRODUCES THE QUALITY AND CONSISTENCY SPECIFIED AND MEETS CERTAIN OTHER REQUIREMENTS.

THE EQUIPMENT SPECIFIED BY THE CONTRACT IS HEAVY DUTY, HIGH SPEED POWER PAVING EQUIPMENT SUCH AS IS USED ON LARGE HIGHWAY PROJECTS. THE CONTRACT FURTHER REQUIRED THAT A CONCRETE BATCHING PLANT BY CONSTRUCTED AT THE SITE. RAMCO DID NOT BELIEVE THAT THE COST OF SUCH EQUIPMENT WAS WARRANTED FOR A JOB INVOLVING ONLY 3,900 CUBIC YARDS OF CONCRETE. ACCORDINGLY, RAMCO BASED ITS BIDS UPON THE USE OF EQUIPMENT OF A SMALLER SCALE, AND LESS FULLY MECHANIZED, WHICH RAMCO BELIEVED WOULD PERFORM A SATISFACTORY JOB AND BE ACCEPTABLE UNDER THE CONTRACT PROVISION FOR ALTERNATE EQUIPMENT. RAMCO'S BID WAS LOW AT $77,978.50. THE NEXT LOWEST BID WAS APPROXIMATELY $21,000 HIGHER OR ROUGHLY $99,000.

AFTER SIGNING THE CONTRACT, BUT BEFORE COMMENCING PERFORMANCE, RAMCO SUBMITTED TO THE GOVERNMENT A LIST OF EQUIPMENT IT INTENDED TO USE FOR PLACING THE CONCRETE. THE GOVERNMENT TOOK THE POSITION, WITHOUT PERMITTING A TRIAL DEMONSTRATION, THAT THE EQUIPMENT RAMCO DESIRED TO USE DID NOT MEET THE SPECIFICATION REQUIREMENTS. TO AVOID A DEFAULT TERMINATION WITH ITS ATTENDANT ASSESSMENT OF REPROCUREMENT COSTS, RAMCO OBTAINED THE HEAVY DUTY EQUIPMENT THAT THE GOVERNMENT CLAIMED HAD TO BE USED TO MEET SPECIFICATION REQUIREMENTS, AN ADDED DIRECT COST OF $16,366.52.

RAMCO DILIGENTLY PURSUED ITS ADMINISTRATIVE REMEDIES. IT APPEALED TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS ON THE GROUND THAT THE SPECIFICATIONS DESCRIBING EQUIPMENT TO BE USED ON THE JOB ALSO PROVIDED FOR THE ALTERNATE USE OF CONTRACTOR-SUBMITTED EQUIPMENT ON A TRIAL BASIS (SPECIFICATION PROVISION 33-15 (A) (4) ). THE BOARD DENIED RAMCO'S APPEAL ON THE GROUND THAT IT HAD MISTAKENLY INTERPRETED THE SPECIFICATIONS ALLOWING FOR THE SUBMISSION OF ALTERNATE EQUIPMENT. IT ALSO FELT THAT THE ALTERNATE EQUIPMENT WAS OF SUCH A NATURE THAT IT WOULD NOT PERFORM THE DESIRED CONTRACT RESULTS AND, AS SUCH, THERE WAS NO REASON FOR THE GOVERNMENT TO EVEN ALLOW THE CONTRACTOR TO USE HIS EQUIPMENT ON A TRIAL BASIS.

YOU SAY THAT THE DIFFERENCE ($18,693.55) BETWEEN RAMCO'S BID($77,978.50) AND THE NEXT LOW BID ($96,672.05) ROUGHLY CORRESPONDS TO THE DIFFERENCE IN COST BETWEEN THE POWER EQUIPMENT SPECIFIED AND THE HAND-OPERATED EQUIPMENT WHICH RAMCO INTENDED TO USE. YOU CONTEND THAT THE CONTRACTING OFFICER HAD ADMINISTERED SEVERAL CONTRACTS OF RAMCO'S FOR SIMILAR PROJECTS AND KNEW WHAT BASIC PAVING EQUIPMENT RAMCO USED AS WELL AS THE COMPANY'S PAST METHODS OF PERFORMING SUCH CONTRACTS; THAT THE RESIDENT ENGINEER TOLD RAMCO THAT IT COULD USE TRANSIT TRUCK MIXERS WHEN IT WAS COMPUTING ITS BID, WHICH CAUSED RAMCO TO FEEL THAT SUCH USE OF ALTERNATE EQUIPMENT WAS REPRESENTATIVE OF THE ALLOWABILITY OF SUBSTITUTION OF OTHER EQUIPMENT; AND THAT THE CONTRACTING OFFICER'S REPRESENTATIVE WAS WELL AQUAINTED WITH RAMCO'SPRACTICES OF SUBSTITUTING EQUIPMENT PURSUANT TO SPECIFICATION MODIFICATIONS WHICH IT HAD BEEN ABLE TO OBTAIN ON PRIOR OCCASIONS.

YOU CITE VARIOUS DECISIONS OF THIS OFFICE REGARDING A CONTRACTING OFFICER'S DETECTION OF ERROR RESPONSIBILITY AND WHERE UPWARD ADJUSTMENTS IN CONTRACT PRICES WERE ALLOWED, AND YOU CONCLUDE AS FOLLOWS:

ON THE BASIS OF THE FACTS SURROUNDING THE PREPARATION OF RAMCO'S BID, IT IS APPARENT THAT THE COMPANY WAS IN ERROR AS TO THE INTERPRETATION THAT THE GOVERNMENT WOULD PLACE ON THE ALTERNATE MACHINERY CLAUSE. RELYING UPON PAST GOVERNMENT PRACTICE ON SIMILAR JOBS AND THAT THE SPECIFICATIONS OF THIS CONTRACT WOULD BE INTERPRETED IN THE SAME MANNER, RAMCO SUBMITTED ITS BID ON THE BASIS OF ITS SUBSTITUTE HAND-OPERATED EQUIPMENT--- A BID THAT WAS 21 PERCENT LOWER THAN THAT OF THE NEXT BIDDER. THIS DISPARITY IN BID PRICE, WHEN COUPLED WITH THE CONTRACTING AUTHORITY'S KNOWLEDGE OF THE METHOD IN WHICH RAMCO HAD PERFORMED SIMILAR JOBS IN THE PAST, GIVES RISE TO THE INESCAPABLE CONCLUSION THAT, IF THE CONTRACTING OFFICER DID NOT KNOW OF RAMCO'S MISTAKE, HE MOST CLEARLY SHOULD HAVE BEEN APPRISED OF IT.

THE CONTRACTING OFFICER ERRED IN HIS ERROR DETECTION DUTY AND THAT THIS ERROR RESULTED IN THE AWARD OF A CONTRACT AT A PRICE FAR BELOW RAMCO'S INTENDED COST OF PERFORMANCE UNDER GOVERNMENT SPECIFICATION INTERPRETATION. THEREFORE, YOUR OFFICE SHOULD REQUIRE A PRICE INCREASE IN THE AMOUNT OF $16,366.52, WHICH WAS THE ADDITIONAL COST INCURRED DUE TO THE GOVERNMENT'S FAILURE TO POINT OUT THAT THE BID WAS GROSSLY UNDERSTATED AND THAT THE CONTRACTOR WOULD NOT BE ALLOWED TO SUBSTITUTE ALTERNATE METHODS OF PERFORMANCE AS IT HAD BEEN PERMITTED IN PAST INSTANCES.

A COPY OF THE SUCCESSOR CONTRACTING OFFICER'S COMPLETE RESPONSE TO YOUR CONTENTIONS HAS BEEN FURNISHED YOU, AND WILL NOT BE REPEATED HERE. THAT REPORT STATES IN PART THAT YOUR CONTENTION THAT IT WAS CUSTOMARY TO PERMIT RAMCO TO DEVIATE FROM SPECIFICATION REQUIREMENTS AND TO USE OTHER EQUIPMENT IN PERFORMING SIMILAR CONTRACTS FOR THE CORPS OF ENGINEERS IS COMPLETELY UNSUBSTANTIATED BY ADMINISTRATIVE RECORDS. IT IS REPORTED THAT THE FILES OF THE CORPS OF ENGINEERS, MOBILE DISTRICT, INDICATE THAT RAMCO HAS BEEN BEEN THE SUCCESSFUL BIDDER ON EIGHT OTHER CORPS CONTRACTS FOR WORK AT EGLIN AIR FORCE BASE. WHILE THREE OF SUCH CONTRACTS INVOLVED THE PLACING OF FLEXURAL STRENGTH CONCRETE PAVEMENT TO SOME EXTENT, NONE OF THE SPECIFICATIONS THERE CONCERNED REQUIRED USE OF MECHANICAL EQUIPMENT SUCH AS THAT SPECIFIED IN THE SUBJECT CONTRACT. IT IS FURTHER REPORTED THAT THE RECORDS OF THE MOBILE DISTRICT DO NOT INDICATE THAT RAMCO OBTAINED WAIVERS OF SPECIFICATION REQUIREMENTS IN SUCH PAVING CONTRACTS, NOR HAS IT BEEN CUSTOMARY IN THAT DISTRICT TO PERMIT DEVIATIONS FROM SUCH, OR COMPARABLE, SPECIFICATIONS WITH RESPECT TO PAVING EQUIPMENT WHICH HAVE BEEN USED AND ENFORCED ON SIMILAR JOBS IN THE MOBILE DISTRICT. WHILE THE CONTRACTING OFFICER PERMITTED THE USE OF TRUCK MIXERS BY DECISION OF MAY 14, 1965, THE REPORT STATES THAT SUCH APPROVAL WAS AUTHORIZED BY THE CLEAR TERMS OF THE CONTRACT AND WAS GIVEN AS BEING IN THE BEST INTEREST OF THE GOVERNMENT RATHER THAN BECAUSE OF ANY PREBIDDING UNDERSTANDING. ALTHOUGH IT IS STATED IN THE ABOVE MENTIONED DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS (ASBCA NO. 10839, JANUARY 11, 1967) THAT THE CONTRACTING OFFICER DID HONOR A PRIOR UNDERSTANDING BETWEEN RAMCO AND A GOVERNMENT ENGINEER THAT READY-MIX CONCRETE TRUCKS OWNED BY RAMCO COULD BE USED AND THAT HE OMITTED THE SPECIFICATION REQUIREMENT FOR A POWER-DRIVEN SPREADER, PROVIDED THE POWER-DRIVEN TRANSVERSE FINISHING MACHINE WAS ADAPTED FOR USE ALSO AS A SPREADER, THE BOARD MADE NO FINDING OF ANY PRIOR UNDERSTANDING WITH THE CONTRACTING OFFICER OR HIS REPRESENTATIVE THAT RAMCO WOULD BE PERMITTED TO SUBSTITUTE HAND-OPERATED PLACEMENT AND FINISHING EQUIPMENT FOR THE POWER-DRIVEN PLACEMENT AND FINISHING EQUIPMENT CONSIDERED BY THE GOVERNMENT TO BE ESSENTIAL TO PRODUCE THE DESIRED RESULTS. NEITHER DO WE SEE ANY FINDING OR INDICATION BY THE BOARD THAT PAVING TYPE CONCRETE MIXERS CONSTITUTED SUCH AN INTEGRAL PART OF THE MECHANICAL EQUIPMENT SPECIFIED THAT THE USE OF READY-MIX TRUCKS PRECLUDED THE USE OF OTHER DESIGNATED POWER-DRIVEN EQUIPMENT (SUCH AS HOPPER SPREADERS OR CONCRETE BUCKET AND CRANE, OR VIBRATING UNITS AND FINISHING MACHINES) OR RENDERED IMPRACTICABLE THE USE OF SUCH EQUIPMENT IN CONJUNCTION WITH THE READY-MIX CONCRETE TRUCKS. THAT THE POSSIBLE USE OF TRUCK MIXERS WAS CLEARLY CONTEMPLATED IS INDICATED BY SUBPARAGRAPH (C) (2) OF THE SPECIFICATIONS, WHICH PROVIDED THAT "TRUCK MIXERS SHALL BE EQUIPPED WITH ACCURATE REVOLUTION COUNTERS" AND BY SUBPARAGRAPH (D) (2) WHICH PROVIDED IN CONNECTION WITH THE TRANSPORTATION OF MIXED CONCRETE THAT "TRUCK MIXERS USED FOR COMPLETE CONCRETE MIXING SHALL BE CAPABLE OF DELIVERING AND DISCHARGING THE CONCRETE WITHOUT SEGREGATION.'

REGARDING ANY PRIOR UNDERSTANDINGS, PARAGRAPH 1 OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22) CLEARLY STATES THAT ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING, AND THAT ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. PARAGRAPH GC-3 OF THE CONTRACTS' GENERAL CONDITIONS ALSO PROVIDES THAT THE GOVERNMENT ASSUMES NO RESPONSIBILITY FOR ANY UNDERSTANDING OR REPRESENTATIONS MADE BY ITS OFFICERS OR AGENTS DURING OR PRIOR TO THE EXECUTION OF THE CONTRACT UNLESS SUCH UNDERSTANDING OR REPRESENTATIONS ARE EXPRESSLY STATED IN THE CONTRACT. PARAGRAPH GC-1 REQUIRES THAT THE WORK BE PERFORMED IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, WHICH RAMCO ALSO SPECIFICALLY PROPOSED TO DO IN SUBMITTING ITS BID (STANDARD FORM 21). THAT PERFORMANCE OF THE WORK BY USE OF RAMCO'S MANUALLY OPERATED EQUIPMENT WOULD NOT HAVE PRODUCED THE REQUIRED QUALITY OF CONCRETE, WAS DETERMINED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN ITS DECISION, AND IT WAS ALSO DETERMINED THAT RAMCO, IN FACT, NEVER INTENDED TO COMPLY WITH THE SPECIFICATION REQUIREMENT OF PERFORMING THE PAVING OPERATIONS AT THE RATE OF 100 LINEAL FEET PERHOUR. SEE THAT PORTION OF THE DECISION WHERE IT IS STATED:

THE SPECIFICATIONS ARE EXPLICIT THAT THE MACHINERY WAS TO POUR, SPREAD, VIBRATE, SCREED, FLOAT AND FINISH CONTINUOUSLY AND RAPIDLY AT A RATE OF 100 LINEAL FEET PER HOUR, THE STIFF CONCRETE MIX AT THE PREVAILING TEMPERATURES AT 85 DEGREES F. MR. DAVIS, APPELLANT'S PRESIDENT, TESTIFIED THAT THE MANUAL EQUIPMENT AND HAND LABOR COULD NOT HAVE PERFORMED THE OPERATIONS AT SUCH SPEED, AND THAT HE NEVER INTENDED TO COMPLY WITH THIS REQUIREMENT. INSTEAD HE SCHEDULED A PERFORMANCE RATE OF 85 FEET PER HOUR (TR. (1), P. 76). EVEN HAD HE BEEN ABLE TO HAND-FINISH CONCRETE AT THIS RATE, AN ASSUMPTION NOT SUPPORTED BY THE RECORD, IT WOULD NOT AT THESE TEMPERATURES HAVE PRODUCED CONCRETE OF THE QUALITY REQUIRED BY THE CONTRACT.

WE CONCLUDE THAT APPELLANT'S EQUIPMENT AT THE SITE, OR WHICH IT INTENDED TO USE, WOULD HAVE BEEN INADEQUATE TO PRODUCE THE SPECIFIED RESULTS FOR HIGH TEST PAVING AT THE STIPULATED RATE, AND THAT NO TRIAL WAS NECESSARY TO DEMONSTRATE ITS INADEQUACY. THE BOARD ALSO AGREED WITH THE GOVERNMENT'S POSITION THAT THE PROVISION IN SUBPARAGRAPH 33 15 (A) (4) OF THE SPECIFICATIONS PERMITTING USE OF OTHER TYPES OF CONCRETE FINISHING EQUIPMENT ON A TRIAL BASIS REFERS ONLY TO POSSIBLE SUBSTITUTION OF OTHER TYPES OF POWER-DRIVEN EQUIPMENT AND NOT HAND OPERATED EQUIPMENT. ALTHOUGH A PRICE ADJUSTMENT IS NOW CLAIMED BY RAMCO ON THE BASIS OF AN ALLEGED MISTAKE IN ITS BID PRICE, IT IS EVIDENT THAT RAMCO'S SITUATION DOES NOT INVOLVE ANY ERROR IN THE COMPUTATION OF ITS PRICE. THE PRICE SET FORTH IN RAMCO'S CONTRACT IS THE PRICE WHICH IT INTENDED TO BID, AND THE ONLY MISTAKE WHICH MAY HAVE BEEN INVOLVED WAS IN RAMCO'S JUDGMENT THAT IT WOULD NOT BE REQUIRED TO CONFORM TO THE SPECIFICATION REQUIREMENTS CONCERNING USE OF HIGH-SPEED POWER-DRIVEN PAVING EQUIPMENT.

NO CLAIM OF MISTAKE WAS MADE BY RAMCO PRIOR TO AWARD OF THE CONTRACT, AND IN THIS SITUATION THE PRIMARY QUESTION IS WHETHER A VALID AND BINDING CONTRACT WAS CREATED BY ACCEPTANCE OF ITS BID. 36 COMP. GEN. 27. WHATEVER THE NATURE OF THE MISTAKE CLAIMED, IT WOULD HAVE NO EFFECT UPON THE VALIDITY OF THE CONTRACT UNLESS AT THE TIME OF THE AWARD THE GOVERNMENT, REPRESENTED BY THE CONTRACTING OFFICER, WAS ON NOTICE, ACTUAL OR CONSTRUCTIVE, THAT THE BID DID NOT REPRESENT THE ACTUAL INTENT OF THE BIDDER. IF, AS YOU CLAIM, THE GOVERNMENT WAS ON NOTICE OF THE FACT THAT RAMCO'S BID WAS NOT BASED UPON THE ADVERTISED SPECIFICATIONS, OR WAS BASED UPON AN ERRONEOUS INTERPRETATION OF THEM, THEN THE ACCEPTANCE OF RAMCO'S BID WAS NOT EFFECTIVE TO BIND IT, AND THE PURPORTED CONTRACT WAS NOT BINDING BUT SUBJECT TO RESCISSION. IN THAT EVENT, RAMCO WOULD BE ENTITLED TO BE PAID THE REASONABLE VALUE OF THE WORK DONE, WHICH UNDER THE PRINCIPLES FOLLOWED BY THIS OFFICE WOULD BE LIMITED TO THE AMOUNT OF THE NEXT HIGHER BID, OR IN THE USUAL CASE OF A MISTAKE IN THE AMOUNT BID, TO THE AMOUNT CLEARLY PROVEN TO HAVE BEEN INTENDED, WHICHEVER WAS LOWER. SEE 37 COMP. GEN. 398.

IN THE RECENT CASE OF UNITED STATES V. UTAH CONSTRUCTION CO., 384 U.S. 394, THE SUPREME COURT HELD THAT THE COURT OF CLAIMS HAD ERRED IN HOLDING THAT A CONTRACTOR'S CLAIMS FOR BREACH OF CONTRACT DAMAGES FOR DELAYS WERE SUBJECT TO DE NOVO DETERMINATION IN THAT COURT, WITHOUT REFERENCE TO THE ADMINISTRATIVE DISPUTES CLAUSE FINDINGS REGARDING RESPONSIBILITY FOR THE SAME DELAYS WHICH HAD BEEN MADE BY THE ASBCA UPON THE CONTRACTOR'S CLAIMS BEFORE THAT BOARD FOR RELIEF UNDER THE CONTRACT. REFERRING TO ITS DECISION IN UNITED STATES V. CARLO BIANCHI AND CO., 373 U.S. 709, THE COURT SAID (P. 420): * * * WE THERE HELD THAT ADMINISTRATIVE FINDINGS IN THE COURSE OF ADJUDICATING CLAIMS WITHIN THE DISPUTES CLAUSE WERE NOT TO BE RETRIED IN THE COURT OF CLAIMS BUT WERE TO BE REVIEWED BY THE COURT ON THE ADMINISTRATIVE RECORD. THIS RESULT, WHICH WAS REQUIRED BOTH BY THE CONTRACT OF THE PARTIES AND BY THE WUNDERLICH ACT, AVOIDS "A NEEDLESS DUPLICATION OF EVIDENTIARY HEARINGS AND A HEAVY ADDITIONAL BURDEN IN THE TIME AND EXPENSE REQUIRED TO BRING LITIGATION TO AN END," 373 U.S., AT 717, AND IT ENCOURAGES THE PARTIES TO MAKE A COMPLETE DISCLOSURE AT THE ADMINISTRATIVE LEVEL, RATHER THAN HOLDING EVIDENCE BACK FOR SUBSEQUENT LITIGATION. H.R. REP. NO. 1380, 83D CONG., 2D SESS., 5 (1954). THESE SAME REASONS SUPPORT THE FINALITY, IN A SUIT FOR DELAY DAMAGES, OF ALL VALID AND APPROPRIATE ADMINISTRATIVE FINDINGS ALREADY MADE IN THE COURSE OF RESOLVING A DISPUTE "ARISING UNDER" THE CONTRACT. ON THIS AUTHORITY, WE CONCLUDE THAT TO THE EXTENT THE CONTENTIONS NOW URGED BEFORE US WERE PRESENTED TO AND PASSED UPON BY THE ASBCA IN RESOLVING THE RAMCO CLAIMS WHICH WERE WITHIN THE BOARD'S JURISDICTION, WE ARE BOUND TO CONSIDER THE BOARD'S FACTUAL FINDINGS THEREON AS FINAL AND BINDING, SUBJECT TO THE PROVISIONS OF THE WUNDERLICH ACT OF MAY 11, 1954, 68 STAT. 81, 41 U.S.C. 321.

THE CASE BEFORE US IS THEREFORE A CLAIM FOR RELIEF BY A BIDDER WHO "READ AND UNDERSTOOD" THE REQUIREMENTS OF THE SPECIFICATIONS, BUT DELIBERATELY SUBMITTED A BID ON A DIFFERENT BASIS BECAUSE ,HE DID NOT BELIEVE THEY WOULD BE ENFORCED.' THE CLAIM MADE TO THE CONTRACTING AGENCY WAS BASED UPON THE THEORY THAT THE BID WAS BASED UPON A REASONABLE AND PERMISSIBLE INTERPRETATION OF THE SPECIFICATION BY THE BIDDER, BUT THE ABOVE-QUOTED FINDING OF THE BOARD DOES NOT SUPPORT THAT THEORY AS A MATTER OF FACT, AND THE BOARD ALSO CONCLUDED AS A MATTER OF LAW THAT THE SPECIFICATIONS WERE NOT REASONABLY SUSCEPTIBLE OF THE INTERPRETATION CONTENDED FOR. WE SEE NO REASON TO DISAGREE WITH THE BOARD'S INTERPRETATION.

ON THE RECORD WE CANNOT CONSIDER THE CASE AS ONE IN WHICH THE BIDDER SUBMITTED A BID BASED UPON A BONA FIDE MISINTERPRETATION OF THE SPECIFICATION. RATHER IT APPEARS TO BE ONE WHERE A BIDDER DELIBERATELY CHOSE TO OFFER TO PERFORM A CONTRACT ACCORDING TO SPECIFICATIONS TO WHICH HE DID NOT IN FACT INTEND TO CONFORM, WITHOUT INCLUDING IN HIS BID ANY INDICATION OF HIS TRUE INTENT. HAD THE CONTRACTING OFFICER ACTUALLY KNOWN THE BIDDER'S INTENTION, HE MIGHT HAVE BEEN UNDER A DUTY TO REJECT THE BID, BUT WE WOULD BE MOST RELUCTANT TO IMPUTE KNOWLEDGE TO THE CONTRACTING OFFICER OF SUCH A DELIBERATE UNDISCLOSED EXCEPTION ON ANYTHING LESS THAN THE MOST COMPELLING PROOF OF FACTS WITHIN THE KNOWLEDGE OF THE CONTRACTING OFFICER.

YOU CONTEND THAT THE CONTRACTING OFFICER WAS ON NOTICE, BECAUSE OF RAMCO'S PREVIOUS PERFORMANCE OF CONTRACTS INVOLVING SIMILAR WORK, THAT HE PROBABLY EXPECTED TO DO THE WORK IN THE SAME MANNER. WE ARE TOLD, HOWEVER, THAT NONE OF THE PREVIOUS CONTRACTS CONTAINED THE SAME REQUIREMENTS AS TO THE TYPE OF SPREADING AND FINISHING EQUIPMENT TO BE USED, AND WE ARE THEREFORE UNABLE TO ACCEPT THE LOGIC OF YOUR CONTENTION. AS TO THE ALLEGED KNOWLEDGE OF THE CONTRACTING OFFICER(OR OTHER PERSONNEL WHOSE KNOWLEDGE MIGHT BE CHARGED TO HIM) CONCERNING THE KIND OF EQUIPMENT OWNED BY OR AVAILABLE TO RAMCO, WE FEEL THAT ONLY IF IT WERE SHOWN THAT THE CONTRACTING OFFICER WAS CHARGEABLE WITH NOTICE THAT RAMCO WOULD HAVE BEEN UNABLE TO OBTAIN THE USE OF SPECIFIED EQUIPMENT TO PERFORM THE CONTRACT WOULD WE BE JUSTIFIED IN AGREEING WITH YOUR ARGUMENT. NO SUCH SHOWING HAS BEEN MADE.

THERE REMAINS FOR CONSIDERATION ONLY YOUR BASIC CONTENTION THAT THE RAMCO BID WAS SO FAR BELOW ANY OTHER BID AS TO PUT THE CONTRACTING OFFICER ON INQUIRY AS TO POSSIBLE MISTAKE. IN THIS CONNECTION YOU RELY ALSO ON THE PRINCIPLE STATED IN KEMP V UNITED STATES, 38 F.SUPP. 568, AND METRO NOVELTY MFG. CO. INC., V UNITED STATES, 125 F.SUPP. 713, THAT THE CONTRACTING OFFICER'S DUTY IS NOT MERELY TO REQUEST VERIFICATION OF THE SUSPECTED BID, BUT TO DIRECT THE BIDDER'S ATTENTION SPECIFICALLY TO THE NATURE OF THE MISTAKE WHICH THE CONTRACTING OFFICER SUSPECTS.

WE ARE NOT SATISFIED THAT IN THIS CASE THE CONTRACTING OFFICER, EVEN IF HE HAD DECIDED TO REQUEST VERIFICATION OF THE RAMCO BID, WOULD HAVE BEEN REQUIRED TO DIRECT THE BIDDER'S ATTENTION TO THE PAVING ITEM, SINCE RAMCO'S PRICE ON THAT ITEM WAS ONLY $2500, OR BETWEEN 7 AND 8 PERCENT, LESS THAN THE PRICE OF THE NEXT BIDDER, WHEREAS ON THE SECOND LARGEST INDIVIDUAL BID ITEM, THE CONSTRUCTION OF A CONTROL CENTER AND EQUIPMENT BUILDING, ITS PRICE WAS $5090, OR MORE THAN 20 PERCENT, LOWER. WHILE WE HAVE HELD THAT A CONTRACTING OFFICER'S ERROR DETECTION RESPONSIBILITY DOES NOT ENCOMPASS A DUTY TO EXAMINE INDIVIDUAL ITEM PRICES, THIS RULE IS APPLIED IN CASES WHERE THE TOTAL BID PRICE IS NOT OUT OF LINE AND THE CONTRACTING OFFICER IS NOT THERBY PUT UPON INQUIRY BY DISCREPANCIES IN SUB -ITEM PRICES. WHERE AS IN THIS CASE THERE APPEARS TO BE A SUBSTANTIAL DIFFERENCE BETWEEN THE TOTAL PRICES OF THE LOW BID AND OTHERS, WE BELIEVE IT WOULD BE QUITE REASONABLE AND NATURAL FOR THE CONTRACTING OFFICER, BEFORE DECIDING WHETHER VERIFICATION SHOULD BE REQUESTED, TO EXAMINE THE INDIVIDUAL ITEM PRICES TO ASCERTAIN WHETHER THERE APPEARED TO BE A MARKED DISCREPANCY IN ANY PARTICULAR ITEM OR ITEMS WHICH MIGHT SUGGEST A SPECIFIC AREA OF POSSIBLE ERROR TO WHICH THE BIDDER'S ATTENTION SHOULD BE DIRECTED. IN THIS INSTANCE THE MOST LIKELY SUCH AREA WOULD HAVE BEEN THE BUILDING RATHER THAN PAVING, AND WE DOUBT THAT THE PRINCIPLE REFERRED TO WOULD BE HELD TO REQUIRE ANY INQUIRY TO BE DIRECTED SPECIFICALLY TO THE PAVING ITEM.

LOOKING AT THE BIDS IN DETAIL, AS THEY WERE ABSTRACTED ITEM BY ITEM, AND NOTING THAT THE RAMCO PRICES WERE LOWER THAN THE NEXT LOWEST BIDDER'S ON 18 OF THE 26 BID ITEMS AND HIGHER ON 8, AND LOWER THAN THE GOVERNMENT ESTIMATE ON 17 ITEMS, HIGHER ON 6, AND EQUAL ON 2, WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER WAS UNREASONABLE IN CONCLUDING THAT THE OVERALL DIFFERENCES WERE NOT SO GREAT, IN THE LIGHT OF HIS EXPERIENCE WITH SIMILAR PROJECTS IN RECENT YEARS, AS TO REQUIRE VERIFICATION OF THE LOW BID.

EVEN IF RAMCO HAD BEEN ASKED FOR VERIFICATION, WE FIND NO COMPELLING REASON TO CONCLUDE THAT SUCH REQUEST WOULD NECESSARILY HAVE RESULTED IN FULL DISCLOSURE OF THE BASIS OF ITS BID. AS INDICATED ABOVE, THE ONLY BASIS THE CONTRACTING OFFICER WOULD HAVE HAD FOR REQUESTING VERIFICATION WAS THE PRICE DIFFERENTIAL, AND RAMCO WAS FULLY AWARE OF THAT. SINCE IT HAD CHOSEN NOT TO ASK FOR ANY CLARIFICATION OR INTERPRETATION OF THE SPECIFICATIONS BEFORE SUBMITTING ITS BID, AND DID NOT MAKE ANY CLAIM OF ERROR OR MISUNDERSTANDING AFTER HEARING THE OTHER BIDS, WE CANNOT SEE WHY A REQUEST FOR VERIFICATION WOULD HAVE BEEN LIKELY TO CAUSE IT TO DO SO. CLEARLY, IT WOULD HAVE BEEN ALERTED TO ANYTHING OF WHICH IT WAS NOT ALREADY FULLY AWARE.

SINCE IT DELIBERATELY CHOSE TO BID IN THE HOPE OR BELIEF THAT IT WOULD NOT BE REQUIRED TO COMPLY FULLY WITH THE SPECIFICATIONS, AND DID NOT AFTER BID OPENING UNDERTAKE TO ADVISE THE CONTRACTING OFFICER OF ITS POSITION BUT ACCEPTED THE AWARD WITHOUT OBJECTION, WE FEEL THAT RAMCO EFFECTIVELY ESTOPPED ITSELF FROM QUESTIONING THE VALIDITY OF THE CONTRACT AND THAT ITS ATTEMPT TO DO SO NOW, AFTER ITS FAILURE TO HAVE THE CONTRACT INTERPRETED AND ENFORCED AS IT HOPED, COMES TOO LATE.

WE FIND NOTHING IN THE RECORD WHICH REQUIRES A CONCLUSION THAT THE GOVERNMENT DIRECTLY CONTRIBUTED TO THE FORMATION OF RAMCO'S BELIEF, OR WAS IN ANY WAY RESPONSIBLE FOR IT, OR HAD ANY SPECIFIC OR CONSTRUCTIVE KNOWLEDGE OF IT. THE FACT THAT RAMCO USED MANUAL-TYPE EQUIPMENT ON OTHER JOBS UNDER DIFFERENT SPECIFICATIONS WHICH PERMITTED USE OF SUCH EQUIPMENT, AND WAS PERMITTED TO USE TRUCK MIXERS IN THE SUBJECT CASE, DOES NOT IN OUR VIEW PROVIDE AN ADEQUATE OF REASONABLE BASIS FOR ITS ASSUMPTION THAT IT COULD USE EQUIPMENT WHICH WAS NEITHER OF THE GENERAL TYPE CALLED FOR BY THE SPECIFICATIONS NOR ADEQUATE FOR THE PERFORMANCE OF THE PAVING WORK AT THE SPEED SPECIFIED, SO AS TO PRODUCE CONCRETE PAVING OF THE QUALITY REQUIRED.

IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS FOR ANY ADJUSTMENT OF THE CONTRACT PRICE, AND RAMCO'S CLAIM IS THEREFORE DISALLOWED.