B-180283, APR 11, 1974

B-180283, APR 11, 1974

WHERE BIDDER WAS ORALLY REQUESTED TO VERIFY BID PRIOR TO AWARD BUT DECLINED TO SUBMIT EVIDENCE IN SUPPORT OF ADMITTED ERROR TO JUSTIFY WITHDRAWAL OF BID, SUBSEQUENT REQUEST FOR INCREASE IN CONTRACT PRICE TO COVER ERROR ORIGINALLY SUSPECTED MAY NOT BE GRANTED SINCE CONTRACTOR WAS PROVIDED AMPLE OPPORTUNITY BEFORE AWARD TO WITHDRAW BID UPON SUBMISSION OF EVIDENCE OF ERROR. ALSO, CONTRACT WAS NOT INDUCED BY UNCONSCIONABLE CONDUCT ON PART OF GOVERNMENT OR BY PROMISES OF SUBSEQUENT RELIEF.

TO R. E. STEPHENSON:

ON JUNE 1, 1973, INVITATION FOR BIDS (IFB) NO. N6474-73-B-5777 WAS ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, FOR THE PAINTING OF FIVE BUILDINGS. IN RESPONSE, R.E. STEPHENSON (STEPHENSON) OFFERED TO PERFORM THE PAINTING WORK FOR $6,450. FIVE OTHER BIDS RANGED FROM $7,918 TO $15,885. THE GOVERNMENT'S ESTIMATE WAS $15,500.

IN VIEW OF THE DISPARITY BETWEEN STEPHENSON'S BID AND THE OTHER BIDS ON THE PAINTING WORK, MR. STEPHENSON WAS ORALLY REQUESTED TO VERIFY HIS BID. IT IS REPORTED THAT PRIOR TO AWARD, MR. STEPHENSON VISITED THE CONTRACTING OFFICE AND STATED THAT HIS PRICE WAS ACCEPTABLE TO HIM EVEN THOUGH HE HAD LEFT OUT SOME COSTS; THAT MR. STEPHENSON WAS ADVISED THAT HE COULD REQUEST WITHDRAWAL OF HIS BID UPON SUBMITTING EVIDENCE OF ERROR; AND THAT MR. STEPHENSON REPLIED THAT HE NEEDED THE JOB TO KEEP HIS MEN EMPLOYED AND THAT WITH CONCENTRATED EFFORT HE COULD COMPLETE THE JOB WITHOUT LOSS.

IN A LETTER DATED DECEMBER 10, 1973, TO OUR OFFICE, MR. STEPHENSON STATED THAT IN COMPUTING HIS BID PRICE FOR THE JOB, HE FAILED TO INCLUDE CERTAIN AMOUNTS FOR OVERHEAD AND PROFIT WHICH, IF ADDED TO THE BID PRICE SUBMITTED, WOULD HAVE TOTALED $8,159. MR. STEPHENSON REQUESTED THAT THE CONTRACT PRICE OF THE JOB BE INCREASED FROM $6,450 TO $8,159. IF THE CONTRACT PRICE OF THE WORK IS INCREASED TO $8,159, AS REQUESTED BY MR. STEPHENSON, SUCH PRICE WILL BECOME THE SECOND LOWEST ON THE WORK INVOLVED. IN SUPPORT OF THE ALLEGATION OF ERROR, MR. STEPHENSON SUBMITTED HIS ORIGINAL ESTIMATE SHEETS WHICH DO NOT SHOW ANY AMOUNTS FOR OVERHEAD AND PROFIT.

AS INDICATED ABOVE, MR. STEPHENSON WAS PROVIDED WITH AMPLE OPPORTUNITY PRIOR TO AWARD TO REQUEST PERMISSION TO WITHDRAW HIS BID ON THE BASIS OF ERROR. HOWEVER, MR. STEPHENSON CHOSE NOT TO ATTEMPT TO WITHDRAW THE BID BUT TO ACCEPT THE AWARD OF THE CONTRACT FOR THE BID PRICE OF $6,450 WITH THE FULL KNOWLEDGE THAT HIS BID PRICE WAS $1,709 LESS THAN HIS INTENDED BID PRICE OF $8,159, WHICH PRICE WOULD HAVE MADE HIM THE SECOND LOWEST BIDDER. IT WAS NOT UNTIL MR. STEPHENSON STATED THAT WITH CONCENTRATED EFFORT HE COULD COMPLETE THE JOB WITHOUT LOSS THAT THE CONTRACTING OFFICER CONSIDERED THE BID PROPER FOR AWARD.

IN THE CIRCUMSTANCES, SINCE THE CONTRACT WAS NOT INDUCED BY ANY UNCONSCIONABLE CONDUCT ON THE PART OF THE GOVERNMENT OR BY PROMISES FOR SUBSEQUENT RELIEF, MR. STEPHENSON CAN RECOVER NO MORE THAN THE CONTRACT PRICE. THE MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 CT. CL. 699 (1945), CERTIORARI DENIED 325 U.S. 866 (1945); AND BOARD OF TRUSTEES OF NATIONAL TRAINING SCHOOL FOR BOYS V. O.D. WILSON CO., INC., 133 F.2D. 399 (1943).

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR GRANTING ANY PART OF THE ADDITIONAL COMPENSATION REQUESTED BY MR. STEPHENSON.