B-124503, AUG. 4, 1955

B-124503, AUG. 4, 1955

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1955, WITH ENCLOSURES, RELATIVE TO AN ERROR WHICH EDWIN T. HUGHES, INC., ALLEGES IT MADE IN THE BID ON WHICH CONTRACT NO. DA 41-014-AIV-1262 IS BASED. YOU REQUEST A DECISION AS TO THE ACTION TO BE TAKEN IN VIEW OF THE CONTRACTOR'S REQUEST FOR RELIEF.

IN RESPONSE TO INVITATION NO. E 41-014-55-89, THE FOUR BIDS RECEIVED FOR THE JOB OF FURNISHING CERTAIN ALTERATIONS, INCLUDING THE PAINTING OF N.C.O. FAMILY QUARTERS AT THE WILLIAM BEAUMONT ARMY HOSPITAL, FORT BLISS, TEXAS, WERE $17,466.74 (HUGHES) $22,985, $28,796 AND $33,067. APPARENTLY THE CONTRACTING OFFICER, UPON OPENING THE BIDS ON APRIL 15, 1955, HAD NO REASON TO BELIEVE THAT THERE WAS ANY ERROR IN THE LOW BID; IT WAS NOT OUT OF LINE WITH THE OTHER BIDS--- THE SPREAD BETWEEN THE BIDS APPEARS TO BE APPROXIMATELY THE SAME IN EACH CASE--- AND THE CONTRACTING OFFICER STATES THAT, WHILE THEY COVERED A CONSIDERABLE RANGE, ALL THE BIDS WERE IN EXCESS OF THE GOVERNMENT'S ESTIMATE OF $13,400 FOR THE JOB. IN VIEW THEREOF, AND SINCE THE CORPORATION WAS THE LOW BIDDER, IT WAS AWARDED THE CONTRACT ON APRIL 26, 1955.

BY LETTER DATED MAY 6, 1955, THE CONTRACTOR ADVISED THAT IT HAD MADE AN ERROR IN CALCULATING ITS BID PRICE, AS A RESULT OF WHICH ITS LUMP SUM PRICE ON EACH OF THE FOUR ITEMS AND ITS AGGREGATE BID PRICE FAILED TO INCLUDE THE COST OF ANY WORK WHATSOEVER ON BUILDING NO. 7191. ITS UNVERIFIED WORKSHEETS WERE FORWARDED TO SUBSTANTIATE ITS ALLEGATION OF ERROR. IT CLAIMS THAT THE OMITTED WORK WHICH IT NOW FINDS IS REQUIRED UNDER LOT NO. 1, ALTERNATES NOS. 1 AND 2, AND LOT NO. 2 TO BE PERFORMED IN BUILDING NO. 7191 AMOUNTS TO $1,903.16, AND REQUESTS THAT THE CONTRACT PRICE BE INCREASED BY THAT AMOUNT, OR FROM $17,466.74 TO $19,369.90.

THE CONTRACTOR ATTRIBUTES ITS ALLEGED ERROR TO THE GOVERNMENT'S OMISSION OF BUILDING NO. 7191 FROM THE LIST OF THE BUILDINGS INSERTED IN PARAGRAPH SW-2, ENTITLED "LOCATION OF THE WORK," AND STATES THAT IT THEREFORE ASSUMED THAT NO WORK WHATSOEVER WAS REQUIRED ON BUILDING NO. 7191, AND COMPUTED ITS BID ACCORDINGLY.

THE WRITTEN SPECIFICATIONS CLEARLY PROVIDE THAT THE WORK SHALL BE PERFORMED IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES AND APPLICABLE DRAWINGS AND SUBJECT TO THE TERMS AND CONDITIONS OF THE CONTRACT. ACCORDINGLY, THE AMOUNT AND LOCATION OF THE WORK SHOULD NOT HAVE BEEN DETERMINED WITHOUT CONSULTING THE CONTENTS OF ALL THE FOREGOING DOCUMENTS WHICH ARE SPECIFICALLY DESIGNATED UNDER PARAGRAPH SW-3 AS "A PART OF THE CONTRACT FOR THIS WORK.'

IN PARAGRAPH SW-1 OF PART I, ENTITLED STATEMENT OF THE WORK, IT IS CLEARLY STATED THAT "THE WORK IN LOT NO. 1, BASE BID, IN GENERAL, CONSISTS OF REMODELING THE KITCHENS IN 10 N.C.O. FAMILY QUARTERS * * *," THE REMOVAL AND REPLACEMENT OF SINKS CABINETS AND FLOOR COVERINGS,"* * * AND REPAINTING THE KITCHEN. ALSO INCLUDED IN THE BASE BID IS THE PAINTING OF THE KITCHEN IN BLDG. 7194.' OBVIOUSLY, SUCH LANGUAGE CLEARLY INDICATES THAT THE MAJOR PORTION OF THE WORK OF LOT NO. 1, BASE BID, WAS REQUIRED TO BE PERFORMED IN TEN BUILDINGS OTHER THAN BUILDING NO. 7194, AND THAT ONLY THE PAINTING OF THE KITCHEN OF BUILDING NO. 7194 IS REQUIRED. SUB- PARAGRAPH SC-8A (1) (H) REFERRED TO BY THE CONTRACTOR ALSO CLEARLY INDICATES THAT BUILDING NO. 7194 WAS TO BE TREATED SEPARATELY AND NOT AS ONE OF THE TEN BUILDINGS INTENDED FOR THE COMPLETE KITCHEN REMODELING WORK SPECIFIED IN PARAGRAPH SW-1.

THAT THERE WAS A TOTAL OF ELEVEN FAMILY QUARTERS, INCLUDING BOTH BUILDINGS NOS. 7191 AND 7194, IS APPARENT FROM A CASUAL EXAMINATION OF DRAWING NO. WB-304. SHEET 1 THEREOF, ENTITLED LOCATION PLAN, DELINEATES THE ELEVEN FAMILY QUARTERS--- BUILDINGS NOS. 7183 THROUGH 6192 ALIKE, AND NO. 7194 OF DIFFERENT DESIGN--- IN WHICH THE REMODELING WORK BY THE PROJECT IS REQUIRED. SHEET 2 CONTAINS, IN ADDITION TO DETAILED SKETCHES OF THE WORK, THE GENERAL NOTES OUTLINING THE MAIN PART OF THE CONTRACT WORK CALLED FOR UNDER LOT NO. 1, THE WORK CALLED FOR UNDER ALTERNATES NOS. 1 AND 2, AND THE FLOOR PLAN WITH THE IDENTIFYING NUMBERS OF THE TEN IDENTICAL BUILDINGS SPECIFICALLY INCLUDING BUILDING NO. 7191 WHEREIN THE MAIN KITCHEN ALTERATION WORK OF LOT NO. 1, BASE BID, IS REQUIRED TO BE PERFORMED. ON SHEET 3, A LIST OF THE BUILDINGS, INCLUDING BUILDING NO. 7191, IS SHOWN IN THE PAINTING SCHEDULE FOR LOT NO. 2.

IN VIEW OF SUCH CLEAR STATEMENTS AS TO THE AMOUNT OF THE WORK AND THE LOCATION THEREOF WITH RESPECT TO THE ELEVEN FAMILY QUARTERS SPECIFICALLY INCLUDING BUILDING NO. 7191, THE OMISSION OF THE LATTER BUILDING NUMBER FROM THE LIST OF BUILDINGS IN PARAGRAPH SW-2 SHOULD HAVE BEEN REGARDED BY THE CORPORATION, OR ANY OTHER BIDDER, IN THE EXERCISE OF ORDINARY CARE AS UNINTENTIONAL OR IMMATERIAL IN ANY EVENT SINCE IT IS OBVIOUSLY INCONSISTENT WITH THE PRECEDING PARAGRAPH, THE APPLICABLE DRAWINGS AND THE CLEAR INTENT AS EXPRESSED IN THE CONTRACT AS A WHOLE. CERTAINLY IF PARAGRAPH SW-2 HAD BEEN COMPLETELY OMITTED, THE CONTRACT STILL WOULD BE CLEAR AS TO THE INCLUSION OF BUILDING NO. 7191 IN THE GROUP OF BUILDINGS IN WHICH WORK WAS TO BE PERFORMED. IN OTHER WORDS, PARAGRAPH SW-2 WAS NOT AN IMPORTANT OR ESSENTIAL PARAGRAPH OF THE CONTRACT. THE LOCATION OF THE WORK IS CLEAR WITHOUT IT.

IT IS THUS REASONABLE TO CONCLUDE THAT THE CONTRACTOR DID NOT READ WITH DUE CARE THE ENTIRE PLANS AND SPECIFICATIONS. IF IT HAD DONE SO, IT IS NOT APPARENT WHY IT WOULD DECIDE TO RELY SOLELY ON THE LISTING OF THE BUILDINGS IN A SMALL PARAGRAPH WHICH IS OBVIOUSLY REPUGNANT TO THE GOVERNMENT'S INTENTION WITH RESPECT TO THE EXTENT AND LOCATION OF THE WORK SO CLEARLY EXPRESSED IN THE REST OF THE SPECIFICATIONS AND PLANS. THERE IS NOTHING TO INDICATE THAT ANY OTHER BIDDER WAS MISLED OR CONFUSED IN ANY WAY BY THE SHORT LIST OF BUILDINGS IN PARAGRAPH SW 2. IN FACT THE RECORD DISCLOSES THAT AT LEAST ONE BIDDER UPON BEING CONTRACTED STATED THAT ITS BID WAS BASED ON THE WORK AS SPECIFIED FOR THE ELEVEN BUILDINGS. CONSEQUENTLY, THE CONCLUSION IS WARRANTED THAT IF THE CONTRACTOR ERRED IN PREPARING ITS BID ITS MISTAKE WAS DUE SOLELY TO ITS OWN NEGLIGENCE IN FAILING TO EXERCISE THAT DEGREE OF CARE, IN DETERMINING THE AMOUNT OF THE WORK REQUIRED, THAT REASONABLY COULD BE EXPECTED FROM AN ORDINARY PRUDENT PERSON UNDER THE CIRCUMSTANCES.

THE RESPONSIBILITY FOR THE PREPARATION AND SUBMISSION OF A BID IS, OF COURSE, THAT OF THE BIDDER, AND A MISTAKE IN BID TO BE AVAILABLE IN RELIEVING HIM UNDER A BID ACCEPTED WITHOUT ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR MUST NOT HAVE ARISEN FROM NEGLIGENCE OR A FAILURE TO EXERCISE AT LEAST THAT DEGREE OF DILIGENCE WHICH FAIRLY MAY BE EXPECTED FROM A REASONABLE PERSON. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61; 20 COMP. GEN. 652.

THE ALLEGATION OF ERROR BY THE BIDDER IN THIS CASE WAS NOT RECEIVED UNTIL TEN DAYS AFTER ITS BID HAD BEEN ACCEPTED IN GOOD FAITH. THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR RELEASING EDWIN T. HUGHES, INC., FROM ITS OBLIGATION UNDER ITS ACCEPTED BID AND THE RESULTANT CONTRACT.

THE PAPERS, WITH THE EXCEPTION OF THE STATEMENT OF THE CONTRACTING OFFICER DATED MAY 9, 1955, ARE RETURNED.