B-162811, DEC. 22, 1967

B-162811, DEC. 22, 1967

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 24, 1967, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY THE FORD CONSTRUCTION CO., INC., TO HAVE BEEN MADE IN ITS BID UPON WHICH FOREST SERVICE CONTRACT NO. 50-377 IS BASED.

THE REGIONAL FORESTER, UNITED STATES FOREST SERVICE, OGDEN, UTAH, BY INVITATION NO. R4-66-70 REQUESTED BIDS FOR FURNISHING ALL LABOR AND MATERIALS AND FOR PERFORMING ALL WORK NECESSARY FOR THE CONSTRUCTION OF THE BOOTLEG CAMPGROUND, ASHLEY NATIONAL FOREST, DAGGETT COUNTY, UTAH. THE WORK TO BE PERFORMED WAS DIVIDED INTO FIVE ITEMS AND SUCH ITEMS WERE FURTHER DIVIDED INTO 53 SUBITEMS. PROSPECTIVE BIDDERS WERE ADVISED THAT ONLY ONE AWARD WOULD BE MADE TO THE LOWEST RESPONSIVE BIDDER ON THE COMBINED TOTALS OF ITEMS I, II, III, IV, AND V, PLUS ANY OF THE OPTIONAL ITEMS SELECTED. IN RESPONSE, THE FORD CONSTRUCTION CO., INC., SUBMITTED A BID DATED APRIL 24, 1966, OFFERING TO PERFORM THE WORK COVERED BY ITEMS I THROUGH V FOR THE AGGREGATE AMOUNT OF $302,000. THE AGGREGATE LOW BID OF THE FORD CONSTRUCTION CO., INC., ON ITEMS I THROUGH V, AND CERTAIN OPTIONAL ITEMS, AS MODIFIED BY NEGOTIATED CHANGES PRIOR TO AWARD, WAS ACCEPTED ON MAY 13, 1966, IN THE AMOUNT OF $301.875.

IN A LETTER DATED JULY 17, 1967, FORD ADVISED THE FOREST SERVICE THAT IT HAD MADE AN ERROR IN ITS BID ON ITEM NO. 650-2,"SAWED TIMBER, HYDRANT - FOUNTAIN, WITH HOSE BIB FAUCET; " THAT IT HAD INTENDED TO QUOTE A PRICE OF $130 EACH FOR 20 UNITS INSTEAD OF $30 EACH FOR THAT ITEM; AND THAT ITS INTENDED BID PRICE WAS BASED ON A UNIT PRICE QUOTATION OF $95.53 RECEIVED FROM ITS SUBCONTRACTOR, W.A. HARMON CONSTRUCTION CORP. FORD REQUESTED THAT THE CONTRACT UNIT PRICE OF ITEM NO. 650-2 BE INCREASED FROM $30 TO $130 FOR A TOTAL INCREASE OF $2,000. IN SUPPORT OF ITS ALLEGATION OF ERROR, FORD SUBMITTED A COPY OF THE QUOTATION RECEIVED FROM ITS SUBCONTRACTOR. BY LETTER DATED AUGUST 29, 1967, FORD ADVISED THAT IT WAS UNABLE TO LOCATE THE WORKING PAPERS USED IN COMPUTING ITS BID PRICE FOR THE PROJECT.

THE ABSTRACT OF BIDS SHOWS THAT THE EIGHT AGGREGATE BIDS RECEIVED ON ITEMS I THROUGH V AND OPTIONAL ITEMS A, B, C, D, AND E RANGED FROM FORD'S BID OF $302,000 TO $373,366.91. THE GOVERNMENT ENGINEER'S ESTIMATE FOR THE TOTAL JOB WAS $286,027.50. BIDS ON ITEM NO. 650-2 RECEIVED FROM THE SEVEN OTHER BIDDERS RANGED FROM $60 TO $120, AND THE GOVERNMENT ESTIMATE FOR THIS ITEM WAS $50 EACH. ASSUMING THAT A SUBSTANTIAL DIFFERENCE EXISTED BETWEEN FORD'S BID AND THE OTHER BIDS ON THE ITEM IN QUESTION, THAT FACTOR ALONE IS NOT CONTROLLING UNDER THE CIRCUMSTANCES OF THIS CASE. AS PREVIOUSLY POINTED OUT, THE INVITATION FOR BIDS REQUESTED BIDS FOR EACH SUBITEM AND A TOTAL BID FOR EACH OF THE FIVE ITEMS WHICH WAS TO BE REFLECTED IN AN AGGREGATE TOTAL. WHILE EXCEPTIONS HAVE BEEN MADE IN CERTAIN CIRCUMSTANCES NOT HERE PRESENT, IT IS THE GENERAL RULE THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. SEE 17 COMP. GEN. 534; 42 ID. 383; AND ALLIED CONTRACTORS, INC. V. UNITED STATES, 159 CT. CL. 548. THE CONTRACTING OFFICER HAS STATED THAT HE WAS NOT ON CONSTRUCTIVE NOTICE OF A MISTAKE IN FORD'S BID PRIOR TO THE AGGREGATE AWARD. IT IS OUR VIEW THAT THE DIFFERENCE BETWEEN THE AGGREGATE BID OF FORD AND THOSE OF OTHER BIDDERS WAS NOT SUFFICIENTLY GREAT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE CLAIMED MISTAKE.

ATTENTION IS INVITED TO THE CASE OF ALLIED CONTRACTORS, INC. V. UNITED STATES, SUPRA. IN THAT CASE THE INVITATION FOR BIDS PROVIDED THAT THE WORK INVOLVED WOULD "BE AWARDED AS A WHOLE TO ONE BIDDER.' THERE WAS A GREAT DISCREPANCY BETWEEN THE PLAINTIFF'S BID AND THE OTHER BIDS ON ONE ITEM. HOWEVER, THE COURT FOUND THAT THE VARIANCE WAS NOT SUCH AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF ERROR SINCE HIS ATTENTION WAS DIRECTED PRIMARILY TO THE OVERALL BID, AND SINCE ON SUCH BASIS THE PLAINTIFF'S BID WAS IN LINE WITH OTHERS, THERE WAS NOTHING TO MAKE THE CONTRACTING OFFICER SUSPECT A MISTAKE HAD BEEN MADE AND THE PLAINTIFF'S PETITION WAS DISMISSED.

THE ACCEPTANCE OF THE BID OF FORD WAS MADE IN GOOD FAITH--NO ERROR HAVING BEEN ALLEGED UNTIL MORE THAN 14 MONTHS AFTER THE DATE OF THE AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE EDWIN DOUGHERTY AND M. H. OGDEN V. UNITED STATES, 102 CT. CL. 249, 259; AND SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, 507.

FURTHERMORE, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS UPON FORD. FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 CT. CL. 120, 163. IF FORD INADVERTENTLY USED THE WRONG FIGURE IN ITS BID FOR ITEM NO. 650-2, SUCH ERROR WAS DUE TO ITS OWN NEGLIGENCE OR OVERSIGHT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--NOT MUTUAL--AND THEREFORE, THE CORPORATION IS NOT ENTITLED TO RELIEF. SEE 40 COMP. GEN. 326, 332.

ACCORDINGLY, THERE IS NO LEGAL BASIS TO AUTHORIZE THE RELIEF REQUESTED BY THE CONTRACTOR.