[First endorsement] ""To the CHAIRMAN, CONTRACT BOARD: "AUGUST 31, 1939. "As noted in the basic recommendations of award, the total amount of the bid, as accepted, was $801,120. It is believed that item 20A lump-sum bid must stand at $500. The extension in the second column should be corrected accordingly prior to execution. "D. G. SHINGLER, "Captain, Corps of Engineers, United States Army, "Acting, Director of Sanitary Engineering.' [Second endorsement] "Schedule of prices, item 20A (p. 17f), corrected to read "$500." Bidder's figures in the copy of bid attached has not been changed because Public Works Administration expects us to incorporate in the contract an exact copy of the original bid. "W. N. H.' "In your ruling of January 8, 1940 (p. 4, par. 3), you further state: 'In any event, the contractor voluntarily entered into the formal contract of September 15, 1939, which carries provisions for compensation in the lump sum of $500 under item 20A and in the reduced amount of $801,120 for the entire contract work Your attention is called to the following memoranda [italic supplied]: "NOVEMBER 27, 1939. ""To the DIRECTOR OF SANITARY ENGINeering: "Subject: Error in bid and contract claimed by Stiers Bros. Construction Co. "When bids were received for the construction of the west-side diversion sewer, it was observed that Stiers Bros. Construction Co. had inserted for the Jump-sum bid, under item 20A for furnishing and installing two gates, the amount of $500, and extended this amount of $500 to the "Unit price" column. In the "Total amount" column they had inserted $1,000. ""Since the unit-price, whien was a lump-sum bid, governs, I required that the contract show the amount of $500. This contract which included $500 for item 20A, was signed by Stiers Bros. Construction Co. "In their letter to the Board of Commissioners dated November 10, 1939, they claimed that the contract price of $500 is incorrect and in error, and that they actually bid $500 per gate. Their letter is self-explanatory, 'It appears that a mistake has been made and that the price bid for item 20A should have been $1,000. "It is recommended that an adjustment be made in the contract whereby item 20A is changed to $1,000. "HAROLD A. KEMP, “Chief Engineer, Department of Sanitary Engineering.' ""NOVEMBER 28, 1939. ""ENGINEER COMMISSIONER. "Recommending that the amount of item 20-A of the schedule of prices of contract No. 13722, Rock Creek Diversion Sewers, West Side, PWA Docket No. DC 1025-F, Unit 6, Stiers Bros. Construction Co., contractor, be increased from $500 to $1,000. "In the light of the contractor's letter of November 10, addressed to the Commissioners, it appears that his error in interpretation of the wording of the concerned item in the schedule of prices is obvious and reasonable. A photostat of sheet No. 7-F of the schedule of prices, as submitted by the contractor, is attached. Also attached is a photostat of the schedule of proposals received, from which it will be noted that, even with the recommended correction, the successful bidder's price on this item is considerably under any of the other bidders. ""Reference to the Auditor, District of Columbia, is recommended. "J. B. GORDON, "Director of Sanitary Engineering.' "The written contract No. 18722, which was signed by the contractor and the District, contains the following: "ARTICLE 1. Statement of work.-The contractor shall furnish material and perform the work required for the construction and completion of West Side, Rock Creek Diversion Sewers, along the west side of Rock Creek, between the Potomac River and Thirtieth Street NW., to the intersection of Connecticut and Cathedral Avenues NW., Washington, D. C., for the consideration of the following prices: all in strict accordance with the advertisement for bids, the instructions to bidders, the accepted proposal, the general conditions, the detailed specifications, addenda Nos. 1, 2, and 3, hereunto attached, and drawings Nos. 1 to 38, inclusive, which are hereby made part and parcel of this contract to the same extent as if incorporated herein in full.' (Italic supplied.) "This is immediately followed by the prices referred to, and item 20-A reads: Item Description Price 20A For furnishing and installing 2 backwater gates with appurtenances in west side $500 "The accepted proposal referred to in the above article 1 of the written contract and which is thereby made a part of the entire contract is the proposal as submitted by the contractor and without any change thereon and item 20A thereof is as follows: sum. 20A Lump Furnishing and installing 2 backwater gates with appurtenances in west side diversion sewer, at $500 lump sum. "In summary: The original submission stated that the error in the bid was not noticed until after the award had been made, whereas, in reality, it was noted and brought to the attention of the District officials involved in the recommendation of award at the time bids were opened. Secondly, $500 was considered to be the price bid as a result of a decision of the Chief Engineer, Department of Sanitary Engineering (supra, pp. 3 and 4) and without consulting the bidder to determine its actual intention. In the third place, the contract itself provides that the work described shall be done in accordance with the accepted proposal which was made a part and parcel of the contract, and this accepted proposal would seem to indicate clearly the true intent of the bidder. It would appear that the entire contract is at least ambiguous on its face with respect to the price agreed to be paid and that it is permissible to consider evidence of the intention of the parties, and that this is authorized by Brawley v. United States (96 U. S. 168). "In the light of these additional facts and calling particular attention to your decision to the Secretary of the Treasury dated July 28, 1939 (19 Dec. Čom. Gen. 116), your reconsideration of the question whether the Commissioners of the District of Columbia have authority to allow the contractor's claim with respect to item 20A of the contract and make payment of the sum of $500 to him at this time is requested." The additional facts now reported by you show that, before the bid was accepted, the representatives of the District of Columbia noted the fact that although the bidder quoted a lump-sum price of $500 the extended total was shown as $1,000, but there is nothing in the record to indicate that such representatives knew, at that time, that the lump-sum price was intended to be $1,000 and not $500 as stated, and the subsequent action of the contracting officer in accepting the bid and including it in the formal contract as for a lump-sum price of $500 clearly indicates that the contracting officer believed the price of $500 to be the intended lump-sum bid. Secondly, you urge, in effect, that relief should be given the contractor because the sum of $500 was considered to be the bid price without consulting the bidder to determine its actual intention. There is, however, no duty on the part of a contracting officer to act as guardian for a careless bidder; and the contracting officer had no difficulty in construing the bid, which construction ultimately was accepted by the bidder. Furthermore, paragraph 18 of the instructions to bidders specifically provides that "In case of error in the extension of price the unit price will govern.' The unit price in this case was the lump-sum price of $500 and therefore, in accepting such price, the contracting officer acted precisely in accordance with the provisions of the instructions to bidders. You state, also, that the written contract itself appears to be ambiguous because it incorporates the original bid therein by reference. Whatever ambiguity there may have been in the original bid it was cured by the execution of the contract with the provision therein for the payment of a lump-sum price of $500 for the item. Both the contracting officer and the contractor knew, at the time it was executed, that the lump-sum price for the item was to be $500 and not $1,000. Aside from the foregoing it clearly appears that, prior to the signing of the contract, the contractor was advised that the formal documents would show a price of $500, and not $1,000, for item 20A. The contractor admits this, having stated in its letter of November 10, 1939, "In order to expedite matters, we signed our contracts with the knowledge of your ruling on item No. 20A" (that the price would be $500, and not $1,000). In other words, with full knowledge of the facts and circumstances, and of the legal effect of its action, the contractor signed the contract. Under these circumstances, the meaning of the contract is clear, there is no room for interpretation or construction, and the contractor may not be paid more for the item than the $500 it agreed to accept. (Board of Trustees of the National Training School for Boys v. O. D. Wilson Co., Inc., 133 F. (2d) 399. Also, see International Contracting Co. v. Lamont, 155 U. S. 303, 310; Parish v. United States, 8 Wall. 489; Gilbert & Secor v. United States, 8 Wall. 358, 360.) Accordingly, the decision of January 8, 1940, must be, and is, affirmed. Respectfully, LINDSAY C. WARREN, Comptroller General of the United States. OCTOBER 26, 1939. STIERS BROS. CONSTRUCTION CO., Washington, D. C. (Attention of Mr. Gollub.) ་ DEAR SIRS: I am returning herewith the detailed estimate for the construction of the west side Rock Creek sewer, contract No. 13722. This office cannot approve the detailed estimate as submitted inasmuch as the total of $801,620, given in the estimate, does not correspond with the amount of $801,120 in the signed contract. The difference is in item 20A, for furnishing and installing two backwater gates with appurtenances. Under the lump-sum bid for doing this work you showed an amount of $500 and extended this amount in the total column to $1,000. We could not, in preparing the contract, do other than insert the lump-sum price of $500. Since the District of Columbia cannot make any payments on your contract until after the detailed estimate is approved, I suggest that you change the estimate to show the amount of the actual contract, $801,120. Yours very truly, HAROLD A. KEMP, Chief Engineer, Department of Sanitary Engineering. Mr. ELWOOD JOHNSON, WASHINGTON, D. C., October 28, 1939. Washington, D. C. Acting Resident Engineer, Rock Creek Diversion Sewer, (Attention Mr. Harold A. Kemp.) GENTLEMEN: I am returning herewith the detailed estimate for the construction of the West Side Rock Creek Sewer Contract No. 13722 with the change requested on item No. 20A. However, we desire to protest your interpretation of our bid on this item. The unit reads as follows, in the approximate quantities column, lump sum, under items and unit bid price furnishing and installing two backwater gates with appurtenances in West Side Diversion. We filled in the item as $500 per gate, showing our obvious intention by placing $500 in the unit price column, and not in the total amount column, and in view of the fact that there were two gates extending the unit price to $1,000 in the total amount column. Our material quotation for the gates alone not counting labor is over $750. We feel that inasmuch as our intention in the bid is so clear that we sincerely request your consideration and adjustment on this item. Yours very truly, By STIERS BROS. CONSTRUCTION Co., BOARD OF DISTRICT COMMISSIONERS, WASHINGTON, D. C., November 10, 1939. Washington, D. C. GENTLEMEN: In order to expedite matters, we signed our contracts with the knowledge of your ruling on item 20A. We would like to call your attention to our manner of interpreting the item. The item reads, "Furnishing and installing two backwater gates with appurtenances in West Side Diversion Sewer." We interpreted the item as follows: Two backwater gates at $500 per piece, lump sum, $1,000. We wrote that into our bid. If the item had read: "Furnishing and installing backwater gates," then we would admit that your interpretation was correct. However, it reads: "Two backwater gates," and in our bid we bid the item exactly as we read it. We illustrated our intent by the way we extended the item on the two gates. In the amount column, we showed our lump-sum bid. We did not carry the $500 item through the unit and amount column, but extended it to $1,000 in the amount column. We received quotations from three suppliers on the gates: Brown & Brown, McNulty Engineering Co., and the American Rolling Mill Co. If you will take the liberty of contacting any one of these companies for a quotation of these gates, you will find that the material quotations of these gates will range from $1,000 to $1,530 f. o. b. Washington. Besides the actual costs of the gates as shown, please compare our bid on the unit with our competitors. Fitzgerald & Co. bid $2,200 on this item; Delbalso Co., $5,250; Leo Butler, $2,200; and Demmena, $2,000. We will be glad to have Brown & Brown with whom we placed the order for the gates, give you their actual charge to us for these gates and any other information that you may desire. We earnestly request that you reconsider your decision, and hoping to receive your favorable reply, we are Yours very truly, |