Dakota Tribal Industries v. United States

40 Cont. Cas. Fed. 76,867, 34 Fed. Cl. 593, 1995 U.S. Claims LEXIS 227, 1995 WL 734644
United States Court of Federal Claims·Decided December 5, 1995·No. No. 94-1051 C·Published·Cited by 3 cases

Opinion

OPINION

HODGES, Judge.

Plaintiff seeks reformation of a contract with the General Services Administration to correct a unilateral mistake in its bid. After trial, we determined that the facts of this case could not support this type of equitable remedy. We must rule for defendant.

FACTS

Plaintiff is a small business contractor pursuant to the section 8(a) set-aside program of the Small Business Administration. See 15 U.S.C. § 687(a). It submitted a bid in response to a 1992 General Services Administration solicitation to provide chain saw chaps. Plaintiffs offer listed the total cost per unit for each size of chaps. These prices were based on estimates plaintiff received from material suppliers.

One of the materials required by the solicitation was “woven Aramid cloth.” Plaintiff requested an estimate from Southern Mills, Inc. on Aramid cloth meeting the solicitation specifications. The material was described by plaintiff as ‘WOVEN ARAMID CLOTH CONFORMING TO 6170-40, FINISH SCOURED OR UNSCOURED, COLOR NATURAL, 60" WIDTH.” [Emphasis in original]. Southern Mills’ representative entered $7.58 per yard for this .request. The response was sent to plaintiff by facsimile with a credit application. The facsimile cover sheet reads “Lead time for 1530 yds 60” Kevlar Nonwoven chain saw chap material (3.5 osy) would be 3 weeks from receipt of order. Price is $7.58 yard net____” A statement of conformance included in the facsimile transmission notes, “Southern Mills’ 3.5 osy Kevlar Chain Saw Chap material meets U.S. Forestry Service Specification 6170-4D, 02/81.” Two other suppliers quoted plaintiff prices of $15 and $19.82 per yard for Aramid cloth. Plaintiff chose Southern Mills and made its bid based on this price.

During performance, the supplier’s invoices showed that the cost of material was much greater than $7.58 per yard; the cost was actually $19.78 per yard. Southern Mills stated that it had misunderstood the solicitation requirement and had quoted a price for the wrong material — nonwoven Aramid cloth.

Plaintiff requested an equitable adjustment from the contracting officer in 1993 because of the mistake in its bid. The contracting officer denied the request and plaintiff filed suit in this court seeking reformation of the contract to compensate for the extra costs.

Plaintiff argues that the government should have been on notice that its bid was in error, and that it had a duty under those circumstances to verify the bid. Defendant states that plaintiffs bid mistake is not the type for which the government should be liable. Even if it were, defendant contends there could be no notice because the contracting officer reviewed the bid as required by the Federal Acquisition Regulations and determined that it was a fair and reasonable price.

DISCUSSION

A government contract may be reformed or rescinded if the contracting officer accepts a bid with actual or constructive knowledge that the bid contains an error. See BCM Corp. v. United States, 2 Cl.Ct. 602 (1983). This equitable remedy is not available in every case. The mistake must be of the type that calls for such relief, and the contracting officer must have actual or constructive notice of the mistake at the time the bid was accepted. Bromley Contracting Co., Inc. v. United States, 794 F.2d 669, 671-72 (Fed.Cir.1986). See also Liebherr Crane Corp. v. United States, 810 F.2d 1153, 1157 (Fed.Cir.1987).

I.

A “clear cut clerical or arithmetical error, or misreading of specifications” may entitle the bidder to relief. Ruggiero v. United States, 420 F.2d 709, 190 Ct.Cl. 327, 335 (1970). Errors in judgment are noncompensable. Ruggiero, 420 F.2d 709, 190 Ct.Cl. at 335; Aydin Corp. v. United States, 669 [596]*596F.2d 681, 229 Ct.Cl. 309, 314 (1982); BCM Corp., 2 Cl.Ct. at 610.

When the bid submitted differs from the one intended, it cannot be characterized as a clerical or arithmetical error. We must decide whether this case presents a misreading of the specifications, or an error in judgment. An example of the former may be the omission of a cost item or a mistaken belief that the specifications do not call for certain work. See Bromley Contracting, 794 F.2d at 672. The latter occurs where the bidder has the facts necessary to make the proper conclusion but, because of improper assumptions or faulty assessments of those facts, makes a bad business decision. Such a “conscious gamble with known risks” is noncompensable. Liebherr Crane, 810 F.2d at 1157. See Goldberger Foods, Inc. v. United States, 23 Cl.Ct. 295, 311-12 (1991) (listing examples of error in judgment).

A misreading of specifications may occur where an ambiguity exists. In this case, the specifications were clear; they called for woven Aramid cloth. Correspondence from Southern Mills stated that it was supplying nonwoven material. Plaintiff verified the quoted price but apparently did not question the type of Aramid cloth. At the time it bid, plaintiff did not appreciate the technical differences between woven and nonwoven cloth. Its limited knowledge is not an excuse, however. A bidder is liable for the mistakes of its suppliers. Hankins Const. Co. v. United States, 838 F.2d 1194 (Fed.Cir.1988).

If plaintiff had sought quotations only from Southern Mills, the mistake might have been more understandable, though not necessarily excusable. But plaintiff had the benefit of quotations from three companies for Aramid cloth. A comparison of the quotations should have raised questions about the material and the price quoted by Southern Mills. Its quote was half that of the next-lowest solicited quotation. The price disparity was obvious, if to plaintiff the reason for it may not have been.

Plaintiff’s bid was the bid that it intended to submit. It should have been alerted to potential problems with the quote. Plaintiff made a conscious decision to use the lowest-priced cloth, perhaps believing that it was getting a bargain. In any event, plaintiff knew before the bidding period closed that this quote was much less than the others.

We must conclude from the facts and circumstances of plaintiff’s bid preparation that its mistake was an error in judgment for which equitable relief is not available. It was a business decision for which a bidder must bear the risk, not the type of mistake for which a party to' a contract is allowed an equitable remedy.

II.

Even if the mistake were clerical or otherwise excusable, the equitable relief sought in this case is available only where the contracting officer has reason to know that the bid is mistaken.

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Dakota Tribal Industries v. United States, 40 Cont. Cas. Fed. 76,867, 34 Fed. Cl. 593, 1995 U.S. Claims LEXIS 227, 1995 WL 734644 (uscfc 1995).

40 Cont. Cas. Fed. 76,867 (Dakota Tribal Industries v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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