Manloading & Management Assoc., Inc. v. United States

• Decision Date: 16 June 1972
• Docket Number: No. 48-71.,48-71.
• Citation: 198 Ct. Cl. 628,461 F.2d 1299
• Parties: MANLOADING & MANAGEMENT ASSOCIATES, INC. v. The UNITED STATES.
• Court: U.S. Claims Court

198 Ct. Cl. 628, 461 F.2d 1299 (1972)

MANLOADING & MANAGEMENT ASSOCIATES, INC. v. The UNITED STATES.

No. 48-71.

United States Court of Claims.

June 16, 1972.

William H. Pattison, Jr., Bethesda, Md., attorney of record, for plaintiff.

Russell W. Koskinen, Washington, D. C., with whom was Asst. Atty. Gen. L. Patrick Gray, III, for defendant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA and KUNZIG, Judges.

COWEN, Chief Judge:

This contract case is before the court on the parties' cross-motions for summary judgment. The material facts are not in dispute. On April 8, 1970, the Department of Housing & Urban Development (HUD) solicited bids on a contract for the conversion of approximately 3,000,000 Federal Housing Administration home mortgage records to a magnetic tape storage and retrieval system.

The Government knew that it would take two years to complete the contract and that very little of the work could be completed by the end of the fiscal year in which the contract would be awarded. However, because renewals of the contract would be subject to the availability of funds appropriated for that purpose, the invitation for bids contained the following provision, which became a part of the contract:

III. PRODUCTION REQUIREMENTS AND PERIOD OF PERFORMANCE

A. The Government anticipates that the work to be performed under this contract cannot be completed until Fiscal Year 1972. However, because of fiscal year limitations on funds, the contract to be awarded under this solicitation covers work to be performed through June 30, 1970.

B. This contract is renewable, at the option of the Government, by the Contracting Officer giving written notice of renewal to the Contractor, as specified below. If the Government exercises this option for renewal, the unit price shall be the same as in the initial procurement and the contract as renewed shall be deemed to include this option provision. However, the total duration of this contract, including the exercise of any options under this clause, shall not extend beyond June 30, 1972.

* * * * * *

In the latter part of April 1970, prior to the submission of bids, HUD held a pre-award bidders' conference which was attended by plaintiff and other prospective bidders. The contracting officer designated S. J. Scala as the Government's representative at the conference. In light of the option clause, supra, and because the solicitation for bids was made on April 8, 1970, with the current fiscal year about to expire in June 1970, the prospective bidders at the conference were quite concerned about bidding on a project contemplated to be completed in fiscal year 1972. According to the uncontroverted affidavit of the president of plaintiff corporation, who personally attended the conference:

* * * Mr. Scala, in response to a direct question inquiring as to the meaning and the intent of the option provisions of Sub-paragraph B under Section III, Production Requirements and Period of Performance, of the subject invitation to bid, advised those prospective bidders present that it was intended to afford the Government an option to terminate the agreement at the conclusion of any fiscal year subsequent to the letting of the contract in the event that funds were not appropriated to permit completion of the contract, but that any prospective bidder should be assured that funds were available and that there would be no question about the renewal of the contract for the fiscal year beginning July 1, 1970. Emphasis supplied.

Relying on Mr. Scala's assurance that the contract would be renewed and would continue at least for the next fiscal year beginning in July 1970, plaintiff prepared and submitted its bid. A total of 12 bids were received and opened by the Government on April 29, 1970. Network Information Systems, Inc., was the lowest bidder, followed by plaintiff. On May 14, 1970, the contracting officer notified Network that its bid had been rejected as "unreasonably low and nonresponsive" and consequently the contract was awarded to plaintiff on the same date. Plaintiff immediately began to recruit and train personnel and to purchase supplies and material for the performance of the contract. By June 30, 1970, plaintiff had incurred substantial expense and had completed a portion of the contract.

Network protested its loss of the award and this resulted in a decision rendered by the Comptroller General. Comp. Gen. B-169824 (June 26, 1970) (unpublished). The Comptroller General, believing that the specifications were ambiguous, recommended that HUD not exercise its option to renew plaintiff's contract for the next fiscal year, but instead, that HUD reprocure under revised specifications. This was done and new bids on a substantially identical contract were solicited on July 8, 1970. The new contract was awarded to Network, which again was the lowest bidder.

Following the award to Network, plaintiff brought suit in this court alleging that the Government breached its obligation to renew the contract for the next fiscal year beginning in July 1970. In short, plaintiff contends that it is entitled to rely on what it was told at the bidders' conference, i. e., "that there would be no question about the renewal of the contract for the fiscal year beginning July 1, 1970".

Defendant contends that the language of the option clause, supra, gives the Government an unrestricted right to renew. Defendant does not deny plaintiff's statement of what took place at the bidders' conference, but characterizes the episode as pre-contract negotiations which are not binding on the Government because they were not incorporated into the written contract. Specifically, defendant relies in part on the following exculpatory language found in the solicitation:

VII. CONDITIONS AFFECTING THE WORK

Bidders should visit the site and take such other steps as may be reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Failure to do so will not relieve bidders from responsibility for estimating properly the difficulty or cost of successfully performing the work. The Government will assume no responsibility for any understanding or representations concerning conditions made by any of its officers or agents prior to the execution of the contract, unless included in the invitation for bids, the specifications, or related documents. * * * Emphasis supplied.

Defendant asserts that the italicized portion of the language quoted above absolves the Government of the statements made by Mr. Scala at the bidders' conference. We disagree. Taken by itself, the italicized language appears to exculpate the Government. However, when examined in context, it is apparent that the pertinent language is not applicable to the factual setting before us. Clearly, the exculpatory language is meant to apply only to representations concerning "the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof."

Similarly, defendant relies on the Solicitation Instructions and Conditions document in the invitation, which reads:

3. EXPLANATION TO OFFERORS. Any explanation desired by an offeror regarding the meaning or interpretation of the solicitation, drawings, specifications, etc., must be requested in writing and with sufficient time allowed for a reply to reach offerors before the submission of their offers. Oral explanations or instructions given before the award of the contract will not be binding. Any information given to a prospective offeror concerning a solicitation will be furnished to all prospective offerors as an amendment of the solicitation, if such information is necessary to

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