McCarty Corporation v. United States

• Decision Date: 19 June 1974
• Docket Number: No. 282-72.,282-72.
• Citation: 499 F.2d 633
• Parties: The McCARTY CORPORATION v. The UNITED STATES.
• Court: U.S. Claims Court

499 F.2d 633 (1974)

The McCARTY CORPORATION v. The UNITED STATES.

No. 282-72.

United States Court of Claims.

June 19, 1974.

William D. Bryce, Austin, Tex., attorney of record, for plaintiff.

Thomas W. Petersen, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant.

Before COWEN, Chief Judge, and SKELTON and KUNZIG, Judges.

OPINION

PER CURIAM:

This case comes before the court on defendant's exceptions to the recommended decision filed by Senior Trial Judge Mastin G. White on September 21, 1973 pursuant to Rule 134(h). The court has considered the case on the briefs and oral argument of counsel. Since the court agrees with the decision, as hereinafter set forth,^* it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is entitled to recover and judgment is entered that plaintiff recover of and from the United States the sum of four thousand two hundred dollars ($4,200).

OPINION OF TRIAL JUDGE

WHITE, Senior Trial Judge:

The petition in this case alleges that the defendant (acting through the Corps of Engineers, U.S. Army) wrongfully awarded to a third party, Morris Plumbing Company, Inc., a contract for the performance of certain construction work and the air-conditioning of 32 existing dormitories for airmen at Sheppard Air Force Base, Texas; that the contract should have been awarded to the plaintiff; and that the plaintiff sustained damages as a result of the defendant's wrongful action.

Bids on the work referred to in the preceding paragraph were solicited in an invitation for bids ("IFB") which the Fort Worth District of the Corps of Engineers issued on January 21, 1971. The IFB called for itemized bids on three separate items of work and for a total bid; and prospective bidders were informed that they must bid on all three items. Item 1 was described in the IFB as "Central Chilling Plant Building, complete"; item 2 was described as "Air Conditioning for 32 existing buildings"; and item 3 was described as "Grading, Paving, Sidewalks, Utilities, Establishment of Turf, and all other work not separately listed."

The plaintiff was one of 11 companies that submitted bids in response to the IFB. Prior to the submission of the plaintiff's bid, the plaintiff's president, W. H. McCarty, instructed a subordinate, Luther J. Martin, to prepare the bid on behalf of the plaintiff by entering on the bid form the figure $140,000 for item 1, the figure $434,000 for item 2, the figure $100,000 for item 3, and the figure $674,000 for the total of the bid. However, Mr. Martin made the mistake of transposing two of the digits in the amount of the bid on item 2, with the result that the figure actually entered on the bid form for item 2 was $443,000 rather than $434,000. All the other figures which Mr. Martin entered on the bid form were in accordance with Mr. McCarty's instructions, including $674,000 as the total of the bid. (Because of the mistake in connection with the bid on item 2, the arithmetical sum of the dollar amounts entered by Mr. Martin on the bid form for items 1, 2, and 3 was $683,000, rather than the $674,000 shown on the form as the bid total.)

Another bidder that responded to the IFB was Morris Plumbing Company, Inc. ("Morris"). Morris' bid (as amended by a telegram prior to the bid opening) quoted $155,000 for item 1, $389,000 for item 2, $137,000 for item 3, and $690,000 for the total of the bid. (The arithmetical sum of the dollar amounts stated by Morris on its bid, as amended, for items 1, 2, and 3 was $681,000 and not the $690,000 quoted as the bid total.)

The bid opening took place on March 15, 1971, at the headquarters office of the Fort Worth District. At the bid opening, an official of the Fort Worth District opened each of the bids and read the amount listed as the total, and another official then recorded the same amount. The amount of $674,000 shown on the plaintiff's bid as the total of that bid was the lowest of the totals listed on the several bids submitted in response to the IFB. After all the bids had been opened and read, it was announced orally that the plaintiff was the "apparent low bidder"; and the Fort Worth District then issued a written "memorandum of understanding" to the plaintiff, showing the plaintiff as the "apparent low bidder."

Soon after the bid opening, personnel of the Forth Worth District began a review of the bids in order to determine whether there were any deficiencies in the bids, and also to determine, as to each bid, whether the sum of the amounts quoted for the three items comprising the bid was correctly reflected in the amount quoted by the bidder as the total of the bid. During the review of the bids, it was discovered that the three amounts that were entered on the plaintiff's bid form for items 1, 2, and 3 totaled $683,000, rather than the $674,000 that had been entered on the form as the bid total. It was also discovered that the three amounts quoted on Morris' bid, as amended, for items 1, 2, and 3 totaled $681,000, rather than the $690,000 indicated as the total of Morris' amended bid.

After the discovery of the discrepancies mentioned in the preceding paragraph, personnel of the Fort Worth District purported to correct Morris' bid and the plaintiff's bid by indicating with a pen on the bids that Morris' bid total was $681,000 and the plaintiff's bid total was $683,000. Both the plaintiff and Morris were informed by the Fort Worth District that since the amounts of the three items comprising Morris' bid totaled $681,000, while the amounts of the three items comprising the plaintiff's bid totaled $683,000, it was Morris, and not the plaintiff, that had submitted the low bid. A controversy over the matter ensued, with the plaintiff and Morris contending before the Corps of Engineers for the award of the contract, and with the plaintiff requesting permission to correct its bid so as to show $434,000 as the amount quoted for item 2.

During the course of the administrative proceedings, the plaintiff submitted to the Corps of Engineers both oral and written representations establishing that it had been the plaintiff's intention to bid $434,000 on item 2 and to bid a total of $674,000 on all three items of the IFB, and that the insertion on the bid form of $443,000, instead of $434,000, for item 2 was due to an error on the part of the plaintiff's employee, Luther J. Martin. Morris also submitted a letter stating that it had intended for the total of its bid to be $681,000 rather than $690,000.

The controversy over the award of the contract was ultimately decided administratively by the General Counsel of the Corps of Engineers, acting for the Chief of Engineers. The General Counsel concluded that the contract should be awarded to Morris, and not to the plaintiff.

Following the administrative determination mentioned in the preceding paragraph, the plaintiff was notified on May 6, 1971, by the Fort Worth District that permission to correct the plaintiff's bid was denied, and that an award of the contract to Morris in the amount of $681,000 was being made that day.

After receiving the notification concerning the administrative decision, the plaintiff sent to the Comptroller General...