Rose Corp. v. United States

MEMORANDUM OF DECISION KOZINSKI, Chief Judge. This case involves a construction contract deriving from Invitation for Bid No. DACW59-78-B-0075 of the U.S. Army Engineer District, Pittsburgh Corps of Engineers. Plaintiff bid on the contract under the misapprehension that “[p]ayment ... for ‘unclassified excavation,’ ” as used in Division 2, Section 2D 6 of the Invitation For Bids, called for separate payments for “cutting” and “filling.” * It bid $2.60 per cubic yard, whereas it would have bid $5.20 had it understood that the unit price was meant to include both cutting and filling. Plaintiff’s total bid price was $328,545; the government’s estimate was $333,711.50; the next lowest bid came in at $427,000. (Jt.Ex. 2.) The government estimate for unclassified excavation was $4.25 per cubic yard. The government’s estimates were calculated by including overhead but not profit. Trial was held in Washington, D.C., on December 6, 1982. At issue was whether the bid language was ambiguous and whether plaintiff’s mistake was so obvious as to impose upon defendant the responsibility to inquire as to any error prior to awarding the contract. The court made oral findings and conclusions, holding as follows: (1) The bid language ** was unambiguous. It provided that payment per cubic yard for “unclassified excavation” would cover both cutting and filling. (2) Under all the circumstances presented at trial, plaintiff’s bid was not so low as to [232] necessarily alert the contracting officer that the bid was the result of plaintiff’s mistake. See ASPR 2-406.1, reprinted in 32 C.F.R. (1981). Nothing in the bid, aside from the price differential, could have alerted the contracting officer to the possibility of an error. Judgment will be entered for the defendant and the petition will be dismissed. Costs to the prevailing party. IT IS SO ORDERED. Footnotes [*] Cutting pertains to the removal of earth or other material. Filling is the placement of that material in another location. [**] This paragraph in question reads as follows: [232] 6. MEASUREMENT AND PAYMENT. All excavation will be measured by the cubic yard by cross-sectional method. Payment will be made at the contract unit price per cubic yard for “Unclassified Excavation”, which unit price shall include all costs of stripping, excavating, grading, loading, transporting and placing suitable material in the fill sections, compacting fill, stockpiling topsoil, disposal of unsuitable and excess excavated material, and all other incidental costs in connection with completing the item of work as specified. (Jt.Ex. 1.)