B-110613, AUG 8, 1952

B-110613, AUG 8, 1952

PRECIS-UNAVAILABLE

MAJOR H. C. OAKES, DEPT OF THE AIR FORCE:

THERE HAS BEEN RECEIVED BY REFERENCE FROM THE OFFICE OF DIRECTOR OF FINANCE, DEPARTMENT OF THE AIR FORCE, YOUR LETTER OF MAY 9, 1952, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO WHETHER PAYMENT IS AUTHORIZED ON PUBLIC VOUCHER DATED MAY 7, 1952, FORWARDED THEREWITH, PROPOSING PAYMENT OF $19,200 TO DURANT BROTHERS AC&R, INC., CONTRACTOR, FOR THE MODIFICATION AND AIR CONDITIONING OF BUILDING T-448, MACDILL AIR FORCE BASE, FLORIDA, PURSUANT TO THE TERMS OF CONTRACT NO. AF 08 (602)-43 DATED NOVEMBER 30, 1951.

THE BASE CONTRACTING OFFICE, MACDILL AIR FORCE BASE, FLORIDA, BY INVITATION NO. 08-602-52-7, AS AMENDED, REQUESTED JOB-PRICE BIDS - TO BE OPENED NOVEMBER 29, 1951 - FOR THE MODIFICATION AND AIR CONDITIONING OF BUILDING T-448 AT THE BASE IN ACCORDANCE WITH CERTAIN SPECIFICATIONS AND DRAWINGS FURNISHED. AN ABSTRACT OF THE BIDS RECEIVED SHOWS THAT, IN RESPONSE TO THE INVITATION, THE AUTOMATIC COOLING & HEATING COMPANY SUBMITTED THE LOW BID OF $16,129, THE NEXT LOW BID WAS THAT OF DURANT BROTHERS AC&R, INC., IN THE AMOUNT OF $19,200 AND THE FIVE OTHER BIDS RANGED FROM $19,990 TO $23,488.

IT APPEARS THAT THE CONTRACT WAS NOT AWARDED TO THE LOW BIDDER BECAUSE IMMEDIATELY AFTER THE BIDS WERE OPENED, AN ATTENDING REPRESENTATIVE OF THE AUTOMATIC COOLING & HEATING COMPANY ADVISED THAT A MISTAKE HAD BEEN MADE BY THE COMPANY IN THAT - NOTWITHSTANDING THAT THE BID DID NOT SO INDICATE IN ITS FACE - THE PRICE QUOTED THEREIN WAS INTENDED TO COVER ONLY THE AIR CONDITIONING AND HEATING JOB CALLED FOR UNDER SECTION VIII OF THE SPECIFICATIONS AND REQUESTED THAT THE COMPANY'S BID BE CONSIDERED ON THAT BASIS. IT APPEARS FURTHER THAT THE CONTRACTING OFFICER, AFTER COMPARING THE BID WITH THE OTHERS RECEIVED, MADE THE DETERMINATION THAT THE COMPANY HAD MADE A MISTAKE AS ALLEGED IN FAILING TO SPECIFY THAT ITS BID WAS INTENDED TO COVER ONLY A PART OF THE WORK OF THE PROJECT AND THAT, THEREFORE, THE BID WAS NOT RESPONSIVE. ALSO, THE RECORD SHOWS THAT UPON THE CONTRACTING OFFICER'S REQUEST OF NOVEMBER 30, 1951, FOR ADMINISTRATIVE APPROVAL ACCOMPANIED BY HIS ADVICE THAT THE BID OF DURANT BROTHERS AC&R, INC., WAS THE LOWEST RESPONSIVE BID RECEIVED ON THE ENTIRE PROJECT, THE AWARD OF NOVEMBER 30, 1951, TO SAID CORPORATION, THE SECOND LOWEST BIDDER, WAS APPROVED ON DECEMBER 7, 1951, BY HEADQUARTERS, SECOND AIR FORCE, BARKSDALE BASE, LOUISIANA, AND NOTICE TO PROCEED WITH THE WORK DATED DECEMBER 10, 1951, WAS FORWARDED TO THE CORPORATION. HOWEVER, SUBSEQUENT TO THE APPROVAL OF THE AWARD AND UPON RECEIPT OF THE CONTRACT, COPY OF THE REJECTED BID AND OTHER PERTINENT PAPERS, THE CONTRACTING OFFICER WAS REQUESTED BY THE SECOND AIR FORCE COMMAND OF BARKSDALE BASE, LOUISIANA, TO JUSTIFY FURTHER HIS REJECTION OF THE LOW BID SUBMITTED BY THE AUTOMATIC COOLING & HEATING COMPANY. IN A REPORT OF THE CIRCUMSTANCES DATED FEBRUARY 9, 1952, THE CONTRACTING OFFICER STATED THAT -

"DUE TO THE URGENCY OF THIS PROJECT, TIME DID NOT PERMIT PROCESSING IN ACCORDANCE WITH CUSTOMARY PROCEDURE SET FORTH IN ARMED SERVICES PROCUREMENT REGULATIONS 2-405-2."

IN SUPPORT OF HIS STATEMENT AS TO THE EXIGENCY OF THE WORK, THE CONTRACTING OFFICER FORWARDED WITH HIS REPORT A COMMUNICATION FROM THE COMMANDING OFFICER, MACDILL AIR FORCE BASE, DATED OCTOBER 26, 1951, WHEREIN HE FORMALLY REQUESTED THE CONTRACTING OFFICER TO GIVE THE HIGHEST PRIORITY TO THE INSTANT BUILDING MODIFICATIONS PROJECT, FOR REASONS SET FORTH THEREIN. IN SUBSTANTIATION OF THE LOW BIDDER'S ALLEGATION OF ERROR, THERE WAS FORWARDED WITH SAID REPORT THE SWORN STATEMENTS OF THREE COMPANY REPRESENTATIVES, ONE OF WHICH WAS EXECUTED BY THE OFFICE ENGINEER WHO STATED IN SUBSTANCE THAT WHEN THE INVITATION ARRIVED IN THE COMPANY'S OFFICE, HE ASSUMED THAT THE COMPANY WOULD BE INTERESTED IN BIDDING ONLY ON THE AIR CONDITIONING AND HEATING WORK AS SPECIFIED IN SECTION VIII OF THE TECHNICAL PROVISIONS WHICH WAS STAPLED TO THE INVITATION AND, CONSEQUENTLY, HE DISCARDED ALL OTHER PARTS OF THE SPECIFICATIONS. IN THE OTHER TWO SWORN STATEMENTS EXECUTED BY OFFICIALS OF THE COMPANY WHO CHECKED THE INVITATION PRIOR TO SUBMITTING A BID, IT IS STATED THAT WHEN THE INVITATION CAME TO THEIR DESKS ONLY SECTION VIII OF THE SPECIFICATIONS PERTAINING TO AIR CONDITIONING WAS RECEIVED WITH IT. IN SAID REPORT OF FEBRUARY 9, 1952, THE CONTRACTING OFFICER REFERRED TO THE COMPANY'S WORK SHEET WHICH HE HAD PREVIOUSLY FORWARDED BY LETTER DATED DECEMBER 24, 1951, AND WHICH CONTAINS A BREAKDOWN OF THE COST COVERING THE AIR CONDITIONING WORK TOTALLING HIS BID PRICE OF $16,129.

WHILE THE ERROR IN BID AS ALLEGED BY THE LOW BIDDER AFTER OPENING OF BIDS DOES NOT APPEAR TO HAVE BEEN DEFINITELY ESTABLISHED PRIOR TO THE ACCEPTANCE OF THE SECOND LOW BID, NEVETHELESS IN VIEW OF THE URGENCY OF THE MATTER WHICH THE CONTRACTING OFFICER BELIEVED PRECLUDED THE PROCESSING OF THE CASE IN ACCORDANCE WITH ADMINISTRATIVE REGULATIONS, AND SINCE DURANT BROTHERS AC&R, INC., HAS SATISFACTORILY COMPLETED WORK UNDER CONTRACT NO. AF 08(602)-43, THE CONTRACTOR IS ENTITLED TO PAYMENT IN ACCORDANCE WITH THE TERMS OF THE CONTRACT.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER, WHICH IS RETURNED HEREWITH TOGETHER WITH THE PAPERS RELATED THERETO, IS AUTHORIZED, IF OTHERWISE CORRECT.