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B-125282, NOV. 22, 1955

B-125282 Nov 22, 1955
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TO THE HONORABLE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19. INFORMED THE CONTRACTOR THAT HE WAS UNABLE. YOU FEEL FURTHER CONSIDERATION BY YOUR DEPARTMENT IS NOT REQUIRED. WHICH WOULD HAVE PROVIDED APPROXIMATELY 425 DAYS FOR COMPLETION OF THE JOB. THE CONTRACTOR'S APPEAL FOR EQUITABLE RELIEF IS BASED PRIMARILY ON THE CONTENTION THAT HE DISCUSSED THE BID WITH REPRESENTATIVES OF THE CONTRACTING AGENCY PRIOR TO AWARD AND THAT HE WAS ADVISED THAT HE COULD NOT BE AWARDED A CONTRACT CONTAINING THE DATE OF COMPLETION QUALIFICATION BUT THAT IF HE UNDERTOOK THE WORK IN ACCORDANCE WITH THE BID SPECIFICATIONS HE WOULD BE GIVEN EXTENSIONS OF TIME TO DECEMBER 31. THE CONTRACT SUBSEQUENTLY WAS AWARDED ON THE BASIS OF THE ADVERTISED SPECIFICATIONS REQUIRING COMPLETION WITHIN 330 CALENDAR DAYS AFTER DATE OF RECEIPT OF THE NOTICE BE PROCEED.

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B-125282, NOV. 22, 1955

TO THE HONORABLE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 19, 1955, RELATIVE TO THE APPEAL OF MR. W. D. ZAVALAS FOR REMISSION ON AN EQUITABLE BASIS OF LIQUIDATED DAMAGES OCCASIONED BY DELAYS IN THE PERFORMANCE OF CONTRACT NO. IBP-7414, ENTERED INTO WITH THE BONNEVILLE POWER ADMINISTRATION.

IN YOUR LETTER YOU STATE THAT, SINCE YOUR SOLICITOR HAS ON TWO OCCASIONS, FOLLOWING THE ISSUANCE OF THE ADMINISTRATIVE DECISION, INFORMED THE CONTRACTOR THAT HE WAS UNABLE, FROM THE FACTS OF THE CASE, TO JUSTIFY A RECOMMENDATION TO THE COMPTROLLER GENERAL FOR REMISSION OF LIQUIDATED DAMAGES ON AN EQUITABLE BASIS, YOU FEEL FURTHER CONSIDERATION BY YOUR DEPARTMENT IS NOT REQUIRED.

THE CONTRACTOR CONTENDS AND THE RECORD INDICATES, HOWEVER, THAT, WHEREAS THE ADVERTISED SPECIFICATIONS PROVIDED FOR COMPLETION OF THE CONTRACT WORK WITHIN 330 DAYS AFTER RECEIPT BY THE CONTRACTOR OF THE NOTICE TO PROCEED, MR. ZAVALAS QUALIFIED HIS BID BY STIPULATING COMPLETION ON NOVEMBER 1, 1951, WHICH WOULD HAVE PROVIDED APPROXIMATELY 425 DAYS FOR COMPLETION OF THE JOB. THE CONTRACTOR'S APPEAL FOR EQUITABLE RELIEF IS BASED PRIMARILY ON THE CONTENTION THAT HE DISCUSSED THE BID WITH REPRESENTATIVES OF THE CONTRACTING AGENCY PRIOR TO AWARD AND THAT HE WAS ADVISED THAT HE COULD NOT BE AWARDED A CONTRACT CONTAINING THE DATE OF COMPLETION QUALIFICATION BUT THAT IF HE UNDERTOOK THE WORK IN ACCORDANCE WITH THE BID SPECIFICATIONS HE WOULD BE GIVEN EXTENSIONS OF TIME TO DECEMBER 31, 1951, IF NECESSARY, TO COMPLETE THE WORK. THE CONTRACT SUBSEQUENTLY WAS AWARDED ON THE BASIS OF THE ADVERTISED SPECIFICATIONS REQUIRING COMPLETION WITHIN 330 CALENDAR DAYS AFTER DATE OF RECEIPT OF THE NOTICE BE PROCEED.

REGARDING THE CONTRACTOR'S QUALIFICATION OF ITS BID AND HIS CONTENTION THAT ORAL COMMITMENTS HAD BEEN MADE TO HIM, THE SOLICITOR OF YOUR DEPARTMENT IN DECISION CA-191, DATED FEBRUARY 24, 1954, STATED:

"THE CONTRACTOR IN WRITING ACCEPTED THE NOTICE OF AWARD AND BY SO DOING WAIVED ANY QUALIFICATION THAT HIS BID MAY HAVE CONTAINED AS TO THE PERIOD OF TIME FOR COMPLETION. IN THE ABSENCE OF SUCH A WAIVER, IT APPEARS THAT MR. ZAVALAS' BID WOULD HAVE HAD TO BE REJECTED BECAUSE OF A DEVIATION FROM THE SPECIFICATIONS (15 COMP. GEN. 553 (1935); CF. 30 COMP. GEN. 179 (1950) ). ASSUMING THAT THE PAROL COMMITMENT ALLEGED BY THE CONTRACTOR WAS MADE (AND I MAKE NO DECISION ON THIS POINT), IT WAS NOT WITHIN THE POWER OF THE REPRESENTATIVES OF THE BONNEVILLE POWER ADMINISTRATION TO COMMIT THE GOVERNMENT INDIRECTLY AND ORALLY TO AN ARRANGEMENT WHICH COULD NOT BE MADE DIRECTLY BY ACCEPTANCE OF THE WRITTEN BID AS QUALIFIED. FURTHERMORE, A PAROL COMMITMENT COULD NOT VARY THE PLAIN PROVISIONS OF THE CONTRACT WITH RESPECT TO THE TIME FOR PERFORMANCE. SEE CARD ON V. UNITED STATES, 87 CT. CL. 189, 193, 201 (1938).'

THUS, IT APPEARS THAT NO ATTEMPT WAS MADE ADMINISTRATIVELY TO INVESTIGATE AND DETERMINE WHETHER ANY ORAL COMMITMENTS WERE IN FACT MADE BY A REPRESENTATIVE OF THE CONTRACTING AGENCY, AS ALLEGED. FURTHERMORE, IN LETTERS OF AUGUST 2 AND SEPTEMBER 10, 1954, TO THE CONTRACTOR'S REPRESENTATIVE, WHEREIN THE SOLICITOR DECLINED TO RECOMMEND REMISSION OF DAMAGES ON AN EQUITABLE BASIS,THE CONTENTION WAS NOT MET, THE ONLY REFERENCE THERETO HAVING BEEN A STATEMENT IN THE LATTER COMMUNICATION THAT "THIS SITUATION IS COMPLICATED BY THE FACT THAT THE OFFICIAL WHO ALLEGEDLY PROMISED THAT MR. ZAVALAS WOULD BE GRANTED EXTENSIONS OF TIME IS NOT IDENTIFIED.' IN THIS CONNECTION, HOWEVER, THE CONTRACTOR'S REPRESENTATIVE, IN LETTER DATED AUGUST 3, 1955, TO OUR OFFICE, WHICH ACCOMPANIED OUR LETTER OF SEPTEMBER 15, TO YOU, AND WHICH FORMED THE BASIS OF YOUR REPORT OF OCTOBER 19 TO US, NAMES SPECIFICALLY A MR. BELL AND A MR. TAYLOR OF THE CONTRACTING AGENCY AND, PARTICULARLY, MR. L. C. STEWART, PROCUREMENT OFFICER OF THE BONNEVILLE POWER ADMINISTRATION. IN ADDITION, THE LETTER DESCRIBES CERTAIN CIRCUMSTANCES WHICH, IT IS CONTENDED, LENDS WEIGHT AND CREDIBILITY TO MR. ZAVALAS' ASSERTION THAT EXTENSIONS OF TIME TO DECEMBER 31, 1951, WERE PROMISED ORALLY. IT IS POINTED OUT, FOR INSTANCE, THAT THE FIRST AND ONLY REQUEST FOR EXTENSION OF TIME WAS MADE BY MR. ZAVALAS ON DECEMBER 26, 1951, THE IMPLICATION BEING THAT REQUESTS FOR EXTENSION OF TIME WOULD HAVE BEEN MADE BY HIM LONG BEFORE THAT DATE IF HE HAD CONSIDERED THE SEPTEMBER 10, 1951, COMPLETION DATE AS BINDING UPON HIM.

ALTHOUGH THE MATTER OF MAKING A RECOMMENDATION REGARDING THE QUESTION OF WHETHER LIQUIDATED DAMAGES SHOULD BE REMITTED ON AN EQUITABLE BASIS IS ONE ENTIRELY WITHIN YOUR DISCRETION, IN THE LIGHT OF THE FOREGOING, AND IN ORDER TO ASSIST US IN REACHING A DECISION ON THE QUESTION OF WHETHER AS A MATTER OF LAW ANY PART OF THE DAMAGES SHOULD BE REMITTED, IT IS RESPECTFULLY REQUESTED THAT THE CLAIM BE GIVEN FURTHER CONSIDERATION WITH A VIEW TO DETERMINING WHETHER OR NOT THE CONTRACTOR'S CONTENTION THAT ORAL COMMITMENTS REGARDING EXTENSIONS OF TIME WERE MADE TO HIM IS CORRECT. THE PERTINENT PAPERS ARE FORWARDED FOR THIS PURPOSE AND WE WILL APPRECIATE THEIR BEING RETURNED WITH YOUR REPLY. ALSO PLEASE FURNISH A COPY OF THE CONTRACTOR'S BID AS ORIGINALLY SUBMITTED.

REGARDLESS OF THE NATURE OF YOUR FINDINGS ON THE ABOVE MATTER, WE FEEL CONSTRAINED TO COMMENT UPON THE AWARD AS MADE. WHERE, AS HERE, ADVERTISING IS RESORTED TO (16 U.S.C. 832G) AWARD IS REQUIRED TO BE MADE TO THE LOWEST RESPONSIBLE BIDDER WHOSE BID CONFORMS TO THE INVITATION FOR BIDS. THE PURPOSE OF THIS REQUIREMENT IS, OF COURSE, TO AFFORD ALL BIDDERS AN OPPORTUNITY TO COMPETE ON AN EQUAL BASIS. IN THE INSTANT CASE, THE BID OF MR. ZAVALAS APPARENTLY WAS NOT RESPONSIVE TO THE ADVERTISED REQUIREMENTS IN THAT HE QUALIFIED IT BY STIPULATING A PERIOD OF PERFORMANCE OF 45 DAYS, OR 95 DAYS IN EXCESS OF THE PERIOD STIPULATED IN THE BID INVITATION. THIS WAS A MATERIAL DEVIATION WHICH WENT TO THE PRICE OF THE BID AND, AS SUCH, SHOULD NOT HAVE BEEN WAIVED BY THE CONTRACTING OFFICER. 30 COMP. GEN. 179 AND 33 ID. 441. SUCH ACTION WAS AS ERRONEOUS FROM A LEGAL STANDPOINT AS IT WOULD HAVE BEEN TO HAVE ACCEPTED THE QUALIFIED BID AS SUBMITTED. AS WAS HELD IN OUR DECISION OF AUGUST 20, 1954, 34 COMP. GEN. 82, TO YOU, WHICH ALSO INVOLVED AN AWARD BY THE BONNEVILLE POWER ADMINISTRATION, PUBLIC OFFICERS MAY NOT ACCEPT BIDS NOT COMPLYING IN SUBSTANCE WITH THE ADVERTISED SPECIFICATIONS BUT NEITHER MAY THEY PERMIT BIDDERS TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED. SEE ALSO 17 COMP. GEN. 554.

AS CONGRESSMAN JOHN E. MOSS IS INTERESTED IN THIS CASE, IT WILL BE APPRECIATED IF YOUR REPLY CAN BE EXPEDITED.

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