B-124943, SEP. 27, 1955

B-124943, SEP. 27, 1955

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 12, 1955, WITH ENCLOSURES, FURNISHING THE REPORT REQUESTED IN OUR LETTER OF AUGUST 11, 1955, RELATIVE TO AN ALLEGED ERROR IN A BID SUBMITTED BY CONSTRUCTION ASSOCIATES ON WHICH CONTRACT NOY-88658 DATED JUNE 30, 1955, WAS BASED.

THE REPORT DATED SEPTEMBER 2, 1955, FROM THE OFFICER IN CHARGE OF CONSTRUCTION, THIRD NAVAL DISTRICT, TO THE CHIEF, BUREAU OF YARDS AND DOCKS, SHOWS THAT THE BID OF $1,800 SUBMITTED BY CONSTRUCTION ASSOCIATES WAS THE ONLY BID RECEIVED. AFTER A BID BOND HAD BEEN REQUESTED AND RECEIVED FROM THE BIDDER,"* * * AUTHORIZATION TO AWARD THE CONTRACT PRIOR TO 30 JUNE 1955 WAS REQUESTED IN LIEU OF BID REJECTION AND ACCOMPLISHMENT BY INFORMAL CONTRACT DUE TO POSSIBLE CHANGES EXCEEDING THE $1999.99 LIMITATION FOR INFORMAL CONTRACTS. * * *" THE FIFTH PARAGRAPH OF THE SAME REPORT IS AS FOLLOWS:

"5. SINCE CONSTRUCTION ASSOCIATES BID PRICE WAS CONSIDERABLY BELOW OUR ESTIMATE OF $3,877.00 FOR THE WORK, VERBAL INQUIRIES WERE MADE BY THIS OFFICE ON AT LEAST TWO (2) OCCASIONS AS TO WHETHER ANY ERRORS HAD BEEN MADE IN THEIR ESTIMATE. AS NO ERRORS WERE REPORTED, THE CONTRACT AWARD WAS MADE AS AUTHORIZED * * * ON 30 JUNE 1955.'

NOTHING FURTHER WITH RESPECT TO THE CHARACTER OF THE REFERRED-TO INQUIRIES OR THE DATES ON WHICH THEY WERE MADE OR THE BIDDER'S RESPONSE TO THE INQUIRIES IS SHOWN IN THE REPORT. MOREOVER, THERE IS NO INDICATION THAT A CONFIRMATION OF THE BID PRICE ACTUALLY WAS REQUESTED OR RECEIVED, FROM THE BIDDER.

FOLLOWING RECEIPT OF NOTICE OF AWARD, THE BIDDER GAVE VERBAL NOTICE TO THE DISTRICT PUBLIC WORKS OFFICE THAT ITS BID COVERED ONLY THE INSTALLATION OF THE TURNTABLE, AND NOT THE FURNISHING OF THE ITEM ITSELF. UPON THE ADVICE OF THAT OFFICE, IT SUBMITTED HERE, BY LETTER DATED AUGUST 1, 1955, ITS REQUEST FOR RELIEF, STATING THAT THE PRICE OF THE TURNTABLE ALONE AT THE FACTORY IS $3,350, OR NEARLY TWICE THE AMOUNT OF ITS BID.

THE INVITATION ITSELF DESCRIBES THAT CONSTRUCTION PROJECT ONLY AS "REPLACEMENT OF COMPASS ROSE TURNTABLE," AND WHILE IN THE DESCRIPTION OF THE WORK THERE IS A SLIGHT REFERENCE TO THE TURNTABLE DIMENSIONS, TO THE MATERIAL SUBSTANCE OF WHICH IT IS COMPRISED, AND TO THE MANNER IN WHICH IT IS TO BE MOUNTED, THERE IS NO STATEMENT OR CLEAR INDICATION THAT THE FURNISHING OF THE TURNTABLE IS A PART OF THE CONTRACT WORK. THE INVITATION CONTAINS NO SPECIFICATIONS, BUT STATES THAT THE APPLICABLE SPECIFICATION AND OTHER BIDDING DATA AND INFORMATION MAY BE OBTAINED FROM THE PUBLIC WORKS OFFICER UPON APPLICATION THEREFOR. THE RECORD SHOWS THAT CONSTRUCTION ASSOCIATES IS ONE OF FIVE PROSPECTIVE BIDDERS WHO OBTAINED THE JOB SPECIFICATION, NO. 47581 (SF), BUT IT IS INDICATED THAT IT DID NOT RECEIVE THE SPECIFICATIONS FOR THE TURNTABLE- - MIL-T-6263 (USAF), INCORPORATED IN THE JOB SPECIFICATION ONLY BY REFERENCE--- UNTIL JUNE 27, AFTER THE BID OPENING.

IT IS ALSO NOTED THAT THE BID FORM USED CONTAINS NO REFERENCE TO FURNISHING A TURNTABLE, CALLING ONLY FOR AN OFFER "TO PERFORM THE WORK SPECIFIED HEREIN.'

THE FACTS OF RECORD, INCLUDING ITS CERTIFIED ORIGINAL WORKSHEET,CLEARLY ESTABLISH THAT THE BIDDER MADE A BONA FIDE ERROR AND THAT IT ACTUALLY INTENDED, FOR THE PRICE QUOTED, TO FURNISH ONLY THE WORK AND MATERIAL REQUIRED FOR CONSTRUCTING THE BASE AND INSTALLING THEREON A COMPASS ROSE TURNTABLE TO BE FURNISHED BY THE GOVERNMENT AND THEREBY TO PERFORM THE JOB OF REPLACEMENT CALLED FOR IN THE INVITATION. WHILE, UNDER PARAGRAPH 2-01, SECTION 2, PAGE 5 OF SPECIFICATION NO. 47581 (SF) ENTITLED "GENERAL REQUIREMENTS," IT IS SPECIFICALLY STATED THAT THE WORK INCLUDES FURNISHING THE TURNTABLE AND IT MAY BE SAID THAT THE BIDDER FAILED TO EXERCISE PROPER CARE IN ITS OWN BEHALF BY SUBMITTING ITS BID, WHICH IT APPEARS TO HAVE DONE, PRIOR TO OBTAINING AND CONSULTING THE TURNTABLE SPECIFICATIONS, IT ALSO MAY BE SAID THAT THE OFFICER IN CHARGE OF CONSTRUCTION, HAVING KNOWLEDGE OF THE FULL EXTENT OF THE WORK REQUIRED, PROPERLY MAY BE CHARGED WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF ERROR IN A BID AMOUNTING TO LESS THAN HALF OF THE GOVERNMENT'S COST ESTIMATE, AND BUT LITTLE MORE THAN HALF OF THE COST OF THE TURNTABLE, AS TO WHICH HE MUST BE CHARGED WITH SOME KNOWLEDGE. MOREOVER, ON THE BASIS OF HIS REFERRED-TO REPORT, IT APPEARS THAT, AT THE TIME OF THE AWARD, HE HAD ACTUAL NOTICE OF FACTS INDICATING THAT THE UNVERIFIED BID WAS PROBABLY ERRONEOUS, NOTWITHSTANDING THAT ERROR HAD NOT BEEN ALLEGED.

IN THE CIRCUMSTANCES, THE BIDDER SHOULD HAVE BEEN REQUESTED FORMALLY, IN WRITING, TO REVIEW THE SPECIFICATIONS AND TO VERIFY ITS BID PRICE. APPEARING THAT THIS WAS NOT DONE, THE CONCLUSION IS WARRANTED THAT THE ACCEPTANCE OF THE BID DID NOT CONSUMMATE A VALID AND BINDING CONTRACT. ACCORDINGLY, THE AWARD SHOULD BE CANCELED, WITHOUT ANY LIABILITY ON PART OF THE CONTRACTOR OR ITS SURETY.

FOR YOUR INFORMATION AND SUCH ATTENTION AS MAY BE MERITED, THERE IS QUOTED A PORTION OF A LETTER DATED JULY 26, 1955, FROM THE WAKEFIELD ENGINEERING COMPANY, P.O. BOX 471, COEUR D-ALENE, IDAHO, TO CONSTRUCTION ASSOCIATES, RELATIVE TO THE SUBJECT PROCUREMENT:

"SINCE YOUR INQUIRY OF 7 OF JULY WE HAVE OBTAINED A COPY OF USAF SPECIFICATION MIL-T-6263 AND FIND THAT IT IS A MODIFICATION OF OUR PATENTED TYPE B-1 TURNTABLE DESIGN. HOWEVER, IT IS AN IMPOSSIBLE SPECIFICATION AND WE DOUBT WHETHER ANYONE COULD MANUFACTURE SUCH A TURNTABLE WITH A CAPACITY OF 125 TONS AND WEIGHT NOT TO EXCEED 600 LBS. OUR TYPE B-2 TURNTABLE WEIGHS OVER 700 LBS. FURTHERMORE, WHY REQUIRE A DUAL WHEEL CAPACITY OF 125 TONS WHEN EVEN THE RUNWAYS CAN-T TAKE THIS MUCH LOAD AND THERE ISN-T AN AIRPLANE BUILT THAT WOULD BE THIS HEAVY.'