A-27702, JUNE 27, 1929, 8 COMP. GEN. 663

A-27702: Jun 27, 1929

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ADVERTISING - ALTERNATIVE PROPOSALS WHERE TWO PROJECTS ARE ADVERTISED SEPARATELY AND PROPOSALS ARE REQUESTED SEPARATELY THEREON. A BIDDER WHO IS HIGH ON ONE PROPOSAL MAY NOT HAVE SAME ACCEPTED BY VIRTUE OF AN ALTERNATIVE PROPOSAL CONTAINED IN THE SECOND BID TO REDUCE SAME SUFFICIENT TO MAKE HIM THE LOW BIDDER UNDER BOTH ADVERTISEMENTS IN THE EVENT HE IS AWARDED ALL OF THE WORK. AS FOLLOWS: BIDS WERE OPENED AT THE ELLENSBURG. THE LOW BIDDER ON SCHEDULE NO. 1 IS S. THE LOW BIDDER ON SCHEDULE NO. 2 WAS FRANK P. BIDS WERE OPENED AT THE ELLENSBURG. THE LOW BIDDER WAS S. GLEIM'S PROPOSAL WAS SUBMITTED A STIPULATION TO THE EFFECT THAT THE SUM OF $750 WOULD BE DEDUCTED FROM HIS BID OF $8. 417.50 IF HE WERE AWARDED SCHEDULES NOS. 1 AND 2 OF SPECIFICATIONS NO. 4K.

A-27702, JUNE 27, 1929, 8 COMP. GEN. 663

ADVERTISING - ALTERNATIVE PROPOSALS WHERE TWO PROJECTS ARE ADVERTISED SEPARATELY AND PROPOSALS ARE REQUESTED SEPARATELY THEREON, A BIDDER WHO IS HIGH ON ONE PROPOSAL MAY NOT HAVE SAME ACCEPTED BY VIRTUE OF AN ALTERNATIVE PROPOSAL CONTAINED IN THE SECOND BID TO REDUCE SAME SUFFICIENT TO MAKE HIM THE LOW BIDDER UNDER BOTH ADVERTISEMENTS IN THE EVENT HE IS AWARDED ALL OF THE WORK.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 27, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 17, 1929, AS FOLLOWS:

BIDS WERE OPENED AT THE ELLENSBURG, WASHINGTON, OFFICE OF THE BUREAU OF RECLAMATION MAY 18, 1929, UNDER SPECIFICATIONS NO. 4K FOR EARTHWORK ON THE NORTH BRANCH CANAL LATERALS, KITTITAS DIVISION, YAKIMA PROJECT. THIS SPECIFICATION CARRIED TWO SCHEDULES, SCHEDULE NO. 1 BEING FOR EARTHWORK ON LATERALS APPROXIMATELY MILE 2 TO MILE 7.6 AND SCHEDULE NO. 2 BEING FOR EARTHWORK ON LATERALS APPROXIMATELY MILE 7.7 TO MILE 7.10.

THE LOW BIDDER ON SCHEDULE NO. 1 IS S. W. GLEIM IN THE AMOUNT OF $6,765. THE LOW BIDDER ON SCHEDULE NO. 2 WAS FRANK P. POTT IN THE AMOUNT OF $4,495. S. W. GLEIM ALSO BID ON SCHEDULE NO. 2, HIS BID BEING $5,215, OR $621 HIGHER THAN THAT OF THE LOW BIDDER, FRANK P. POTT.

UNDER DATE OF MAY 22, 1929, BIDS WERE OPENED AT THE ELLENSBURG, WASHINGTON, OFFICE, KITTITAS DIVISION, YAKIMA PROJECT, UNDER SPECIFICATIONS NO. 5K OF EARTHWORK, NORTH BRANCH CANAL, APPROXIMATELY MILE 8.3 TO MILE 9.8, ONLY ONE SCHEDULE BEING INVOLVED.

THE LOW BIDDER WAS S. W. GLEIM IN THE AMOUNT OF $8,417.50. WITH MR. GLEIM'S PROPOSAL WAS SUBMITTED A STIPULATION TO THE EFFECT THAT THE SUM OF $750 WOULD BE DEDUCTED FROM HIS BID OF $8,417.50 IF HE WERE AWARDED SCHEDULES NOS. 1 AND 2 OF SPECIFICATIONS NO. 4K, AS DESCRIBED IN PARAGRAPH 1 ABOVE. MR. GLEIM IS THE LOW BIDDER ON SPECIFICATIONS NO. 5K, WITHOUT REGARD TO HIS STIPULATION FOR THE DEDUCTION OF $750.

THE BID ON SPECIFICATIONS NO. 5K BY MR. GLEIM WITH THE STIPULATION NAMED WAS SUBMITTED AFTER THE BIDS ON SPECIFICATIONS NO. 4K HAD BEEN OPENED AND WAS MADE WITH KNOWLEDGE OF THE FACT THAT ANOTHER WAS THE LOW BIDDER ON SCHEDULE NO. 2 OF SPECIFICATIONS NO. 4K. BY AWARDING SCHEDULES NOS. 1 AND 2 OF SPECIFICATIONS NO. 4K TO MR. GLEIM, WHICH WOULD PERMIT OF A REDUCTION OF $750 AND SPECIFICATIONS NO. 5K, THE GOVERNMENT WOULD SAVE $129 ON THE TWO JOBS.

YOUR DECISION IS REQUESTED AS TO WHETHER THE AWARDS OF BOTH SCHEDULES UNDER SPECIFICATIONS NO. 4K MAY BE MADE TO MR. GLEIM AND ADVANTAGE THUS TAKEN OF THE REDUCTION OF $750 ON SPECIFICATIONS NO. 5K.

THE PROPOSALS OPENED MAY 18 AND MAY 22, 1929, OF S. W. GLEIM FURNISH FURTHER PROOF--- IF SUCH WERE NEEDED--- OF THE WELL-SETTLED RULE THAT UP TO A CERTAIN POINT, THE GREATER THE VOLUME OF WORK, THE LESS THE PROPORTIONATE COST OF PERFORMANCE. IT DOES NOT APPEAR WHY THIS RULE WAS NOT OBSERVED IN THE ADVERTISEMENT FOR PROPOSALS IN THIS CASE; THAT IS, WHY THE ADVERTISEMENTS UNDER SPECIFICATIONS 4K AND 5K DID NOT REQUEST PROPOSALS ON THE WORK AS AN ENTIRETY AND ON EACH SEPARATE PART THEREOF SO THAT THE GOVERNMENT COULD ACCEPT THE PROPOSAL OF ONE BIDDER TO DO ALL THE WORK OR MAKE COMBINATIONS THEREOF AS ITS BEST INTEREST MIGHT APPEAR. HOWEVER, THIS IS A MATTER OF ADMINISTRATIVE RESPONSIBILITY, AND THE ADVERTISEMENTS HAVING REQUESTED SEPARATE PROPOSALS ONLY FOR DOING THE TWO SCHEDULES UNDER SPECIFICATION 4K AND THE WORK UNDER SPECIFICATION 5K, THERE IS NO AUTHORITY TO ACCEPT A PROPOSAL UNDER SPECIFICATION 5K IN THE REDUCED SUM OF $7,667.50 CONDITIONED ON ACCEPTANCE OF OTHER THAN THE LOWEST BID UNDER SCHEDULE NO. 2 OF SPECIFICATION 4K EVEN THOUGH A NET SAVING OF $129 WOULD RESULT THEREFROM.

ATTENTION IS INVITED TO THE FOLLOWING EXTRACT FROM THE OPINION OF THE SUPREME COURT OF THE UNITED STATES IN UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, 318, WHERE THE COURT SAID THAT BY SECTION 3709, REVISED STATUTES:

* * * THE GOVERNMENT IS GIVEN THE BENEFIT OF THE COMPETITION OF THE MARKET, AND EACH BIDDER IS GIVEN THE CHANCE FOR A BARGAIN. IT IS A PROVISION, THEREFORE, IN THE INTEREST OF BOTH GOVERNMENT AND BIDDER,NECESSARILY GIVING RIGHTS TO BOTH AND PLACING OBLIGATIONS ON BOTH. AND IT IS NOT OUT OF PLACE TO SAY THAT THE GOVERNMENT SHOULD BE ANIMATED BY A JUSTICE AS ANXIOUS TO CONSIDER THE RIGHTS OF THE BIDDER AS TO INSIST UPON ITS OWN.

AN ALTERNATIVE BID OF THE CHARACTER SUBMITTED BY S. W. GLEIM UNDER SPECIFICATION 5K SHOULD NOT BE CONSIDERED OR ACCEPTED. IT WOULD BE UNFAIR TO OTHER BIDDERS TO DO SO. THE ADVERTISEMENTS OF THE TWO SPECIFICATIONS WERE SEPARATE AND APPEAR TO HAVE REQUESTED SEPARATE PROPOSALS THEREON, AND THE PROPOSALS SUBMITTED TO RESPONSE TO THE ADVERTISEMENTS SHOULD STAND BY THEMSELVES SND BE CONSIDERED BY THEMSELVES.