A-31036, APRIL 4, 1930, 9 COMP. GEN. 432

A-31036: Apr 4, 1930

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THE WRONG BLUE PRINTS WERE SENT TO SOME OF THE BIDDERS AND THE CONTRACT WAS AWARDED TO ONE OF THE BIDDERS TO WHOM WRONG BLUE PRINTS HAD BEEN SENT. 1930: I HAVE YOUR LETTER OF MARCH 17. AFTER THE AWARD WAS MADE IT WAS DISCOVERED THAT BY MISTAKE THE WRONG BLUE PRINT HAD BEEN FORWARDED TO THIS AND SEVERAL OTHER BIDDERS AND USED BY THEM IN THE PREPARATION OF THEIR BIDS. THERE IS INCLOSED FOR YOUR INFORMATION A MEMORANDUM PREPARED BY THE SUPERINTENDENT OF PRISONS EXPLAINING MORE IN DETAIL THE CIRCUMSTANCES OF THIS CASE. YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER UNDER THE CIRCUMSTANCES SET FORTH IN THIS MEMORANDUM THE CONTRACT MAY BE CANCELED AND THE WORK READVERTISED. THE FACTS RELATIVE TO INVOLVED CONTRACT ARE SET FORTH IN THE MEMORANDUM.

A-31036, APRIL 4, 1930, 9 COMP. GEN. 432

CONTRACTS - MISTAKE - CANCELLATION - READVERTISEMENT WHERE, IN REQUESTING BIDS FOR THE FURNISHING OF STEEL TO THE GOVERNMENT, THE WRONG BLUE PRINTS WERE SENT TO SOME OF THE BIDDERS AND THE CONTRACT WAS AWARDED TO ONE OF THE BIDDERS TO WHOM WRONG BLUE PRINTS HAD BEEN SENT, IT SHOULD BE CANCELED AND THE MATTER READVERTISED IN ORDER THAT BIDDING MAY BE ON COMMON GROUND.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, APRIL 4, 1930:

I HAVE YOUR LETTER OF MARCH 17, 1930, INITIALED "J. W. G.' AND SIGNED BY ASSISTANT ATTORNEY GENERAL CHARLES P. SISSON, AS FOLLOWS:

THIS DEPARTMENT FORWARDED TO YOU A SHORT TIME AGO CONTRACT J-5877 WITH THE TRUSCON STEEL COMPANY FOR REINFORCING STEEL FOR THE UNITED STATES INDUSTRIAL REFORMATORY AT CHILLICOTHE, OHIO, BUT AFTER THE AWARD WAS MADE IT WAS DISCOVERED THAT BY MISTAKE THE WRONG BLUE PRINT HAD BEEN FORWARDED TO THIS AND SEVERAL OTHER BIDDERS AND USED BY THEM IN THE PREPARATION OF THEIR BIDS. THERE IS INCLOSED FOR YOUR INFORMATION A MEMORANDUM PREPARED BY THE SUPERINTENDENT OF PRISONS EXPLAINING MORE IN DETAIL THE CIRCUMSTANCES OF THIS CASE.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER UNDER THE CIRCUMSTANCES SET FORTH IN THIS MEMORANDUM THE CONTRACT MAY BE CANCELED AND THE WORK READVERTISED.

THE FACTS RELATIVE TO INVOLVED CONTRACT ARE SET FORTH IN THE MEMORANDUM, REFERRED TO IN YOUR LETTER, PREPARED BY THE ASSISTANT SUPERINTENDENT OF PRISONS, DEPARTMENT OF JUSTICE, UNDER DATE OF FEBRUARY 12, 1930, AS FOLLOWS:

UNDER DATE OF DECEMBER 7, 1929, PROPOSALS WERE SUBMITTED FROM THE OFFICE OF THE SUPERINTENDENT OF PRISONS TO BE OPENED JANUARY 9, 1930, AT 2.00 P.M., FOR FURNISHING REINFORCING STEEL FOR CELL BLOCKS NO. 1 AND NO. 2, A PART OF THE CHILLICOTHE CONSTRUCTION PROJECT.

THE INVITATIONS FOR BIDS CARRIED THE FOLLOWING NOTATION:

ITEM NO. 1, REINFORCING STEEL FOR CELL BLOCK NO. 2 (AS DIAGRAMMED AND LISTED ON SHEET NO. 402, AND IN ACCORDANCE WITH SPECIFICATION NO. 143).

ITEM NO. 2, REINFORCING STEEL FOR CELL BLOCK NO. 1, CONNECTING CORRIDORS AND PRISON WALL (AS DIAGRAMMED AND LISTED ON SHEET NO. 406, AND IN ACCORDANCE WITH SPECIFICATION NO. 142).

COPIES OF "INVITATION," SPECIFICATIONS 142 AND 143, AND BLUE PRINTS NO. 402 AND NO. 406 ARE ATTACHED, MARKED "EXHIBITS A, B, C, D, AND E," RESPECTIVELY.

AT THE PROPER TIME BIDS WERE OPENED, ABSTRACTED, AND CONTRACTS AWARDED TO THE LOW BIDDERS. CONTRACT J-5877 IN THE TOTAL AMOUNT OF $1,035.00 WAS AWARDED TO THE TRUSCON STEEL COMPANY COVERING ITEM NO. 1, AND CONTRACT J- 5878 IN THE TOTAL AMOUNT OF $14,350.00 WAS AWARDED TO THE W.VA. RAIL COMPANY, COVERING ALL SUBITEMS UNDER ITEM NO. 2. A COPY OF THE ABSTRACT OF BIDS, MARKED "EXHIBIT F," IS ATTACHED. COPIES OF CONTRACTS J-5877 AND J-5878, RESPECTIVELY, HAVE BEEN FILED IN THE OFFICE OF THE COMPTROLLER GENERAL.

UNDER DATE OF JANUARY 28, 1930, A LETTER WAS RECEIVED FROM THE TRUSCON STEEL COMPANY, STATING IN BRIEF THAT WHEN THE "INVITATION" REACHED HIS OFFICE IT WAS ACCOMPANIED BY DRAWING NO. 401 AND NOT NO. 402, AND THAT HIS PROPOSAL WAS BASED UPON DRAWING NO. 401, ALTHOUGH THE PROPOSAL PLAINLY REFERS TO DRAWING NO. 402.

IN THIS CONNECTION YOU WILL NOTE THAT TWO OTHER BIDDERS, NAMELY, THE KALMAN STEEL COMPANY AND BOURNE-FULLER COMPANY, HAVE SUBMITTED BIDS COMPARABLE WITH THAT OF THE TRUSCON STEEL COMPANY. UNDER DATE OF JANUARY 27, 1930, WE WROTE EACH OF THESE BIDDERS REQUESTING INFORMATION AS TO THE ITEMS COVERED BY THE RESPECTIVE BIDS AND ASKING THAT THEY GIVE REFERENCE TO THE BLUE-PRINT NUMBERS UPON WHICH BID WAS BASED. COPIES OF THESE LETTERS, MARKED "EXHIBITS G AND H" ARE ATTACHED. UNDER DATE OF JANUARY 29, 1930, WE RECEIVED A REPLY FROM THE BOURNE FULLER COMPANY STATING BID WAS BASED UPON BLUE PRINT NO. 401, AND UNDER DATE OF JANUARY 30, 1930, KALMAN STEEL COMPANY ADVISED THEIR BID WAS BASED UPON BLUE "EXHIBITS I AND J.'

UNDER THESE CIRCUMSTANCES, THEREFORE, WE ARE FORCED TO THE CONCLUSION THAT IN THE CASE OF THE TRUSCON STEEL COMPANY, THE KALMAN STEEL COMPANY, AND THE BOURNE-FULLER COMPANY, INVITATIONS WERE MAILED ACCOMPANIED BY BLUE PRINTS NO. 401 AND NOT NO. 402 REFERRED TO IN SPECIFICATIONS. IT WOULD FURTHER APPEAR THESE THREE BIDDERS DID NOT DISCOVER THE ERROR, AND SUBMITTED BIDS BASED UPON THE SMALLER QUANTITY INDICATED IN BLUE PRINT NO. 401 INSTEAD OF THE LARGER QUANTITY INDICATED IN BLUE PRINT NO. 402.

AT THE TIME BIDS WERE UNDER CONSTRUCTION INQUIRY WAS MADE BY THE REPRESENTATIVES OF THE WEST VIRGINIA RAIL COMPANY AS TO THE POSSIBILITY OF AN ERROR, BUT IN VIEW OF THE FACT THAT THREE BIDDERS HAD SUBMITTED LOW BIDS WHICH WERE COMPARABLE WE DID NOT FEEL THERE WAS ANY REASON TO QUESTION THE PRICES.

IT WAS OUR INTENTION TO SUBMIT BLUE PRINT NO. 402, BUT APPARENTLY THROUGH ERROR IN MAILING BLUE PRINT NO. 401 HAD BEEN SENT TO THESE FIRMS, AND THESE FIRMS HAVE EACH SUBMITTED BIDS FOR FURNISHING REINFORCING IN SMALLER QUANTITIES THAN CONTEMPLATED UNDER THE BLUE PRINT NO. 402, MENTIONED IN THE INVITATION IN CONNECTION WITH SPECIFICATIONS NO. 143.

UNDER THE CIRCUMSTANCES IT WOULD APPEAR THIS IS SUCH AN ERROR AS TO VITIATE THE CONTRACT, AND INQUIRY IS MADE AS TO WHETHER WE WOULD BE AUTHORIZED TO CANCEL CONTRACT J-5877 WITH THE TRUSCON STEEL COMPANY AND READVERTISE FOR THE MATERIALS INCLUDED UNDER ITEM NO. 1 OF THE INVITATION FIRST REFERRED TO ABOVE.

THE SAID CONTRACT NO. J-5877 CONSISTS OF (1) THE GOVERNMENT'S INVITATION FOR SEALED BIDS, DATED DECEMBER 7, 1929, TO BE OPENED AT 2 P.M., JANUARY 9, 1930, TOGETHER WITH ATTACHED SPECIFICATIONS NO. 143 FOR FURNISHING THE REINFORCED STEEL FOR CELL BLOCK NO. 2, AS REQUIRED IN THE BUILDINGS OF THE UNITED STATES INDUSTRIAL REFORMATORY AT CHILLICOTHE, OHIO, AS SPECIFIED, IN ACCORDANCE WITH THE ATTACHED BLUE PRINT DRAWING DIAGRAM SHEET NO. 402; (2) THE BID OF THE TRUSCON STEEL COMPANY, DATED JANUARY 9, 1930; AND (3) THE CONTRACTING OFFICER'SACCEPTANCE OF SUCH BID, DATED JANUARY 20, 1930.

AN EXAMINATION OF THE RECORD YOU SUBMIT DISCLOSES THAT THERE WAS A MISUNDERSTANDING BY AT LEAST THREE OF THE BIDDERS UPON THE REQUIRED REINFORCED STEEL FOR SAID CELL BLOCK NO. 2 WITH REFERENCE TO THE EXACT WORK TO BE DONE AND THE QUANTITIES AND KIND OF REINFORCED STEEL TO BE FURNISHED THEREFOR, INASMUCH AS SAID BIDDERS, TO WIT, TRUSCON STEEL COMPANY, KALMAN STEEL COMPANY, AND THE BOURNE-FULLER COMPANY, APPEAR TO HAVE BASED THEIR RESPECTIVE BIDS ON THAT ITEM OF THE WORK ON THE BLUE- PRINT DRAWING SHEET NO. 401, WHICH WAS ERRONEOUSLY SENT THEM BY THE GOVERNMENT WITH THE INVITATION TO SUBMIT BIDS ON THE PROPOSED WORK, INSTEAD OF ON THE CORRECT BLUE-PRINT DRAWING SHEET NO. 402.

IT THUS APPEARS THAT THE BIDDING WAS NOT UPON COMMON GROUND, AS THE SAME BLUE PRINTS WERE NOT FURNISHED TO ALL BIDDERS. SEE, IN THIS CONNECTION, UNITED STATES V. PAN-AMERICAN PETROLEUM COMPANY ET AL., 6 FED.REP./2D) 43, 68, AND CASES THERE CITED.

IN VIEW OF THE CIRCUMSTANCES AS HEREINABOVE SET FORTH, AND OF THE APPARENT MISUNDERSTANDING WITH REFERENCE TO THE PARTICULAR WORK AWARDED TO THE TRUSCON STEEL COMPANY ON SAID CONTRACT NO. J-5877, IT WOULD APPEAR THAT THE INTERESTS OF THE UNITED STATES REQUIRE THAT SAID CONTRACT BE CANCELED AND THAT NO AWARD BE MADE UNDER THE BIDS RECEIVED FOR SAID WORK; THAT NEW BIDS BE ASKED ON SAID WORK; AND THAT THE LOWEST BID MEETING THE REQUIREMENTS OF THE PROPER SPECIFICATIONS THEREFOR BE ACCEPTED.