B-114132, APR 27, 1953

B-114132, APR 27, 1953

PRECIS-UNAVAILABLE

FIRST LIEUTENANT RALTY H. COCHRAN, USAF:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1953, AND ENCLOSURES, TRANSMITTED TO THIS OFFICE FOR APPROPRIATE ACTION BY THE DIRECTOR OF FINANCE UNDER DATE OF MARCH 6, 1953, REQUESTING A DECISION AS TO WHETHER AWARD OF A CONTRACT PROPERLY MAY BE MADE TO THE PARTNERSHIP OF PETTY & PETTY, SAN ANTONIO, TEXAS, ON THE BASIS OF ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. 41-606-53-37.

YOUR LETTER STATES THAT UPON OPENING AND EXAMINATION OF THE BIDS RECEIVED IT WAS ESTABLISHED THAT THE OFFER OF PETTY & PETTY WAS THE LOWEST BID RECEIVED; HOWEVER, IT WAS NOTED THAT SUCH BID DID NOT SHOW THE NUMBER OF CALENDAR DAYS WITHIN WHICH THE CONTRACT WORK WOULD BE COMPLETED AS REQUIRED BY THE INVITATION. WHEN SUCH DEFICIENCY WAS NOTED A PARTNER OF THE FIRM WHO WAS PRESENT AT THE TIME THE BIDS WERE OPENED WAS PERMITTED TO INSERT THE NUMBER OF DAYS (75, LATER REDUCED TO 60), IT WOULD REQUIRE TO COMPLETE THE CONTRACT. THEREAFTER, THE FORGY CONSTRUCTION COMPANY, ONE OF THE BIDDERS WHO RESPONDED TO THE INVITATION, BY LETTER DATED JANUARY 24, 1953, PROTESTED THE AWARDING OF A CONTRACT TO THE LOW BIDDER UPON THE GROUNDS THAT SINCE THE BID WAS INCOMPLETE IT WAS NOT RESPONSIVE, AND THAT THE LOW BIDDER SHOULD NOT HAVE BEEN PERMITTED TO SUPPLY SUCH A DEFICIENCY AFTER THE BIDS WERE OPENED. ALSO, THE PROTESTING BIDDER REFERS TO A PREVIOUS BID SUBMITTED BY THE SAME PARTNERSHIP, IN RESPONSE TO ANOTHER INVITATION FOR THE ALTERATION OF THE COMMISSARY AT THE BASE, WHEREIN ERROR WAS ALLEGED IN THE COMPUTATION OF ITS PROPOSAL. UNDER THE FOREGOING CIRCUMSTANCES IT WAS THE CONCLUSION OF THE PROTESTING BIDDER THAT THROUGH THE SUBMISSION OF INCORRECT OR INCOMPLETE BIDS THE LOW BIDDER WAS BEING EXTENDED THE RIGHT - IN UNJUST DISCRIMINATION AGAINST THE OTHER BIDDERS - TO CHOOSE WHICH JOBS IT WILL TAKE AFTER THE BIDS WERE OPENED. IN VIEW OF THAT PROTEST YOU STATE THAT YOU HAVE DEFERRED AWARDING THE CONTRACT TO PETTY & PETTY AND REQUEST TO BE ADVISED AS TO THE PROPER ACTION TO BE TAKEN.

WITH RESPECT TO THE REFERRED-TO ERRONEOUS BID PREVIOUSLY SUBMITTED BY PETTY & PETTY, THE ENTIRE RECORD THERE INVOLVED WAS THOROUGHLY CONSIDERED BY THIS OFFICE AND IT WAS CONCLUDED THAT A BONA FIDE MISTAKE HAD BEEN MADE WHICH PRECLUDED THE ACCEPTANCE THEREOF SINCE NO LEGALLY BINDING CONTRACT COULD HAVE BEEN CONSUMMATED UNDER THOSE CIRCUMSTANCES. NOTWITHSTANDING THAT FACT, IT IS APPARENT THAT SUCH TRANSACTION HAS NO BEARING ON THE QUESTION PRESENTED IN THIS CASE.

REGARDING THE QUESTION OF WHETHER AWARD MAY BE MADE TO THE LOWEST BIDDER WHO WAS PERMITTED TO SUPPLY THE ABOVE-MENTIONED DEFICIENCY IN ITS OFFER AFTER OPENING OF THE BIDS, PARAGRAPH 3 OF THE INVITATION SPECIFICALLY RESERVED THE RIGHT IN THE CONTRACTING OFFICER TO WAIVE ANY INFORMALITY IN THE BIDS RECEIVED. IT HAS BEEN HELD REPEATEDLY BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN THIS TYPE OF CASE THAT WHERE THE DEVIATION TO BE WAIVED OR THE DEFICIENCY TO BE SUPPLIED IN A BID, AFTER OPENING, CONCERNS ITS SUBSTANCE SO AS TO AFFECT THE PRICE, QUANTITY, OR QUALITY OF THE ARTICLE OR THE WORK TO BE PERFORMED, SUCH A CHANGE PREJUDICES THE RIGHTS OF OTHER BIDDERS AND SHOULD NOT BE PERMITTED. CONSEQUENTLY, THE CONTROLLING FACT IS NOT WHETHER THE INVITATION REQUIRED THE BIDDER TO STATE THE NUMBER OF DAYS IN WHICH HE WOULD COMPLETE THE WORK, BUT WHETHER, BECAUSE OF HIS FAILURE TO DO SO, HIS BID LACKS SOME SUBSTANTIAL COMMITMENT THE SUPPLYING OF WHICH WOULD SO VARY HIS OBLIGATION AS TO PREJUDICE OTHER BIDDERS. THE INVITATION DID NOT SPECIFY A COMPLETION DATE FOR THE WORK NOR PROVIDE LIQUIDATED DAMAGES FOR DELAY IN COMPLETION; AND IT CONTAINED NOTHING TO INDICATE THAT THE PERFORMANCE PERIOD WOULD BE A FACTOR IN MAKING AWARD. UNDER THOSE CIRCUMSTANCES, BIDDERS WOULD BE JUSTIFIED IN CONSIDERING THAT PERFORMANCE WAS DESIRED WITHIN A REASONABLE TIME AND IN COMPUTING THEIR BIDS ON THE BASIS OF PERFORMANCE WITHIN SUCH REASONABLE TIME AS WOULD RESULT IN THE LOWEST COMPETITIVE PRICE. CONVERSELY, THE BIDDER, ALTHOUGH FAILING TO SPECIFY A DATE OF COMPLETION, COULD BE HELD TO A COMMITMENT TO COMPLETE WITHIN A REASONABLE TIME REGARDLESS OF WHETHER THE DEFICIENCY WERE SUPPLIED. THAT WAS, IN EFFECT, THE UNDERTAKING WHICH THE INVITATION CONTEMPLATED. THEREFORE, THE LOW BIDDER'S FAILURE TO STATE A COMPLETION DATE IS NOT, IN THIS CASE, A SUBSTANTIAL DEVIATION FROM THE REQUIREMENTS OF THE ADVERTISED SPECIFICATIONS.

IN VIEW OF THE FACT THAT THE BID OF PETTY & PETTY IS APPROXIMATELY $1,200 LESS THAN THE NEXT LOWEST BID, AND SINCE THE LOWEST BIDDER HAS CORRECTED THE DEFICIENCY BY AGREEING TO COMPLETE THE WORK WITHIN 60 DAYS, BEING THE LOWEST PERFORMANCE PERIOD SHOWN IN THE ABSTRACT OF BIDS, AWARD OF THE CONTRACT SHOULD BE MADE TO PETTY & PETTY IN ORDER THAT THE INTERESTS OF THE GOVERNMENT MAY BE SERVED.