B-119732, APRIL 22, 1954, 33 COMP. GEN. 508

B-119732: Apr 22, 1954

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CONTRACTS - SPECIFICATIONS - WAIVER OF MINOR DEVIATIONS LOW BIDDER WHOSE BID FAILED TO SHOW IT WAS BASED ON CONSIDERATION OF ALL ADDENDA. STATED ALL ADDENDA WERE IN FACT RECEIVED BY BIDDER. MAY BE CONSIDERED ELIGIBLE FOR AWARD IF IT IS ADMINISTRATIVELY DETERMINED THAT THE REPRESENTATIVE HAD LEGAL AUTHORITY TO BIND BIDDER OR THAT ADDITIONAL ADDENDA COULD NOT AFFECT PRICE. 1954: I HAVE YOUR LETTER OF APRIL 15. THE ABSTRACT OF BIDS SHOWS THAT THE TWELVE BIDS RECEIVED ON ITEM 1 WERE AS FOLLOWS: EDWARD R. THE COMPANY ADVISED THAT IT HAD MADE AN ERROR IN ITS BID IN THAT THE COST OF CERTAIN PIPE WAS COMPUTED AT $1.27 RATHER THAN $2.27 PER LINEAL FOOT. THE CIRCUMSTANCES ARE NOT SUCH AS TO CONCLUSIVELY ESTABLISH WHAT THE CORRECT BID WOULD HAVE BEEN.

B-119732, APRIL 22, 1954, 33 COMP. GEN. 508

CONTRACTS - SPECIFICATIONS - WAIVER OF MINOR DEVIATIONS LOW BIDDER WHOSE BID FAILED TO SHOW IT WAS BASED ON CONSIDERATION OF ALL ADDENDA, AS REQUIRED BY INVITATION WHICH PLACED HIM IN POSITION WHERE HE COULD MAKE AN ELECTION AFTER OPENING EITHER TO ABIDE BY BID AS INCLUDING ADDITIONAL ADDENDA OR TO CLAIM NONRECEIPT AND NONINCLUSION OF SUCH ADDENDA, BUT WHOSE REPRESENTATIVE, PRIOR TO BID OPENING, STATED ALL ADDENDA WERE IN FACT RECEIVED BY BIDDER, MAY BE CONSIDERED ELIGIBLE FOR AWARD IF IT IS ADMINISTRATIVELY DETERMINED THAT THE REPRESENTATIVE HAD LEGAL AUTHORITY TO BIND BIDDER OR THAT ADDITIONAL ADDENDA COULD NOT AFFECT PRICE, QUANTITY, OR QUALITY OF WORK.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE NAVY, APRIL 22, 1954:

I HAVE YOUR LETTER OF APRIL 15, 1954, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF MAKING AN AWARD OF A CONTRACT TO EITHER EDWARD R. SIPLE COMPANY OR PAUL HARDEMAN, INC., ON THE BASIS OF THEIR BIDS SUBMITTED IN RESPONSE TO SPECIFICATION NO. 35137, COVERING THE CONSTRUCTION OF AN AVIATION FUEL PIPELINE FROM BULK STORAGE AT NORWALK, CALIFORNIA, TO MARINE CORPS AIR STATION, EL TORO, CALIFORNIA.

THE ABSTRACT OF BIDS SHOWS THAT THE TWELVE BIDS RECEIVED ON ITEM 1 WERE AS FOLLOWS: EDWARD R. SIPLE COMPANY, $887,677, PAUL HARDEMAN, INC., $1,054,140, HOOD CONSTRUCTION COMPANY, $1,062,350, AND THAT THE NINE OTHER BIDS RANGED ON UP TO $1,197.039.

DUE TO THE RANGE OF BIDS RECEIVED, THE OFFICER-IN-1CHARGE OF CONSTRUCTION BY LETTER DATED FEBRUARY 18, 1954, REQUESTED EDWARD R. SIPLE COMPANY TO CHECK AND CONFIRM ITS BID PRICES. BY LETTERS OF FEBRUARY 23 AND 24, 1954, THE COMPANY ADVISED THAT IT HAD MADE AN ERROR IN ITS BID IN THAT THE COST OF CERTAIN PIPE WAS COMPUTED AT $1.27 RATHER THAN $2.27 PER LINEAL FOOT. THE COMPANY SUBMITTED IN SUPPORT OF THE ALLEGED ERROR ITS WORK SHEETS AND CERTAIN QUOTATIONS RECEIVED FROM THE SUBCONTRACTORS. IN VIEW OF THE ERROR, THE COMPANY REQUESTED THAT ITS BID BE INCREASED BY AT LEAST THE AMOUNT OF $159,100 OR THAT IT BE PERMITTED TO WITHDRAW THE BID.

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO DOUBT THAT EDWARD R. SIPLE COMPANY MADE AN ERROR IN ITS BID AS ALLEGED. HOWEVER, THE CIRCUMSTANCES ARE NOT SUCH AS TO CONCLUSIVELY ESTABLISH WHAT THE CORRECT BID WOULD HAVE BEEN. SEE 17 COMP. GEN. 575. ACCORDINGLY, THE BID OF EDWARD R. SIPLE COMPANY SHOULD BE DISREGARDED.

THE QUESTION THEN ARISES AS TO WHETHER THE SECOND LOW BID OF PAUL HARDEMAN, INC., PROPERLY MAY BE CONSIDERED FOR AWARD. THE INVITATION FOR BIDS REQUIRED BIDDERS TO INDICATE IN THEIR BIDS THAT THE PRICES QUOTED WERE BASED ON CONSIDERATION OF ALL ADDENDA ISSUED IN CONNECTION WITH THE SPECIFICATIONS. THE SPECIFICATIONS AS ORIGINALLY ISSUED TO PROSPECTIVE BIDDERS INCLUDED ADDENDA NOS. 1 AND 2 AND, THEREAFTER, ADDITIONAL ADDENDA NOS. 3 THROUGH 6 WERE ISSUED.

IT IS REPORTED THAT IMMEDIATELY PRIOR TO THE OPENING OF THE BIDS ON FEBRUARY 18, 1954, IN RESPONSE TO THE QUESTION AS TO WHETHER ALL BIDS WERE IN, A REPRESENTATIVE OF PAUL HARDEMAN, INC., ORALLY ACKNOWLEDGED RECEIPT OF ALL SIX ADDENDA. HOWEVER, WHEN THE BIDS WERE OPENED, IT WAS FOUND THAT THE BID OF PAUL HARDEMAN, INC., DID NOT COMPLY WITH THE REQUIREMENT THAT THE BIDDER INDICATE THE ADDENDA CONSIDERED IN COMPUTING THE BID PRICES.

HARDEMAN'S BID, AS SUBMITTED, COULD BE ACCEPTED ONLY ON THE BASIS OF THE ORIGINAL SPECIFICATIONS AND ADDENDA NOS. 1 AND 2 WHICH ACCOMPANIED THE SPECIFICATIONS, SINCE THERE WAS NO INDICATION THAT HE EVER RECEIVED OR CONSIDERED ADDENDA NOS. 3 THROUGH 6. IT IS UNDERSTOOD THAT THESE ADDENDA COVER ADDITIONAL WORK. THUS, UNLESS THIS DEVIATION BE CONSIDERED MATERIAL, AND NOT SUBJECT TO WAIVER AFTER OPENING, HARDEMAN WAS IN A POSITION WHERE HE COULD MAKE AN ELECTION, AFTER OPENING, EITHER TO ABIDE BY HIS BID AS INCLUDING ADDENDA NOS. 3 THROUGH 6 OR TO CLAIM NONRECEIPT AND NONINCLUSION OF SUCH ADDENDA.

THE RULE IS THAT ONLY THOSE DEVIATIONS MAY BE WAIVED WHICH DO NOT GO TO THE SUBSTANCE OF THE BID AND WHICH DO NOT WORK AN INJUSTICE TO THE OTHER BIDDERS. SEE 30 COMP. GEN. 179. WHILE IT IS REPORTED THAT A REPRESENTATIVE OF HARDEMAN STATED SPECIFICALLY, PRIOR TO THE BID OPENING, THAT ALL SIX ADDENDA WERE IN FACT RECEIVED BY HARDEMAN THERE IS NO SHOWING THAT THE REPRESENTATIVE HAD LEGAL AUTHORITY TO ACT FOR OR BIND HARDEMAN IN THAT REGARD. IF HE DID HAVE SUCH AUTHORITY, THE DEVIATION WAS CORRECTED BEFORE THE BIDS WERE OPENED, AND NO VALID OBJECTION WOULD EXIST TO THE CONSIDERATION OF HARDEMAN'S BID. HOWEVER, IF HE DID NOT HAVE SUCH AUTHORITY, HARDEMAN, AFTER THE BID OPENING, WAS FREE EITHER TO RATIFY OR DISAVOW THE STATEMENT BY THE REPRESENTATIVE. IN THAT CONNECTION IT HAS BEEN REPORTED TO THIS OFFICE THAT THE OFFICER WHO OPENED THE BIDS ASKED THE REPRESENTATIVE IF HE HAD A POWER OF ATTORNEY TO ACT FOR HARDEMAN AND HE REPLIED IN THE NEGATIVE.

ACCORDINGLY, YOU ARE ADVISED THAT IF IT BE DETERMINED WITHOUT DOUBT THAT THE REPRESENTATIVE HAD LEGAL AUTHORITY TO BIND HARDEMAN, OR THAT ADDENDA NOS. 3 THROUGH 6 ARE OF SUCH A NATURE AS COULD NOT AFFECT THE PRICE, QUANTITY OR QUALITY OF THE WORK, THERE WOULD BE NO OBJECTION TO MAKING AWARD TO HARDEMAN. OTHERWISE, THE BID SHOULD BE CONSIDERED AS NOT RESPONSIVE TO THE INVITATION AND SHOULD BE DISREGARDED.