B-123905, MAY 25, 1955, 34 COMP. GEN. 633

B-123905: May 25, 1955

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CONTRACTS - AWARDS - ACCEPTANCE OR REJECTION OF BIDS WHERE THE LOW BID FOR REPAIR OF A WATER DISTRIBUTION SYSTEM IS OUT OF LINE WITH OTHER BIDS. IT IS ESTABLISHED. A PROVISION IN A BID INSTRUCTION REQUIRING BIDDERS TO COVER ENTIRE WORK AND TO FILL IN ALL APPLICABLE BLANK SPACES WAS SOLELY FOR THE BENEFIT OF THE GOVERNMENT. 1955: REFERENCE IS MADE TO YOUR LETTER OF MAY 4. TO HAVE BEEN MADE IN ITS BID FOR THE REPAIR OF THE WATER DISTRIBUTION SYSTEM. WHETHER YOU ARE AUTHORIZED TO ACCEPT THE BID OF THE NEXT LOWEST BIDDER. PROPERLY WAS NOTED BY THE CONTRACTING OFFICER SINCE THE BID WAS OUT OF LINE WITH THE TWO OTHER AGGREGATE BIDS OF $26. ITS ALLEGATIONS OF ERROR IS REASONABLY SUBSTANTIATED BY ITS WORKSHEETS CONSISTING OF SIX PAGES.

B-123905, MAY 25, 1955, 34 COMP. GEN. 633

CONTRACTS - AWARDS - ACCEPTANCE OR REJECTION OF BIDS WHERE THE LOW BID FOR REPAIR OF A WATER DISTRIBUTION SYSTEM IS OUT OF LINE WITH OTHER BIDS, AND IT IS ESTABLISHED, PRIOR TO AWARD, THAT THE BIDDER FAILED TO INCLUDE AN AMOUNT FOR REMOVING WATER FROM THE EXCAVATION, THE BID SHOULD BE DISREGARDED. A PROVISION IN A BID INSTRUCTION REQUIRING BIDDERS TO COVER ENTIRE WORK AND TO FILL IN ALL APPLICABLE BLANK SPACES WAS SOLELY FOR THE BENEFIT OF THE GOVERNMENT, SO THAT WHERE A LOW BID FAILED TO INCLUDE AN ALTERNATE FOR ONE ITEM ALL BIDS MAY BE REJECTED AND THE CONTRACT READVERTISED, OR THE OMISSION TREATED AS AN INFORMALITY WHICH DID NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS, AND THE BID ACCEPTED, PROVIDED SUCH ACTION WOULD BE AS ADVANTAGEOUS TO THE GOVERNMENT AS READVERTISING.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO CAPTAIN ROBERT R. BARTHOLOMEW, UNITED STATES AIR FORCE, MAY 25, 1955:

REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE ERROR ALLEGED BY DAVID E. HORNE, INC., TO HAVE BEEN MADE IN ITS BID FOR THE REPAIR OF THE WATER DISTRIBUTION SYSTEM, PALM BEACH AIR FORCE BASE, AND IN THE EVENT THAT BID MAY BE DISREGARDED, WHETHER YOU ARE AUTHORIZED TO ACCEPT THE BID OF THE NEXT LOWEST BIDDER, THE MURPHY CONSTRUCTION COMPANY.

THE PROBABILITY OF ERROR IN THE LOW AGGREGATE BID OF $15,215.95 ON ITEMS NOS. 1, 2 AND 4 TO 15, INCLUSIVE (EXCLUDING THE ALTERNATE BID REQUESTED UNDER ITEM NO. 3), SUBMITTED BY DAVID E. HORNE, INC., PROPERLY WAS NOTED BY THE CONTRACTING OFFICER SINCE THE BID WAS OUT OF LINE WITH THE TWO OTHER AGGREGATE BIDS OF $26,340.30 AND $33,900.91 ON THE SAME ITEMS AND WITH THE PRIOR ESTIMATED COST OF $34,368 FOR THE CONTRACT WORK. UPON BEING REQUESTED TO VERIFY ITS BID, THE CORPORATION ADVISED THAT IT MADE AN ERROR IN THAT IT FAILED TO INCLUDE ANY AMOUNT IN ITS BID TO COVER THE COSTS OF REMOVING WATER WHICH REASONABLY MAY BE EXPECTED TO ACCUMULATE UPON MAKING THE NUMEROUS EXCAVATIONS REQUIRED UNDER SEVERAL ITEMS. ITS ALLEGATIONS OF ERROR IS REASONABLY SUBSTANTIATED BY ITS WORKSHEETS CONSISTING OF SIX PAGES, ON THE LAST OF WHICH ARE SHOWN CERTAIN ENTRIES OF ADDITIONAL AMOUNTS, PER UNIT, FOR ITEMS NOS. 1, 5, 9 AND 11, TO COVER THE REFERRED-TO ESTIMATED COST OF "DEWATERING.' HENCE, IT APPEARS THAT THE BIDDER INTENDED TO INCLUDE IN ITS BID A CHARGE FOR THIS ITEM OF COST BUT INADVERTENTLY FAILED TO DO SO. WHILE THE INTENDED BID HAS NOT BEEN ESTABLISHED, THE FACTS AND EVIDENCE OF RECORD WARRANT THE CONCLUSION THAT THE CORPORATION MADE A BONA FIDE ERROR IN ITS BID, AS ALLEGED.

ACCORDINGLY, SINCE YOU HAD REASON TO BELIEVE THAT THE BID OF DAVID E. HORNE, INC., MIGHT BE ERRONEOUS AND SINCE SUCH BELIEF WAS CONFIRMED AND THE ERROR WAS EXPLAINED SATISFACTORILY BY THE CORPORATION PRIOR TO AWARD, THE BID SHOULD BE DISREGARDED--- THE FACTS AND CIRCUMSTANCES IN THE CASE NOT BEING SUCH AS TO WARRANT A DEPARTURE FROM THE BASIC RULE THAT BIDS MAY NOT BE CHANGED AFTER OPENING. SEE 17 COMP. GEN. 575.

THE FAILURE OF MURPHY CONSTRUCTION COMPANY, THE NEXT LOWEST BIDDER ON ITEMS 1, 2 AND 4 TO 15 INCLUSIVE, TO RESPOND TO THE REQUEST FOR AN ALTERNATE BID UNDER ITEM NO. 3 CONSTITUTES NO BASIS, SUFFICIENT IN ITSELF, TO REQUIRE A REJECTION OF THE BID. THE INSTRUCTION TO BIDDERS THAT " ALL BIDS MUST BE FOR THE ENTIRE WORK AND MUST HAVE EACH APPLICABLE BLANK SPACE FILLED IN" WAS INTENDED SOLELY FOR THE BENEFIT OF THE GOVERNMENT AND, IN FACT, THE BID AS MADE COVERS THE "ENTIRE WORK" IF THE AWARD IS MADE ON THE BASIS OF INCLUDING ITEM NO. 2 IN LIEU OF THE ALTERNATE ITEM NO. 3. IF IT BE ADMINISTRATIVELY DETERMINED TO AWARD THE CONTRACT ON THAT BASIS, THE OMISSION IN THE BID OF REQUESTED QUOTATIONS UNDER ITEM NO. 3 (ALTERNATE) MAY BE REGARDED AS AN INFORMALITY WHICH DID NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS AND, AS SUCH, MAY BE WAIVED. SEE 26 COMP. GEN. 49, 50. ACCORDINGLY, WHILE ALL BIDS MAY BE REJECTED AND THE CONTRACT READVERTISED, THERE WOULD BE NO LEGAL BASIS FOR OBJECTION TO THE ACCEPTANCE OF THE BID OF THE MURPHY CONSTRUCTION COMPANY IF IT BE ADMINISTRATIVELY CONSIDERED THAT SUCH ACTION WOULD BE AS ADVANTAGEOUS TO THE UNITED STATES AS READVERTISING THE CONTRACT.

THE PAPERS, WITH THE EXCEPTION OF YOUR STATEMENT OF THE FACTS AND THE LETTER OF MAY 3, 1955, FROM DAVID E. HORNE, INC., WITH SUPPORTING WORKSHEETS, ARE RETURNED.