B-124297, JUL. 11, 1955

B-124297: Jul 11, 1955

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DISTRICT OF COLUMBIA: REFERENCE IS MADE TO YOUR LETTER OF JUNE 13. REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY THE FIRM OF NANCE AND VIVADELLI TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS OPENED ON MAY 19. THE WORK TO BE PERFORMED WAS DIVIDED INTO SEVERAL ITEMS AND BIDDERS WERE REQUIRED TO QUOTE UNIT PRICES ON MOST ITEMS BASED UPON THE ESTIMATED QUANTITIES SPECIFIED. THE AWARD IS TO BE MADE TO THE BIDDER QUOTING THE LOWEST TOTAL BID BASED UPON THE ESTIMATED QUANTITIES. THE TOTAL AMOUNT OF THE SIX OTHER BIDS RECEIVED ARE $823. THE COST OF EXCAVATION COVERED BY ITEM 1 WAS ESTIMATED AT $6 PER CUBIC YARD. THE BIDDER SUBMITTED IN SUPPORT OF THE ALLEGED ERROR ITS WORKSHEETS SHOWING THE BASIS UPON WHICH THE BID WAS COMPUTED.

B-124297, JUL. 11, 1955

TO HONORABLE SAMUEL SPENCER, PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 13, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY THE FIRM OF NANCE AND VIVADELLI TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS OPENED ON MAY 19, 1955, FOR THE CONSTRUCTION OF THE ANACOSTIA FORCE MAIN AND GRAVITY SEWER, SECTION III, IN KENILWORTH AVENUE BETWEEN 42ND STREET AND BLAIN STREET, N.E., WASHINGTON, D.C.

THE WORK TO BE PERFORMED WAS DIVIDED INTO SEVERAL ITEMS AND BIDDERS WERE REQUIRED TO QUOTE UNIT PRICES ON MOST ITEMS BASED UPON THE ESTIMATED QUANTITIES SPECIFIED. THE AWARD IS TO BE MADE TO THE BIDDER QUOTING THE LOWEST TOTAL BID BASED UPON THE ESTIMATED QUANTITIES. ITEM 1 COVERS EXCAVATION, ETC.; ITEM 2 THE FURNISHING AND LAYING OF 72 INCH DIAMETER REINFORCED CULVERT SEWER PIPE; AND ITEM 3 THE FURNISHING AND LAYING OF 66 INCH DIAMETER PRESSURE SEWER PIPE.

IN RESPONSE TO THE INVITATION, NANCE AND VIVADELLI SUBMITTED A BID QUOTING A UNIT PRICE OF $6 PER CUBIC YARD FOR ITEM 1, AND A TOTAL PRICE OF $726,461.40 FOR ALL ITEMS BASED ON THE ESTIMATED QUANTITIES SPECIFIED. THE TOTAL AMOUNT OF THE SIX OTHER BIDS RECEIVED ARE $823,633, $866,844, $875,915, $885,288, $922,870, AND $1,100,203.04. THE ENGINEERING FIRM EMPLOYED TO PREPARE THE DRAWINGS FOR THE WORK ESTIMATED THE REASONABLE COST FOR ALL THE WORK AT $686,940, AND THE COST OF EXCAVATION COVERED BY ITEM 1 WAS ESTIMATED AT $6 PER CUBIC YARD.

BY LETTER DATED MAY 26, 1955 (SIX DAYS AFTER THE BID OPENING) AND SUBSEQUENT CORRESPONDENCE, NANCE AND VIADELLI ADVISED THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE ON ITEM 1 OF ITS BID. THE BIDDER SUBMITTED IN SUPPORT OF THE ALLEGED ERROR ITS WORKSHEETS SHOWING THE BASIS UPON WHICH THE BID WAS COMPUTED. IN SUBSTANCE, THE BIDDER ALLEGES THAT ON ITEM 1 (EXCAVATION ITS ENGINEER ESTIMATED ON SCRATCH PAPER THE COST OF THE LABOR AND CERTAIN EQUIPMENT AS $2.21 PER CUBIC YARD BASED ON AN 18-MAN CREW BEING ABLE TO EXCAVATE 320 CUBIC YARDS PER DAY; THAT ONE OF THE OFFICIALS OF THE FIRM DOUBTED THAT THEY COULD EXCAVATE 320 CUBIC YARDS PER DAY, PROBABLY ONLY HALF THAT QUANTITY, AND THEREFORE INSTRUCTED THE ENGINEER TO ADD $2, MAKING A TOTAL OF $4.21 PER CUBIC YARD, WHICH IS THE AMOUNT SHOWN ON THE WORKSHEET. THE TOTAL FOR LABOR, MATERIALS AND MISCELLANEOUS EXPENSES, EXCEPT TAMPING, WAS SHOWN AS $256,232.13, FROM WHICH THERE WAS DEDUCTED THE SUM OF $43,942, LEAVING A TOTAL OF $212,290.13, WHICH, AFTER ADDING THE COST OF TAMPING, PRODUCED A PRICE OF $6 PER CUBIC YARD, WHICH IS THE AMOUNT QUOTED IN THE BID FOR ITEM 1.

THE AMOUNT OF $43,942, DEDUCTED IN THE COMPUTATION OF ITEM 1, REPRESENTS THE TOTAL OF THE SUMS INCLUDED IN ITEMS 2 AND 3 FOR LAYING THE PIPE. APPARENTLY, WHEN THE ENGINEER WAS INSTRUCTED TO INCREASE THE CREW COST FOR EXCAVATION FROM $2.21 TO $4.21 PER CUBIC YARD, HE UNDERSTOOD OR BELIEVED THAT THE CREW WOULD LAY THE PIPE AS IT PROGRESSED, AND THAT SINCE THE COST OF LAYING THE PIPE WAS ALREADY INCLUDED IN ITEMS 2 AND 3, SUCH AMOUNT SHOULD BE DEDUCTED FROM ITEM 1 IN ORDER TO ARRIVE AT THE TRUE COST FOR PERFORMING THE EXCAVATION. THE BIDDER ALLEGES THAT ITS ENGINEER SHOULD NOT HAVE DEDUCTED THE $43,942, AND THAT THE BID PRICE FOR ITEM 1 SHOULD HAVE BEEN $7.13 PER CUBIC YARD WHICH WOULD MAKE THE TOTAL BID $770,531.40. THE BIDDER REQUESTS THAT THE BID BE SO CORRECTED OR THAT THEY BE PERMITTED TO WITHDRAW THE BID.

THE FACTS AND EVIDENCE OF RECORD DO NOT ESTABLISH THAT NANCE AND VIVADELLI ACTUALLY MADE AN ERROR IN ITS BID IN THE SENSE OF OMITTING AN ITEM OF COST WHICH WAS INTENDED TO BE INCLUDED BUT THROUGH OVERSIGHT WAS OMITTED. RATHER, IT APPEARS THAT THE DEDUCTION IN COMPUTING THE COST OF ITEM 1 WAS A MATTER OF JUDGMENT AND THAT THE BID AS SUBMITTED WAS AS INTENDED AT THE TIME BY THE PERSON TO WHOM ITS PREPARATION HAD BEEN ENTRUSTED. IF HE DID NOT FOLLOW INSTRUCTIONS, THE ERRONEOUS BID WAS NEVERTHELESS THE RESULT OF THE FIRM'S NEGLIGENCE IN FAILING TO CHECK HIS COMPUTATIONS, AND NOT OF SUCH ERROR AS CAN BE ESTABLISHED TO AVOID THE BID. WHILE IT MAY BE THAT THE BIDDER DID NOT INTEND THAT ITS ENGINEER SHOULD DEDUCT FROM ITEM 1 THE COST OF LAYING THE PIPE, THE ENGINEER'S PURPOSE IN SO DOING DOES NOT APPEAR TO BE WITHOUT REASON SINCE THERE IS INCLUDED IN THE MAKE-UP OF THE CREW A PIPE LAYER AND IT IS STATED IN YOUR LETTER THAT AN 18-MAN CREW IS BELIEVED TO BE ADEQUATE FOR EXCAVATION, BRACING, BACKFILLING AND PIPE LAYING. FURTHERMORE, THE PRICE OF $6 PER CUBIC YARD QUOTED FOR ITEM 1 IS THE SAME AS THAT ESTIMATED BY THE CONSULTANTS AS THE REASONABLE COST FOR THE EXCAVATION, AND HIGHER THAN THE PRICES QUOTED BY THREE OTHER BIDDERS.

ACCORDINGLY, YOU ARE ADVISED THAT WE FIND NO LEGAL BASIS TO AUTHORIZE THE CORRECTION OF THE BID OR TO PERMIT NANCE AND VIVADELLI TO WITHDRAW ITS BID. SEE 17 COMP. GEN. 532; ID. 575.