B-124606, NOV. 14, 1955

B-124606, NOV. 14, 1955

TO HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JULY 6, 1955, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS AND R AND D), RELATING TO A MISTAKE IN BID ALLEGED BY THE FIVE BORO CONSTRUCTION CORPORATION, 2 LAFAYETTE STREET, NEW YORK 7, NEW YORK, UNDER CONTRACT NO. DA-30-075-ENG- 6254, DATED JULY 2, 1954. IN THE LETTER OF JULY 6, 1955, A DECISION IS REQUESTED AS TO WHETHER THE RELIEF SOUGHT BY THE CONTRACTOR MAY BE GRANTED.

BY INVITATION NO. ENG-30-075-54-268, DATED MAY 5, 1954, THE DISTRICT ENGINEER, NEW YORK DISTRICT, CORPS OF ENGINEERS, UNITED STATES ARMY,REQUESTED BIDS FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORMING ALL WORK FOR THE CONSTRUCTION OF BATTERY CONTROL AREAS AND BATTERY LAUNCHING AREAS TYPE D IN THE VICINITY OF ORANGEBURG, NEW YORK, AND OF KENSICO, NEW YORK, THE BIDS TO BE OPENED AT 2 P.M. ON JUNE 3, 1954. IN RESPONSE, THE FIVE BORO CONSTRUCTION CORPORATION SUBMITTED A BID COVERING SCHEDULE 111 IN THE AMOUNT OF $1,252,347, AND BEING THE LOWEST BID RECEIVED THE CONTRACT WAS AWARDED ACCORDINGLY. THE AWARD WAS, HOWEVER, WITHOUT PREJUDICE TO THE CONTRACTOR'S CLAIM OF ERROR.

IT IS REPORTED BY THE SUCCESSOR CONTRACTING OFFICER THAT AT 3 P.M. ON THE DAY OF THE BID OPENING, A REPRESENTATIVE OF THE FIVE BORO CONSTRUCTION CORPORATION CAME TO THE OFFICE OF THE DISTRICT ENGINEER AND ORALLY REPRESENTED THAT HIS PRINCIPAL HAD MADE A MISTAKE IN THE PREPARATION OF ITS BID, NO SPECIFIC AMOUNT BEING INDICATED, THE REPRESENTATIVE OF THE BIDDER STATING THAT IT WOULD TAKE DAYS TO CHECK THROUGH THEIR WORKING SHEETS TO LOCATE THE ITEMS IN WHICH ERRORS HAD OCCURRED. GOVERNMENT PERSONNEL SUGGESTED THAT THE BIDDER SUBMIT ITS WORKSHEETS AT ONCE, BUT THIS WAS REFUSED, THE BIDDER'S SPOKESMAN INSISTING THAT HE WOULD SUBMIT SUCH DATA ONLY AFTER HE HAD BEEN ABLE TO EXAMINE THE BIDS OF COMPETING BIDDERS--- WHICH WAS REFUSED. ON JUNE 4, 1954, THE FIVE BORO CONSTRUCTION CORPORATION SUBMITTED A PENCIL BID AND A LETTER ADVISING THAT AN ARITHMETICAL ERROR IN THE AMOUNT OF $31,000 WAS THE ONLY ERROR THAT HAD BEEN ASCERTAINED. IT WAS NOT UNTIL SEPTEMBER 24, 1954, THAT THE OFFICE OF THE DISTRICT ENGINEER RECEIVED ADDITIONAL DATA UPON WHICH THE BIDDER ALLEGED THAT IT HAD BASED ITS PENCIL ABSTRACT.

IT APPEARS FROM THE RECORD THAT THE BID OF THE FIVE BORO CONSTRUCTION CORPORATION DIFFERED FROM THE OTHER BIDS RECEIVED AND WAS INCOMPLETE IN THAT NO BID PRICES WERE INCLUDED FOR THE NUMEROUS LUMP SUM ITEMS INCLUDED IN EACH OF THE SCHEDULES. FIVE BORO'S BID WAS LIMITED TO TOTALS FOR THE ENTIRE SCHEDULES AND TO UNIT PRICE ITEMS WHICH WOULD BE NECESSARY TO PERMIT PAYMENT FOR WORK ACTUALLY PERFORMED. THE BID WAS, HOWEVER, COMPLETE AS TO ALL ELEMENTS NECESSARY TO AN AWARD OF SCHEDULE III.

IN CONCLUDING THAT THE CONTRACTOR HAD NOT SUBMITTED CLEAR AND CONVINCING EVIDENCE THAT THE ERROR ALLEGED DID IN FACT OCCUR, THE SUCCESSOR CONTRACTING OFFICER SUMMARIZED THE FACTUAL SITUATION IN THE FOLLOWING PARAGRAPH FROM HIS STATEMENT OF MAY 23, 1955:

"6. EXAMINATION OF THE EVIDENCE SUBMITTED PERMITS A SIMPLE SUMMARY OF THE SUBSTANCE OF THE ALLEGED MISTAKE. FIVE BORO'S CONTRACT ADMINISTRATOR SHORTLY BEFORE BID OPENING ADDED TOGETHER ALL THE INDIVIDUAL ITEMS IN ORDER TO OBTAIN THE TOTAL BID PRICES. IN SO DOING, AN ARITHMETIC ERROR OF $31,000 OCCURRED AND THE BID PRICE WAS FOR THAT REASON INADVERTENTLY MADE $31,000 LESS THAN WAS INTENDED. THERE IS NO INDICATION OF HOW OR WHERE OR IN WHAT ITEM THE ARITHMETIC ERROR OCCURRED. THERE IS NOTHING WHATEVER IN THE FORMAL BID SUBMITTED IN COMPETITION ON 3 JUNE 1954, TO INDICATE THAT AN ERROR MAY HAVE OCCURRED. THE SUPPORTING PAPERS WHICH WERE RECEIVED IN THIS OFFICE AFTER BID OPENING MERELY SHOW ITEMS WHICH WHEN TOTALLED AGGREGATE $31,000 MORE THAN THE BID PRICE.'

IT SEEMS FAIRLY EVIDENT THAT AT THE TIME THE BIDDER'S SPOKESMAN ALLEGED A MISTAKE IN BID--- AT 3 P.M. ON JUNE 3, 1954--- HE WAS WITHOUT ACTUAL KNOWLEDGE OF ANY ERROR. THIS VIEW IS SUPPORTED BY HIS STATEMENT THAT IT WOULD TAKE DAYS TO CHECK THROUGH THE WORKING PAPERS TO LOCATE THE ITEMS IN WHICH ERRORS HAD OCCURRED, AND BY HIS REFUSAL TO SUBMIT THE BIDDER'S WORKSHEETS. IT IS A WELL-SETTLED RULE OF THIS OFFICE THAT IN ORDER FOR CORRECTIVE ACTION TO BE TAKEN IN CONNECTION WITH AN ALLEGED MISTAKE IN BID, THE EVIDENCE OF MISTAKE MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A MISTAKE WAS MADE, IN WHAT IT CONSISTED, AND HOW IT OCCURRED. THIS REQUIRES THE IMMEDIATE PRESENTATION OF SUCH CONVINCING PROOF OF THE EXISTENCE AND CHARACTER OF THE ERROR AS TO LEAVE NO ROOM FOR DOUBT THAT THERE WAS IN FACT A BONA FIDE MISTAKE IN THE BID SOUGHT TO BE CORRECTED, AND TO REMOVE ANY REASONABLE SUSPICION THAT THE CLAIM OF ERROR IS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR OF AVOIDING THE CONSEQUENCES OF AN ILL-ADVISED BID.

IN FIRST ENDORSEMENT DATED MAY 31, 1955, THE ACTING DIVISION ENGINEER SET FORTH HIS VIEWS CONCERNING THE CLAIM IN THE FOLLOWING LANGUAGE:

"3. CONFIRMING THE FINDINGS OF THE CONTRACTING OFFICER, A REVIEW OF THE WORKSHEETS SUBMITTED BY THE CONTRACTOR FAILED TO INDICATE HOW THE ALLEGED ARITHMETIC ERROR OCCURRED, SINCE NO ONE ITEM IN SCHEDULE II REPRESENTS THE ALLEGED DIFFERENCE OF $31,000 IN THE COMPUTATION OF THE TOTAL, AND THE WORKSHEETS (INCLOSURE 7) SUBMITTED BY LETTER DATED 22 SEPTEMBER 1954 DO NOT CLARIFY OR INDICATE HOW THE ALLEGED ERROR IN CALCULATION OCCURRED OR WHAT THE TOTAL BID WOULD HAVE BEEN HAD THE ALLEGED ERROR NOT BEEN MADE.

"4. IN VIEW OF THE LACK OF CLEAR AND CONVINCING EVIDENCE OF THE FACT THAT AN ERROR WAS MADE, THE MANNER IN WHICH THE ERROR OCCURRED, AND OF THE AMOUNT THAT WOULD HAVE BEEN BID BUT FOR THE ALLEGED ERROR, THIS DIVISION CONCURS IN THE RECOMMENDATION OF THE DISTRICT ENGINEER, NEW YORK DISTRICT THAT THE CLAIM FOR CORRECTION OF THE ALLEGED MISTAKE BE DENIED.'

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, IT IS NOT ESTABLISHED THAT THE FIVE BORO CONSTRUCTION CORPORATION MADE AN ERROR IN ITS BID, AS ALLEGED. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICE IN THE AMOUNT CLAIMED.

THE LETTER OF THE DISTRICT ENGINEER DATED MAY 23, 1955, ONE COPY OF THE ENDORSEMENTS TO THE LETTER, AND ONE SET OF THE ENCLOSURES ARE BEING RETAINED IN THIS OFFICE. THE OTHER PAPERS ARE RETURNED HEREWITH.