B-128247, JUN. 27, 1956

B-128247: Jun 27, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JUNE 11. A DECISION IS REQUESTED AS TO WHETHER THE CONTRACTOR'S REQUEST FOR RELIEF MAY BE GRANTED. WAS SET FORTH IN THE CONTRACT AS FOLLOWS: "DEPARTMENT OF THE ARMY FORM ENG 1618 UNIT PRICE SCHEDULE ITEM ESTIMATED UNIT NO. 052.00" THE PURCHASING AND CONTRACTING OFFICER REPORTED THAT THE PERFORMANCE OF THE WORK COVERED BY ITEM 2 OF THE CONTRACT WAS NOT REQUIRED BECAUSE THE AREA OF THE BUILDING IN WHICH THE WORK WAS TO BE PERFORMED WAS DAMAGED BY FIRE AND IT WAS NOT KNOWN WHEN NECESSARY REPAIRS WOULD BE COMPLETED. THAT THE CHANGE ORDER WAS ACCEPTED BY THE CONTRACTOR. THE CONTRACTOR STATED THAT THE LUMP SUM AMOUNT OF $583 FOR ITEM 2 IS INCORRECT BECAUSE SUCH AMOUNT REPRESENTS ITS ESTIMATE FOR INSTALLATION OF BAFFLES IN THIRTEEN BUILDINGS INSTEAD OF JUST THE ONE BUILDING COVERED BY ITEM 2.

B-128247, JUN. 27, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JUNE 11, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO A MISTAKE IN BID ALLEGED BY B. JOHNSON AND SONS, MT. HOLLY, NEW JERSEY, AFTER AWARD OF CONTRACT NO. DA-28-013-AI-1425, DATED MARCH 3, 1955. IN VIEW OF THE FACTS SET FORTH IN THE FILE, A DECISION IS REQUESTED AS TO WHETHER THE CONTRACTOR'S REQUEST FOR RELIEF MAY BE GRANTED.

UNDER THE CONTRACT OF MARCH 3, 1955, B. JOHNSON AND SONS AGREED TO FURNISH ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORM ALL WORK REQUIRED IN THE RELOCATING OF HEATING DUCTS IN CONVERTED FAMILY QUARTERS AT FORT DIX, NEW JERSEY, FOR A TOTAL ESTIMATED CONTRACT PRICE OF $4,052. THE WORK REQUIRED TO BE PERFORMED UNDER ITEMS 1, 2, AND 3, WAS SET FORTH IN THE CONTRACT AS FOLLOWS: "DEPARTMENT OF THE ARMY

FORM ENG 1618

UNIT PRICE SCHEDULE ITEM ESTIMATED

UNIT

NO. DESCRIPTION QUANTITY UNIT COST AMOUNT

1. FOR ALL WORK, AS SPECIFIED, IN THE

FOLLOWING BUILDINGS, INCLUDING

INSTALLATION OF CEMENT-ASBESTOS BAFFLE

PLATES, BUT EXCLUDING NEW DUCT

INSULATION: JOB LOT LUMP

SUM $2,879.00

T-05-52 T-06-14

T-06-7 T-06-15

T-06-8 T-06-16

T-06-10 T-06-28

T-06-11 T-06-30

T-06-13 T-06-31

2. INSTALL CEMENT-ASBESTOS BAFFLE

ONLY AS SPECIFIED IN BUILDING

T-06-12 JOB LOT LUMP

SUM $ 583.00

3. FURNISH AND INSTALL NEW DUCT

INSULATION, AS SPECIFIED 1,000 SQ.FT. .59 $ 590.00

TOTAL $4,052.00"

THE PURCHASING AND CONTRACTING OFFICER REPORTED THAT THE PERFORMANCE OF THE WORK COVERED BY ITEM 2 OF THE CONTRACT WAS NOT REQUIRED BECAUSE THE AREA OF THE BUILDING IN WHICH THE WORK WAS TO BE PERFORMED WAS DAMAGED BY FIRE AND IT WAS NOT KNOWN WHEN NECESSARY REPAIRS WOULD BE COMPLETED. UNDER DATE OF OCTOBER 11, 1955, THE CONTRACTING OFFICER ISSUED CHANGE ORDER NO. 2, PURPORTING TO AMEND THE CONTRACT TO OMIT THE INSTALLATION OF THE CEMENT-ASBESTOS BAFFLE IN BUILDING NO. T-06 12, COVERED BY ITEM 2 OF THE UNIT PRICE SCHEDULE, AND TO DECREASE THE CONTRACT PRICE BY $583 BY REASON OF THE OMISSION. IT DOES NOT APPEAR, HOWEVER, THAT THE CHANGE ORDER WAS ACCEPTED BY THE CONTRACTOR, WHICH HAD ALREADY, BY LETTER OF SEPTEMBER 12, 1955, NOTIFIED THE CONTRACTING OFFICER OF THE ERROR CLAIMED WITH RESPECT TO THE $583 ITEM.

THE CONTRACTOR STATED THAT THE LUMP SUM AMOUNT OF $583 FOR ITEM 2 IS INCORRECT BECAUSE SUCH AMOUNT REPRESENTS ITS ESTIMATE FOR INSTALLATION OF BAFFLES IN THIRTEEN BUILDINGS INSTEAD OF JUST THE ONE BUILDING COVERED BY ITEM 2. FURTHER, THAT HAD THE WORK BEEN PERFORMED IN BUILDING NO. T-06- 12, AS ORIGINALLY INTENDED, THE ERROR WOULD NOT HAVE MADE ANY DIFFERENCE SINCE THE CONTRACTOR WOULD HAVE BEEN COMPENSATED IN FULL FOR ITEMS 1 AND 2. WITH THE LETTER OF JUNE 11, 1956, THERE WAS ENCLOSED A DETAILED BREAKDOWN OF THE CONTRACTOR'S ESTIMATE OF $44.85 FOR INSTALLING THE CEMENT -ASBESTOS BAFFLE IN ONE BUILDING. ON THE BASIS OF THE ALLEGED MISTAKE IN THE PREPARATION OF ITS BID, THE CONTRACTOR SEEKS ADDITIONAL COMPENSATION OF $538.15 FOR THE INSTALLATION OF BAFFLES IN THE TWELVE BUILDINGS COVERED BY ITEM 1, AT A COST OF $44.85 PER BUILDING. THE PURCHASING AND CONTRACTING OFFICER RECOMMENDS THAT THE CONTRACTOR'S REQUEST FOR ADDITIONAL COMPENSATION BE GIVEN FAVORABLE CONSIDERATION, IT BEING STATED THAT THE POST ENGINEER CONSIDERS THE COST OF $44.85 FOR FURNISHING AND INSTALLING A CEMENT-ASBESTOS BAFFLE IN BUILDING NO. T 06-12 TO BE A FAIR AND REASONABLE PRICE.

IT SEEMS REASONABLY CLEAR, AS CONTENDED BY THE CONTRACTOR, THAT IN THE PREPARATION OF ITS BID IN THIS CASE THE SUM OF $583, SET FORTH IN THE CONTRACT AS THE COST OF PERFORMING THE WORK COVERED BY ITEM 2, WAS, IN FACT, INTENDED TO COVER THE COST OF INSTALLATION OF THE THIRTEEN BAFFLES CALLED FOR IN ITEMS 1 AND 2. IT ALSO APPEARS THAT, BY REASON OF THE STATEMENT IN ARTICLE 1-03B OF THE CONTRACT SPECIFICATIONS THAT "SIMILAR CONSTRUCTION HAS BEEN ACCOMPLISHED IN BUILDING T-06-12, WHICH MAY BE VIEWED BY ALL BIDDERS," THERE WAS SOME JUSTIFICATION FOR THE CONTRACTOR TO HAVE INCLUDED IN ITS BID ON ITEM 1 ONLY THAT PART OF THE WORK WHICH HAD BEEN ACCOMPLISHED IN BUILDING T 06-12, WHICH DID NOT INCLUDE THE ASBESTOS- CEMENT BAFFLES.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES SHOWN BY THE RECORD, IT IS CONCLUDED THAT THE CONTRACTOR IS PROPERLY ENTITLED TO BE PAID THE ADDITIONAL AMOUNT OF $538.15. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER COVERING PAYMENT.