B-128700, AUG. 8, 1956

B-128700, AUG. 8, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JULY 20, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATING TO A MISTAKE IN BID ALLEGED BY THE CHAIN LINK FENCE CORPORATION, CHICAGO, ILLINOIS, AFTER THE AWARD OF CONTRACT NO. DA-15-014-AII-4613, DATED DECEMBER 28, 1955. VIEW OF THE FACTS SET FORTH IN THE ENCLOSURES TO THE LETTER OF JULY 20, 1956, A DECISION IS REQUESTED AS TO WHETHER THE CONTRACTOR'S APPLICATION FOR RELIEF MAY BE GRANTED.

BY INVITATION NO. AII-15-014-56-68, DATED DECEMBER 6, 1955, HEADQUARTERS, THE ARMORED CENTER CENTRAL PURCHASING BRANCH, FORT KNOX, KENTUCKY, INVITED BIDS--- TO BE OPENED AT 10:30 A.M., DECEMBER 20, 1955--- FOR THE INSTALLATION OF FENCES AROUND NINETEEN CEMETERIES ON THE FORT KNOX MILITARY RESERVATION. IN RESPONSE TO THE INVITATION THE CHAIN LINK FENCE CORPORATION SUBMITTED AN OFFER TO FURNISH THE MATERIALS AND PERFORM THE WORK REQUIRED FOR THE SUM OF $5,800 AND, THAT BEING THE LOWEST BID RECEIVED, THAT CONCERN WAS AWARDED CONTRACT NO. DA-15-014-AII-4613 ON DECEMBER 28, 1955.

IT IS REPORTED THAT DURING THE AFTERNOON OF DECEMBER 20, 1955, THE DAY OF THE OPENING, MR. HOFFMAN OF THE CHAIN LINK FENCE CORPORATION CONTACTED THE CENTRAL PURCHASING OFFICE BY TELEPHONE AND REQUESTED A RECAPITULATION OF THE BIDS; THAT THE INFORMATION REQUESTED WAS FURNISHED AND NO EXCEPTION TAKEN. THE CONTRACTING OFFICER REPORTS FURTHER THAT ON JANUARY 9, 1956, A LETTER DATED JANUARY 6 WAS RECEIVED FROM THE CONTRACTOR GIVING WRITTEN NOTICE OF AN ALLEGED MISTAKE IN BID, IT BEING STATED BY MR. HOFFMANN THAT THE CLEARING OF THE CEMETERY FENCE LINES AND THE REMOVAL AND DISPOSAL OF THE OLD FENCE HAD BEEN OMITTED FROM THE CONTRACTOR'S ESTIMATE OF COSTS. BY A FURTHER LETTER DATED MAY 4, 1956, THE CONTRACTOR REPORTED THAT ITS ACTUAL EXPENDITURES IN THIS CASE AMOUNTED TO $6,930.15, EXCLUSIVE OF OVERHEAD, PROFIT, ETC., EVIDENCE BEING FURNISHED IN SUPPORT OF THIS STATEMENT. ON THE BASIS OF THE SHOWING MADE THE CONTRACTOR REQUESTED REIMBURSEMENT OF THE AMOUNT OF ITS EXPENDITURES.

IN THE CONTRACTING OFFICER'S FINDINGS AND RECOMMENDATION DATED FEBRUARY 24, 1956, IT IS STATED THAT PRIOR TO SOLICITING BIDS THE ENGINEER, THE ARMORED CENTER, ESTIMATED THE COST OF THE WORK TO BE $12,643, AND THAT THREE BIDS WERE RECEIVED IN THE AMOUNTS OF $9,652, $8,671, AND $5,800. THE CONTRACTING OFFICER EXPRESSED THE VIEW THAT AN ERROR WAS MADE AS CLAIMED BY THE CONTRACTOR, DUE TO CARELESSNESS IN THE PREPARATION OF THE BID, BUT THAT THE ADDITIONAL AMOUNT CLAIMED WAS CONSIDERED TO BE EXCESSIVE, IT BEING THE OPINION OF THE ARMORED CENTER ENGINEER THAT TWO LABORERS COULD ACCOMPLISH THE WORK OF CLEARING AND DISPOSAL IN TWENTY WORKING DAYS, WHICH AT THE HOURLY RATE OF $2 WOULD AMOUNT TO $640. IT WAS THE RECOMMENDATION OF THE CONTRACTING OFFICER THAT THE CONTRACT BE MODIFIED BY INCREASING THE TOTAL AMOUNT BY $640, OR TO THE SUM OF $6,440. THAT VIEW WAS CONCURRED IN BY HEADQUARTERS, SECOND ARMY.

TAKING INTO CONSIDERATION ALL OF THE FACTS AND CIRCUMSTANCES IN THIS CASE, IT SEEMS APPARENT THAT THE CONTRACTOR MADE AN ERROR IN SUBMITTING ITS BID. IN VIEW OF THE RANGE BETWEEN THE CONTRACTOR'S BID OF $5,800 AND THE TWO OTHER BIDS OF $8,671 AND $9,652, AND KEEPING IN MIND THE ADMINISTRATIVE ESTIMATE OF COST, IT SEEMS THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE PROBABILITY OF ERROR AND THAT THE BID SHOULD NOT HAVE BEEN ACCEPTED WITHOUT REQUESTING THE CONTRACTOR TO VERIFY THE SAME.

SINCE THE ALLEGED ERROR RELATES ONLY TO THE CONTRACTOR'S FAILURE TO INCLUDE AN ESTIMATE FOR THE CLEARING OF THE CEMETERY FENCE LINES AND THE REMOVAL AND DISPOSAL OF THE OLD FENCE--- THE AMOUNT WHICH IT WOULD HAVE ESTIMATED BEING UNKNOWN--- AND SINCE THE ARMORED CENTER ENGINEER IS OF THE OPINION THAT THIS WORK COULD BE ACCOMPLISHED AT A TOTAL COST OF $640, THERE APPEARS TO BE NO LEGAL BASIS FOR PAYMENT TO THE CONTRACTOR OF THE DIFFERENCE BETWEEN ITS BID PRICE OF $5,800 AND ITS TOTAL CLAIMED OUTLAY OF $6,930.15.

IT IS REPORTED THAT THE WORK WAS COMPLETED ON MARCH 19, 1956, AND THAT PAYMENT OF THE FULL CONTRACT PRICE ($5,800) WAS MADE TO THE CONTRACTOR ON VOUCHER NO. 405716 IN THE APRIL 1956 ACCOUNTS OF LIEUTENANT COLONEL P. W. HERBST, F.C. THE PAPERS TRANSMITTED WITH THE LETTER OF JULY 20, 1956, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S FINDINGS AND RECOMMENDATION, ARE RETURNED HEREWITH, AND PAYMENT TO THE CONTRACTOR OF THE ADDITIONAL SUM OF $640 IS AUTHORIZED, IF OTHERWISE CORRECT. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER COVERING PAYMENT.