B-129208, SEP. 24, 1956

B-129208: Sep 24, 1956

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NATIONAL CAPITAL PARKS: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11. SECTION 21-1 AT PAGE 65 OF THE SPECIFICATIONS PROVIDED THAT "THE RIGHT IS RESERVED TO ACCEPT ALTERNATIVE BIDS AS THE INTEREST OF THE UNITED STATES MAY DIRECT.'. IT IS STATED IN YOUR LETTER OF SEPTEMBER 11. THAT ALTERNATES "A" AND "B" WERE INCLUDED IN THE INVITATION BECAUSE OF THE POSSIBILITY THAT THE GOVERNMENT MIGHT BE ABLE TO OBTAIN. IT IS POINTED OUT. WOULD BE AVAILABLE WAS PURELY SPECULATIVE. IT IS REPORTED THAT. EVEN ASSUMING THAT THE REQUISITE AMOUNT OF SUCH MATERIAL WERE AVAILABLE. IT IS ALSO INDICATED THAT. WHILE THE NAMES OF THE PRESTRESSING CONSULTANT AND PRESTRESSING SYSTEM WERE OMITTED FROM THE BID OF THE GENERAL EXCAVATING COMPANY.

B-129208, SEP. 24, 1956

TO MR. HARRY T. THOMPSON, CONTRACTING OFFICER, NATIONAL CAPITAL PARKS:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 11, 1956, REQUESTING OUR ADVICE AS TO WHETHER AN AWARD OF A CONTRACT MAY BE MADE TO THE LOW BIDDER UNDER THE CIRCUMSTANCES DESCRIBED BELOW.

INVITATION FOR BIDS NO. 14-10-028-1037, DATED JULY 27, 1956, COVERED CERTAIN CONSTRUCTION WORK TO BE PERFORMED IN ROCK CREEK PARK, WASHINGTON, D.C. THE INVITATION CALLED FOR LUMP SUM OR UNIT PRICES FOR EACH OF 28 ITEMS OF WORK. IN ADDITION THE INVITATION PROVIDED FOR THE INCLUSION OF ALTERNATE UNIT PRICES FOR "A" EARTH FILL AND "B" RIPRAP IF MATERIAL THEREFOR COULD BE PROVIDED BY THE GOVERNMENT. PARAGRAPH 4-4 AT PAGE 15 OF THE SPECIFICATIONS STATED THAT "AN ALTERNATIVE BID SHALL BE SUBMITTED AS CALLED FOR IN SECTION 21 OF THESE SPECIFICATIONS AND ON THE STANDARD GOVERNMENT FORM OF BID.' SECTION 21-1 AT PAGE 65 OF THE SPECIFICATIONS PROVIDED THAT "THE RIGHT IS RESERVED TO ACCEPT ALTERNATIVE BIDS AS THE INTEREST OF THE UNITED STATES MAY DIRECT.'

SECTION 4-3 (A) 3 OF THE SPECIFICATIONS REQUIRED THE EMPLOYMENT BY THE CONTRACTOR OF AN APPROVED FIRM OR INDIVIDUAL AS FIELD CONSULTANT IN CONNECTION WITH PRESTRESSING OPERATIONS, AND SECTION 7-1, AT PAGE 37, STATES THAT:

"* * * THE NAME OF THE PRESTRESSING CONSULTANT AND THE NAME OF THE SYSTEM PROPOSED TO BE USED FOR JACKING AND ANCHORAGE SHALL BE STATED IN THE PROPOSAL, AS PROVIDED, AT THE END OF THE SCHEDULE OF PRICES.'

PAGE 4 OF THE BID PRICE SCHEDULE INCLUDED SPACES FOR THE INSERTION OF ALTERNATIVE BIDS "A" AND ,B" AND THE NAME OF THE PROPOSED PRESTRESSING CONSULTANT AND THAT OF THE PROPOSED PRESTRESSING SYSTEM.

THE LOW BIDDER, THE GENERAL EXCAVATING COMPANY, FAILED TO SUBMIT FIGURES FOR EITHER ALTERNATE BID AND, IN ADDITION, FAILED TO INSERT IN THE BID THE NAME OF THE PRESTRESSING CONSULTANT AND OF THE PRESTRESSING SYSTEM TO BE USED. TRIANGLE CONSTRUCTION COMPANY, INC., THE SECOND LOW BIDDER, CONTENDS THAT THE BID OF THE GENERAL EXCAVATING COMPANY SHOULD NOT BE CONSIDERED BECAUSE OF THE OMISSIONS IN GENERAL'S BID.

IT IS STATED IN YOUR LETTER OF SEPTEMBER 11, 1956, THAT ALTERNATES "A" AND "B" WERE INCLUDED IN THE INVITATION BECAUSE OF THE POSSIBILITY THAT THE GOVERNMENT MIGHT BE ABLE TO OBTAIN, WITHOUT COST TO IT, SUITABLE FILL OR RIPRAP MATERIAL TO BE USED IN CONNECTION WITH THE WORK CONTEMPLATED UNDER THE INVITATION. IT IS POINTED OUT, HOWEVER, THAT WHETHER A SUFFICIENT AMOUNT OF THIS MATERIAL, OR INDEED ANY OF SUCH MATERIAL, WOULD BE AVAILABLE WAS PURELY SPECULATIVE. FURTHER, IT IS REPORTED THAT, EVEN ASSUMING THAT THE REQUISITE AMOUNT OF SUCH MATERIAL WERE AVAILABLE, THE COST TO THE GOVERNMENT, UNDER THE LOW BID, WOULD STILL BE MORE THAN $33,000 LESS THAN THE COST UNDER THE BID OF THE TRIANGLE CONSTRUCTION COMPANY, INC., EVEN AT ITS ALTERNATE PRICES ON THE BASIS OF GOVERNMENT FURNISHED MATERIAL.

IT IS ALSO INDICATED THAT, WHILE THE NAMES OF THE PRESTRESSING CONSULTANT AND PRESTRESSING SYSTEM WERE OMITTED FROM THE BID OF THE GENERAL EXCAVATING COMPANY, THAT INFORMATION WAS VERBALLY SUPPLIED BY ITS REPRESENTATIVE BEFORE ITS BID WAS OPENED, AND THE VERBAL STATEMENT WAS CONFIRMED IN WRITING BY SUBSEQUENT LETTER.

AS TO THE FIRST OBJECTION, FAILURE OF THE LOW BIDDER TO COMPLETE ALTERNATES "A" AND "B," SINCE THE ACCEPTANCE OF THE LOW BID WOULD RESULT IN THE LOWEST PRICE TO THE GOVERNMENT, EVEN IF THE MATERIAL COULD BE FURNISHED BY THE GOVERNMENT, NO REASON IS SEEN FOR REJECTING THE LOW BID, THERE BEING NO BASIS ON WHICH IT MAY BE CONTENDED THAT THE ACCEPTANCE OF THE LOW BID WITH SUCH OMISSIONS WOULD DISCRIMINATE AGAINST THE OTHER BIDDERS. FURTHER, THE RIGHT RESERVED IN THE GOVERNMENT TO ACCEPT ALTERNATE BIDS CLEARLY IMPLIES THE COLLATERAL RESERVATION TO REJECT THEM WHEN IT IS IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO. CLEARLY, THE REJECTION OF THE ALTERNATE BIDS WOULD NOT PRECLUDE THE ACCEPTANCE OF THE MAIN BID. SIMILARLY, WE SEE NO REASON WHY THE MAIN BID MAY NOT BE ACCEPTED EVEN THOUGH THE ALTERNATES HAVE BEEN OMITTED.

IN REGARD TO THE SECOND OBJECTION, FAILURE OF THE LOW BIDDER TO INCLUDE IN THE BID THE NAME OF THE PRESTRESSING CONSULTANT AND THE PRESTRESSING SYSTEM, IT APPEARS THAT THESE STATEMENTS WERE REQUIRED AS A MATTER OF INFORMATION FOR THE BENEFIT AND CONVENIENCE OF THE GOVERNMENT RATHER THAN AS CONDITIONS OF THE BID, AND THE FURNISHING OF THE NAMES DID NOT AFFECT THE OBLIGATION OF THE BIDDER, IN THE EVENT OF AWARD OF A CONTRACT, TO EMPLOY A CONSULTANT AND SYSTEM ACCEPTABLE TO THE GOVERNMENT. WHILE THE INVITATION MIGHT HAVE BEEN MORE CLEARLY WORDED TO THAT EFFECT, WE ARE INCLINED TO THE VIEW THAT ACCEPTANCE OF THE BID WOULD NOT BIND THE GOVERNMENT NOT TO REQUIRE A CHANGE OF CONSULTANT OR SYSTEM IF THOSE NAMED SHOULD THEREAFTER BE DETERMINED TO BE UNSATISFACTORY. IN ANY EVENT, THE REQUESTED INFORMATION WAS IN FACT FURNISHED PRIOR TO BID OPENING AND, WHILE IT MIGHT HAVE BEEN REQUIRED TO BE REDUCED TO WRITING, THE FAILURE TO DO SO MAY BE REGARDED AS AN INFORMALITY WHICH THE CONTRACTING OFFICER COULD PROPERLY WAIVE.

IT IS NOTED THAT THE PROTESTING BIDDER, IN A LETTER DATED AUGUST 25, 1956, CONTENDS THAT THE COST OF MATERIAL ALONE REQUIRED FOR BID ITEM NO. 7 WOULD EXCEED THE FIGURE SUBMITTED BY THE LOW BIDDER. WE ARE ADVISED THAT WHILE THAT STATEMENT IS TRUE AN ANALYSIS OF THE BIDS INDICATES THAT SOME OF THE COST, INCLUDED BY THE PROTESTING BIDDER UNDER ITEM NO. 7, WAS INCLUDED BY THE LOW BIDDER UNDER ITEM NO. 9 AS THE RESULT OF DIFFERENT METHODS OF ALLOCATION OF COSTS USED BY THE RESPECTIVE BIDDERS. SINCE THE AWARD IS TO BE MADE ON THE BASIS OF THE TOTAL WORK, THE DIFFERENCE IN ALLOCATION OF COSTS TO ITEMS NOS. 7 AND 9 IS NOT DEEMED TO BE MATERIAL.

ACCORDINGLY, SINCE THE DEFICIENCIES IN THE LOW BID NEITHER GO TO THE SUBSTANCE OF THE BID NOR WORK AN INJUSTICE TO THE OTHER BIDDERS, WE PERCEIVE NO REASON WHY THE AWARD MAY NOT BE MADE TO THE LOW BIDDER. CF. 35 COMP. GEN. 98, 99.