B-129480, JANUARY 28, 1957, 36 COMP. GEN. 535

B-129480: Jan 28, 1957

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AFTER SUBMISSION OF A BID WHICH WAS RESPONSIVE IN ALL MATERIAL RESPECTS EXCEPT THAT THREE SETS OF SPARE PARTS WERE OFFERED INSTEAD OF ONE SET. OFFERED TO FURNISH THE EQUIPMENT WITHOUT THE EXCESS PARTS AT A REDUCTION IN PRICE IS ENTITLED TO AWARD. IF IT IS DETERMINED THAT THE REDUCTION IS REASONABLE. 1957: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28. IT WAS PROVIDED THAT THE SUCCESSFUL BIDDER WOULD BE REQUIRED TO EXECUTE BUREAU OF RECLAMATION CONTRACT FORM NO. 7-1442. ARE NOT RESTRICTED TO. DEFAULTS OF SUBCONTRACTORS DUE TO ANY SUCH CAUSES UNLESS THE CONTRACTING OFFICER SHALL DETERMINE THAT THE SUPPLIES OR SERVICES TO BE FURNISHED BY THE SUBCONTRACTOR WERE OBTAINABLE FROM OTHER SOURCES.

B-129480, JANUARY 28, 1957, 36 COMP. GEN. 535

BIDS - ACCEPTANCE OR REJECTION - BID ACCOMPANIED BY BIDDER'S FORM CONTAINING PROVISIONS CONTRARY TO STANDARD FORM - REDUCTION OF LOW BID A LOW BID ACCOMPANIED BY THE BIDDER'S OWN QUOTATION FORM CONTAINING PROVISIONS WHICH, CONTRARY TO THE STANDARD GOVERNMENT CONTRACT FORM, LIMIT THE BIDDER'S LIABILITY IN THE EVENT OF DELAY OR FAILURE TO PERFORM, REQUIRE THE BIDDER'S CONSENT FOR CANCELLATION, AND RESTRICT THE RIGHT OF THE GOVERNMENT TO PROTECT ITSELF, SHOULD BE REJECTED AS NONRESPONSIVE REGARDLESS OF THE BIDDER'S INTENT TO COMPLY WITH THE ADVERTISED CONDITIONS AND SPECIFICATIONS. A LOW BIDDER WHO, AFTER SUBMISSION OF A BID WHICH WAS RESPONSIVE IN ALL MATERIAL RESPECTS EXCEPT THAT THREE SETS OF SPARE PARTS WERE OFFERED INSTEAD OF ONE SET, OFFERED TO FURNISH THE EQUIPMENT WITHOUT THE EXCESS PARTS AT A REDUCTION IN PRICE IS ENTITLED TO AWARD, IF IT IS DETERMINED THAT THE REDUCTION IS REASONABLE.

TO THE SECRETARY OF THE INTERIOR, JANUARY 28, 1957:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER THE BID SUBMITTED BY LAYNE AND BOWLER, INC., OF MEMPHIS, TENNESSEE, ON INVITATION NO. DS 4723 ISSUED BY THE BUREAU OF RECLAMATION MAY BE DISREGARDED AND AWARD OF CONTRACT MADE TO THE SECOND-LOW BIDDER.

SCHEDULE NO. 1 OF THE INVITATION AS SUPPLEMENTED REQUESTED BIDS TO BE OPENED AUGUST 28, 1956, FOR FURNISHING PUMPING UNITS FOR BREWSTER FLAT PUMPING PLANTS, FOSTER CREEK DIVISION, CHIEF JOSEPH DAM PROJECT, WASHINGTON. IT WAS PROVIDED THAT THE SUCCESSFUL BIDDER WOULD BE REQUIRED TO EXECUTE BUREAU OF RECLAMATION CONTRACT FORM NO. 7-1442, IN ACCORDANCE WITH THE BID AS ACCEPTED, WHICH FORM INCLUDES STANDARD FORM NO. 32. PARAGRAPH A-9 OF THE SPECIAL CONDITIONS DELETED PARAGRAPHS (B) AND (D) OF THE CLAUSE 11 ( DEFAULT) OF STANDARD FORM NO. 32, AND SUBSTITUTED NEW LANGUAGE THEREFOR. AS CHANGED, CLAUSE 11 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

(A) THE GOVERNMENT MAY, SUBJECT TO THE PROVISIONS OF PARAGRAPH (B) BELOW, BY WRITTEN NOTICE OF DEFAULT TO THE CONTRACTOR TERMINATE THE WHOLE OR ANY PART OF THIS CONTRACT IN ANY ONE OF THE FOLLOWING CIRCUMSTANCES:

(I) IF THE CONTRACTOR FAILS TO MAKE DELIVERY OF THE SUPPLIES OR TO PERFORM THE SERVICES WITHIN THE TIME SPECIFIED HEREIN OR ANY EXTENSION THEREOF; OR

(II) IF THE CONTRACTOR FAILS TO PERFORM ANY OF THE OTHER PROVISIONS OF THIS CONTRACT, OR SO FAILS TO MAKE PROGRESS AS TO ENDANGER PERFORMANCE OF THIS CONTRACT IN ACCORDANCE WITH ITS TERMS, AND IN EITHER OF THESE TWO CIRCUMSTANCES DOES NOT CURE SUCH FAILURE WITHIN A PERIOD OF 10 DAYS (OR SUCH LONGER PERIOD AS THE CONTRACTING OFFICER MAY AUTHORIZE IN WRITING) AFTER RECEIPT OF NOTICE FROM THE CONTRACTING OFFICER SPECIFYING SUCH FAILURE.

(B) THE CONTRACTOR SHALL NOT BE LIABLE FOR ANY EXCESS COST IF ANY FAILURE TO PERFORM THE CONTRACT ARISES OUT OF CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR: PROVIDED, THAT THE CONTRACTOR SHALL NOTIFY THE CONTRACTING OFFICER IN WRITING OF THE CAUSE OF ANY SUCH DELAY, WITHIN 30 DAYS FROM THE BEGINNING THEREOF, OR WITHIN SUCH FURTHER PERIOD AS THE CONTRACTING OFFICER SHALL, PRIOR TO THE DATE OF FINAL SETTLEMENT OF THE CONTRACT, GRANT FOR THE GIVING OF SUCH NOTICE. SUCH CAUSES INCLUDE, BUT ARE NOT RESTRICTED TO, ACTS OF GOD OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, UNUSUALLY SEVERE WEATHER, AND DEFAULTS OF SUBCONTRACTORS DUE TO ANY SUCH CAUSES UNLESS THE CONTRACTING OFFICER SHALL DETERMINE THAT THE SUPPLIES OR SERVICES TO BE FURNISHED BY THE SUBCONTRACTOR WERE OBTAINABLE FROM OTHER SOURCES. AS SOON AS PRACTICABLE AFTER RECEIPT OF THE CONTRACTOR'S NOTICE OF DELAY, THE CONTRACTING OFFICER SHALL ASCERTAIN THE FACTS AND EXTENT OF THE DELAY, AND EXTEND THE TIME FOR MAKING DELIVERY WHEN IN HIS JUDGMENT THE FINDINGS OF FACT JUSTIFY SUCH AN EXTENSION, AND HIS FINDINGS OF FACT THEREON SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES HERETO, SUBJECT ONLY TO APPEAL, WITHIN 30 DAYS, BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION ON SUCH APPEAL AS TO THE FACTS OF DELAY AND THE EXTENSION OF TIME FOR MAKING DELIVERY SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES HERETO.

(C) IN THE EVENT THE GOVERNMENT TERMINATES THIS CONTRACT IN WHOLE OR IN PART AS PROVIDED IN PARAGRAPH (A) OF THIS CLAUSE, THE GOVERNMENT MAY PROCURE, UPON SUCH TERMS AND IN SUCH MANNER AS THE CONTRACTING OFFICER MAY DEEM APPROPRIATE, SUPPLIES OR SERVICES SIMILAR TO THOSE SO TERMINATED, AND THE CONTRACTOR SHALL BE LIABLE TO THE GOVERNMENT FOR ANY EXCESS COSTS FOR SUCH SIMILAR SUPPLIES OR SERVICES, PROVIDED, THAT THE CONTRACTOR SHALL CONTINUE THE PERFORMANCE OF THIS CONTRACT TO THE EXTENT NOT TERMINATED UNDER THE PROVISIONS OF THIS CLAUSE.

PARAGRAPH B-10 OF THE SPECIAL CONDITIONS, ENTITLED " DELAYS--- LIQUIDATED DAMAGES," SUPPLEMENTED CLAUSE 11 BY PROVIDING FOR THE ASSESSMENT OF LIQUIDATED DAMAGES AT THE RATE OF $25 FOR EACH CALENDAR DAY OF DELAY IN SHIPMENT BEYOND THE TIME SPECIFIED FOR SHIPMENT, SUBJECT TO THE PROVISO THAT AN ELECTION BY THE GOVERNMENT TO TERMINATE THE CONTRACT AS PROVIDED IN CLAUSE 11 SHOULD NOT BE CONSTRUED TO PROHIBIT THE GOVERNMENT FROM ASSESSING LIQUIDATED DAMAGES ACCRUING UNTIL SUCH TIME AS THE GOVERNMENT MAY REASONABLY PROCURE THE UNITS FROM OTHER SOURCES. THE CLAUSE WAS ALSO SUBJECT TO THE PROVISO THAT THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES WHEN THE DELAY IN SHIPMENT IS DUE TO EXCUSABLE CAUSES AS DEFINED IN PARAGRAPH (B) OF THE CLAUSE AND/OR DELAYS OF A SUBCONTRACTOR DUE TO SUCH CAUSES, UNLESS THE CONTRACTING OFFICER SHALL DETERMINE THAT THE UNITS TO BE FURNISHED UNDER THE SUBCONTRACT ARE PROCURABLE IN THE OPEN MARKET, IF THE CONTRACTOR SHALL NOTIFY THE CONTRACTING OFFICER IN WRITING OF THE CAUSE OF ANY SUCH DELAY WITHIN 30 DAYS FROM THE BEGINNING THEREOF, OR WITHIN SUCH FURTHER PERIOD AS THE CONTRACTING OFFICER SHALL, PRIOR TO THE DATE OF FINAL SETTLEMENT OF THE CONTRACT, GRANT FOR THE GIVING OF SUCH NOTICE. IT IS PROVIDED FURTHER THAT THE CONTRACTING OFFICER SHALL THEN ASCERTAIN THE FACTS AND THE EXTENT OF THE DELAY AND EXTEND THE TIME FOR MAKING SHIPMENT WHEN IN HIS JUDGMENT THE FINDINGS OF FACT JUSTIFY SUCH EXTENSION AND HIS FINDINGS OF FACT THEREON SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES, SUBJECT ONLY TO APPEAL, WITHIN 30 DAYS, BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE WHOSE DECISION ON SUCH APPEAL AS TO THE FACTS OF DELAY AND THE EXTENSION OF TIME FOR MAKING SHIPMENT SHALL BE FINAL AND CONCLUSIVE.

BIDDERS WERE ADVISED IN PARAGRAPH 8 OF THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS THAT THE CONTRACT WOULD BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. THEY WERE ADVISED ALSO THAT THE GOVERNMENT RESERVED THE RIGHT TO REJECT ANY OR ALL BIDS AND TO WAIVE INFORMALITIES AND MINOR IRREGULARITIES IN THE BIDS RECEIVED.

THE ABSTRACT OF BIDS SHOWS THAT 5 BIDS WERE RECEIVED AND THAT LAYNE AND BOWLER, INC., SUBMITTED THE LOWEST BID AS TO PRICE. THAT BID, HOWEVER, WAS ACCOMPANIED BY THE BIDDER'S QUOTATION NO. 8034 ON ITS OWN LETTERHEAD, WHICH QUOTATION APPARENTLY WAS SIGNED BY THE SAME INDIVIDUAL WHO SIGNED THE BID PROPER ON STANDARD FORM NO. 33. THIS QUOTATION CONTAINS, AMONG OTHER PERTINENT DATA, PRINTED STATEMENTS AS FOLLOWS:

SHIPMENT DATE IS CONDITIONAL UPON DELAYS, ACCIDENTS, OR NON PERFORMANCE OCCASIONED BY STRIKES, FIRES OR OTHER CAUSES BEYOND OUR CONTROL.

THIS QUOTATION IS FOR PROMPT ACCEPTANCE, AND IS VALID ONLY FOR THIRTY DAYS FROM THIS DATE.

ORDERS ENTERED UPON OUR BOOKS CANNOT BE CANCELLED WITHOUT OUR CONSENT, AND UPON TERMS WHICH WILL INDEMNIFY US AGAINST ACTUAL LOSS.

IN RESPONSE TO THE BIDDER'S LETTER OF SEPTEMBER 14, 1956, REQUESTING INFORMATION AS TO THE AWARD OF A CONTRACT PURSUANT TO THE INVITATION, THE CONTRACTING OFFICER ADVISED THAT ITS BID WAS NOT FOR ACCEPTANCE BECAUSE OF THE CONDITIONS IN THE QUOTATION CONCERNING DELAYS IN SHIPMENT AND THE REQUIREMENT THAT THE BIDDER MUST GIVE ITS CONSENT FOR CANCELLATION OF ANY CONTRACT AWARDED TO IT AND THAT THE CANCELLATION MUST BE ON TERMS WHICH WILL INDEMNIFY THE BIDDER AGAINST LOSS. THE BIDDER THEN PROTESTED THE PROPOSED REJECTION OF ITS BID TO THE CONTRACTING OFFICER AND TO OUR OFFICE ON THE BASIS THAT ITS BID WAS NOT ONLY LOW AS TO PRICE BUT THAT IT WAS THE BIDDER'S INTENTION THAT ITS BID WOULD COMPLY STRICTLY WITH THE ADVERTISED SPECIFICATIONS AND CONDITIONS. IT WAS STATED IN LETTER OF JANUARY 4, 1957, TO THIS OFFICE, THAT THE BIDDER DOES NOT REGARD CONTRACTS WITH THE BUREAU OF RECLAMATION IN THE SAME LIGHT AS COMMERCIAL ORDERS ENTERED UPON ITS BOOKS. IT WAS ALSO CLAIMED THAT THE SAME QUOTATION SHEETS WERE USED ON NUMEROUS OTHER BIDS TO THE GOVERNMENT AND THAT NO QUESTION WAS RAISED CONCERNING THEIR USE, REFERENCE BEING MADE TO INVITATION NO. 100-S-150 DATED JULY 25, 1952, AND CONTRACT NO. 14-06-100-25 WHICH WAS AWARDED PURSUANT TO THAT INVITATION.

IN LETTER DATED JANUARY 11, 1957, THE HONORABLE W. F. NORRELL, HOUSE OF REPRESENTATIVES, ADVISED OUR OFFICE THAT THE BIDDER MAINTAINS THAT THERE IS NO DIFFERENCE IN MEANING OR INTENT BETWEEN THE CLAUSES PRINTED ON ITS QUOTATION FORM AND THE PROVISION SET OUT ON FORM 23 (APPARENTLY SHOULD BE STANDARD FORM NO. 33), AND THAT THE BIDDER HAS ACCEPTED THE SPECIFICATIONS AND FORM NO. 32 AS CONTROLLING IN THE MATTER. HE STATES FURTHER THAT IT IS HIS UNDERSTANDING THAT LAYNE AND BOWLER, INC., REQUESTED THAT ALL PRINTED MATTER ON THEIR QUOTATION BE CONSIDERED AS NOTHING MORE THAN AN INFORMALITY IN BIDDING AND THAT IT BE WAIVED AS SUCH. A LETTER WITH ENCLOSURE TO THE SAME EFFECT WAS RECEIVED FROM HONORABLE CLIFFORD DAVIS, HOUSE OF REPRESENTATIVES.

THE PROVISION RELATIVE TO EXCUSABLE CAUSES OF DELAY NOW A PART OF STANDARD FORM NO. 32 AS CHANGED IN THIS CASE PROVIDES THAT A CONTRACTOR SHALL NOT BE HELD LIABLE FOR ANY EXCESS COST OR LIQUIDATED DAMAGES IF THE FAILURE TO PERFORM THE CONTRACT ARISES OUT OF CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, SUCH AS CERTAIN SPECIFIC CAUSES SET OUT THEREIN AND OTHER CAUSES SIMILAR THERETO. THE CAUSES SPECIFIED NOT ONLY MUST BE BEYOND THE CONTROL OF THE CONTRACTOR BUT MUST BE WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, SUCH AS CERTAIN SPECIFIC CAUSES SET OUT THEREIN AND OTHER CAUSES SIMILAR THERETO. THE CAUSES SPECIFIED NOT ONLY MUST BE BEYOND THE CONTROL OF THE CONTRACTOR BUT MUST BE WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THESE TWO CONDITIONS MUST CONCUR TO AFFORD A CONTRACTOR IMMUNITY FROM LIABILITY FOR DELAY OR FAILURE TO PERFORM HIS CONTRACT. HOWEVER, UNDER THE CONDITION ATTACHED TO THE BID OF LAYNE AND BOWLER, INC., IT IS NOT NECESSARY THAT THE CAUSE OF DELAY BE WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THUS, ANY SUPERVENING CAUSE RENDERING PERFORMANCE MORE DIFFICULT OR BURDENSOME MIGHT BE INVOKED AS AN EXCUSE FOR DELAY OR REFUSAL TO PERFORM SO LONG AS IT IS BEYOND THE CONTROL OF THE CONTRACTOR IN ITS DURATION, ALTHOUGH IT MIGHT BE DIRECTLY ATTRIBUTABLE TO THE CONTRACTOR'S OWN FAULT OR NEGLIGENCE IN ITS INCEPTION.

THE PROVISION THAT ORDERS ENTERED UPON THE BIDDER'S BOOKS CANNOT BE CANCELED WITHOUT THE BIDDER'S CONSENT AND THAT SUCH CANCELLATION MUST BE UPON TERMS WHICH WILL INDEMNIFY THE BIDDER AGAINST ACTUAL LOSS, IS CLEARLY A MATERIAL DEVIATION FROM THE PROVISIONS OF CLAUSE 11 AS CHANGED AND GOES SUBSTANTIALLY BEYOND THE MEANING AND INTENT OF THE LATTER IN AFFORDING THE BIDDER IMMUNITY FROM LIABILITY IN CASE OF DEFAULT, WITH A CORRESPONDING RESTRICTION OF THE RIGHTS OF THE GOVERNMENT TO HOLD THE BIDDER LIABLE IN THE EVENT OF BREACH OF ITS CONTRACT.

THE TYPEWRITTEN PROVISIONS AND PRINTED CONDITIONS OF QUOTATION NO. 8034 WERE AN INTEGRAL PART OF THE BID AND, IF THE BID WERE ACCEPTED, WOULD TAKE PRECEDENCE OVER THE PROVISIONS PRINTED IN THE FORMAL GOVERNMENT CONTRACT. UNDER WELL ESTABLISHED PRINCIPLES OF LAW SUCH PROVISIONS WOULD CONTROL THE GOVERNMENT'S RIGHTS IN THE MATTER.

IT IS AN ESTABLISHED RULE THAT A CONTRACT AWARDED TO A SUCCESSFUL BIDDER MUST BE THE CONTRACT OFFERED TO ALL BIDDERS. SEE UNITED STATES V. BROOKRIDGE FARM, III F.2D 461-463. WHERE ONE BIDDER RESERVES RIGHTS AND IMMUNITIES FROM RESPONSIBILITY FOR BREACH NOT EXTENDED TO ALL BIDDERS BY THE ADVERTISED CONDITIONS AND SPECIFICATIONS, IT IS CLEAR THAT A CONTRACT AWARDED UPON THE BASIS OF SUCH A BID WOULD NOT BE THE CONTRACT OFFERED TO ALL PROSPECTIVE BIDDERS.

CONTRACTING OFFICIALS OF THE GOVERNMENT ARE AUTHORIZED TO WAIVE INFORMALITIES IN BIDS WHEN IN THE INTEREST OF THE GOVERNMENT AND, AS INDICATED ABOVE, THE INSTRUCTIONS TO BIDDERS IN THIS CASE SO PROVIDE. HOWEVER, THE INFORMALITIES WHICH PROPERLY MAY BE WAIVED ARE THOSE THAT DO NOT GO TO THE SUBSTANCE OF THE BID SO AS TO AFFECT EITHER THE PRICE, QUANTITY, OR QUALITY OF THE MATERIAL OFFERED AND THEREFORE ARE NOT PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. 30 COMP. GEN. 179. THERE IS NO AUTHORITY FOR WAIVING AS AN INFORMALITY OR MINOR IRREGULARITY MATERIAL CONDITIONS IMPOSED BY A BIDDER, AS IN THIS CASE. REGARDLESS OF THE BIDDER'S INTENT, THE EFFECT OF THE CONDITIONS IS TO GIVE THE BIDDER THE RIGHT TO LIMIT LIABILITY IN THE EVENT OF DELAY OR FAILURE TO PERFORM TO SUCH AN EXTENT AS TO RESTRICT THE RIGHT OF THE GOVERNMENT TO PROTECT ITSELF, WHICH WAS NOT AFFORDED TO OTHER BIDDERS.

WITH REFERENCE TO THE STATEMENT OF LAYNE AND BOWLER, INC., THAT THE SAME QUOTATION SHEETS WERE USED WITH NUMEROUS OTHER BIDS, REFERRING SPECIFICALLY TO INVITATION NO. 100-S-150 DATED JULY 25, 1952, THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER AT DENVER REPORTS IN THE MEMORANDUM FORWARDED WITH YOUR LETTER THAT HIS RECORD AS TO THIS PARTICULAR INVITATION CONFIRMS THE BIDDER'S STATEMENT. HE STATES FURTHER, HOWEVER, THAT THE CONTRACT WAS AWARDED BY ANOTHER CONTRACTING OFFICER AND THAT HE DOES NOT KNOW WHETHER THE FACTS IN THE CASE JUSTIFIED THE AWARD IN SPITE OF THE QUALIFICATIONS. IN ANY EVENT, WE AGREE WITH THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER THAT AN IMPROPER AWARD IN ONE OR MORE CASES WOULD NOT JUSTIFY A REPETITION OF THE SAME ERROR. ACCORDINGLY, THE BID OF LAYNE AND BOWLER, INC., CONDITIONED AS IT IS IN THIS CASE, PROPERLY MUST BE REJECTED AS NOT BEING RESPONSIVE TO THE INVITATION FOR BIDS.

THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER REPORTS THAT THE SECOND-LOW BID WAS SUBMITTED BY THE LAYNE AND BOWLER PUMP COMPANY OF LOS ANGELES, CALIFORNIA, AND THAT THIS BID IS RESPONSIVE TO THE INVITATION IN ALL MATERIAL RESPECTS EXCEPT THAT IF OFFERED 3 SETS EACH OF BEARINGS AS SPARES FOR THE PUMPS AND MOTORS INSTEAD OF ONE SET EACH AS REQUIRED BY PARAGRAPH C-19 OF THE SPECIAL REQUIREMENTS OF THE INVITATION. THIS BIDDER WAS INFORMED OF THE EXCESS SETS OF BEARINGS AND IT THEN OFFERED TO FURNISH THE EQUIPMENT WITHOUT THE EXCESS SPARES AT A REDUCTION OF $2,250 IN ITS PRICE. THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER STATES THAT HE REGARDS THIS REDUCTION AS REASONABLE AND APPROPRIATE ALTHOUGH HE DEEMS CONSIDERATION THEREOF IMPROPER FOR COMPARISON PURPOSES IN DETERMINING THE LOWEST BIDDER. HOWEVER, AS THIS BID NOW IS THE LOWEST RESPONSIVE BID RECEIVED EVEN WITHOUT THE REDUCTION WE PERCEIVE NO OBJECTION TO THE ACCEPTANCE OF THAT BID, IF OTHERWISE CORRECT AND PROPER, AND IF IT BE DETERMINED THAT THE REDUCTION IN PRICE IS REASONABLE.

THE MEMORANDUM OF THE ASSISTANT COMMISSIONER AND CHIEF ENGINEER WITH ATTACHMENTS AND THE BID OF THE LAYNE AND BOWLER PUMP COMPANY AND RELATED PAPERS ARE RETURNED HEREWITH.