B-129657, NOV. 9, 1956

B-129657: Nov 9, 1956

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25. BIDS WERE INVITED FOR THE FURNISHING OF "ALL PLANT. THIS PLAN IS REFERRED TO IN PARAGRAPH SC-2. IT IS PROVIDED THAT "REPAINTING SHALL CONSIST OF TWO FINISH COATS.'. WHICH APPEARS TO HAVE BEEN ATTACHED TO AND MADE A PART OF THE GOVERNMENT'S INVITATION FOR BIDS. THE RECORD SHOWS THAT BIDS WERE RECEIVED IN THE RESPECTIVE AMOUNTS OF $940. THE GOVERNMENT'S ESTIMATE ON THIS WORK WAS $4. THE LOW BIDDER WAS ADVISED THAT HIS BID SEEDED UNUSUALLY LOW AND HE WAS PERMITTED TO WITHDRAW THE BID WHEN IT WAS ESTABLISHED THAT THE BID PRICE WAS BASED UPON THE APPLICATION OF ONLY ONE COAT OF PAINT AS INDICATED ON PLAN NO. THE AWARD WAS THEN MADE TO MR.

B-129657, NOV. 9, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 25, 1956, RELATIVE TO AN APPLICATION BY MR. MERVILLE E. THOMPSON, LAKE CHARLES, LOUISIANA, FOR CANCELLATION OF HIS CONTRACT NO. DA 16-027 AIV-841, DATED JUNE 30, 1956, AWARDED PURSUANT TO INVITATION FOR BIDS NO. AIV 16-027-56-90, ISSUED ON MAY 14, 1956, BY THE PURCHASING AND CONTRACTING OFFICE, FORT POLK, LOUISIANA.

BIDS WERE INVITED FOR THE FURNISHING OF "ALL PLANT, LABOR AND MATERIALS FOR REPAINTING INTERIOR, OFFICERS' MESS, BUILDING T-3.' THE LEGEND ON THE PLAN FOR THIS WORK, PLAN NO. P.E. 1109, PROVIDED FOR THE APPLICATION OF ONLY ONE COAT OF PAINT OR ENAMEL WHERE INDICATED. THIS PLAN IS REFERRED TO IN PARAGRAPH SC-2, SPECIAL CONDITIONS, PART III OF THE ADVERTISED SPECIFICATIONS, WHICH STATES THAT "THE WORK SHALL CONFORM TO THE FOLLOWING DRAWINGS, ALL OF WHICH FORM A PART OF THESE SPECIFICATIONS.' HOWEVER, IN PARAGRAPH TP 1-08B OF THE SPECIFICATIONS, PART IV, TECHNICAL PROVISIONS, IT IS PROVIDED THAT "REPAINTING SHALL CONSIST OF TWO FINISH COATS.' THIS CONNECTION, STANDARD FORM 23A, GENERAL PROVISIONS (CONSTRUCTION CONTRACTS), WHICH APPEARS TO HAVE BEEN ATTACHED TO AND MADE A PART OF THE GOVERNMENT'S INVITATION FOR BIDS, CONTAINS IN ARTICLE 2 THE STATEMENT THAT "IN CASE OF DIFFERENCE BETWEEN DRAWINGS AND SPECIFICATIONS, THE SPECIFICATIONS SHALL GOVERN.'

THE RECORD SHOWS THAT BIDS WERE RECEIVED IN THE RESPECTIVE AMOUNTS OF $940, $1,911.77, $2,347, AND $3,500 FROM MR. K. B. CRAFT, LEESVILLE, LOUISIANA, MR. THOMPSON, JOE B. DEES, JR., DERIDDER, LOUISIANA, AND THE ABRAHAM CONSTRUCTION COMPANY, DERIDDER, LOUISIANA. THE GOVERNMENT'S ESTIMATE ON THIS WORK WAS $4,314.

THE LOW BIDDER WAS ADVISED THAT HIS BID SEEDED UNUSUALLY LOW AND HE WAS PERMITTED TO WITHDRAW THE BID WHEN IT WAS ESTABLISHED THAT THE BID PRICE WAS BASED UPON THE APPLICATION OF ONLY ONE COAT OF PAINT AS INDICATED ON PLAN NO. P.E. 1109. THE AWARD WAS THEN MADE TO MR. THOMPSON AND IT IS REPORTED THAT HE ALLEGED A SIMILAR MISTAKE IN BID AT A PRE-COMMENCEMENT CONFERENCE WITH REPRESENTATIVES OF THE POST ENGINEER AND THE CONTRACTING OFFICER. IN A LETTER DATED JULY 18, 1956, MR. THOMPSON FURNISHED A BREAKDOWN OF HIS ESTIMATE OF $1,911.77 FOR "A ONE COAT JOB," WHICH INCLUDES $818.25 FOR LABOR AND $520 FOR MATERIALS. THE CONTRACTING OFFICER RECOMMENDED THAT MR. THOMPSON BE RELIEVED FROM LIABILITY TO PERFORM THE CONTRACT AND PROPOSED TO MAKE AN AWARD OF A CONTRACT TO THE THIRD LOWEST BIDDER, JOE B. DEES, JR., WHO ADVISED THAT HIS BID WAS BASED UPON THE REQUIREMENTS OF THE SPECIFICATIONS, OR TO REJECT ALL BIDS AND ACCOMPLISH THE WORK WITH GOVERNMENT PERSONNEL.

THE GOVERNMENT'S ESTIMATE OF $4,314 FOR PERFORMING THE PROPOSED WORK INCLUDED $960 FOR PAINT AND $1,960 FOR LABOR, OR MORE THAN TWICEAS MUCH AS WAS ESTIMATED BY MR. THOMPSON FOR THOSE ITEMS. AT THE TIME OF AWARDING THE CONTRACT TO MR. THOMPSON, THE CONTRACTING OFFICER WAS ALSO AWARE OF THE INCONSISTENCY BETWEEN THE DRAWING AND THE SPECIFICATIONS AND OF THE FACT THAT ONE OF THE FOUR BIDDERS HAD ASSUMED THAT ONLY ONE COAT OF PAINT, AS SPECIFIED IN THE DRAWING, WOULD BE REQUIRED.

IN THE CIRCUMSTANCES, IT SEEMS REASONABLE TO CONCLUDE THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF PROBABLE ERROR IN THE BID SUBMITTED BY MR. THOMPSON AND THAT THE ACCEPTANCE OF THE BID, WITHOUT VERIFICATION AS TO WHETHER THE PRICE OF $1,911.77 WAS INTENDED TO COVER THE APPLICATION OF TWO COATS OF PAINT AS REQUIRED IN PARAGRAPH TP 1-08B OF THE ADVERTISED SPECIFICATIONS, CANNOT PROPERLY BE CONSIDERED AS HAVING RESULTED IN A VALID AND BINDING CONTRACT.

ACCORDINGLY, YOUR QUESTION AS TO WHETHER MR. THOMPSON'S CONTRACT MAY BE RESCINDED IS ANSWERED IN THE AFFIRMATIVE. THE FILE FORWARDED WITH YOUR LETTER IS RETURNED HEREWITH.