B-129789, NOV. 23, 1956

B-129789: Nov 23, 1956

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 14. THE RECORD INDICATES THAT THREE BIDS IN THE FOLLOWING AMOUNTS WERE RECEIVED AND WERE OPENED ON OCTOBER 15. A FORMAL ALLEGATION OF THE ERROR WAS MADE IN A LETTER DATED NOVEMBER 2. IN WHICH HE EXPLAINED THAT THE BIDDER WAS A "ONE-MAN COMPANY" AND THAT THE ERRONEOUS BID PRICE RESULTED FROM USE OF INCORRECT LABOR COSTS BY AN EMPLOYEE WHO WAS BEING TRAINED AS HIS POTENTIAL SUCCESSOR. THE LETTER WAS ACCOMPANIED BY TWO ESTIMATE SHEETS. ONE OF WHICH ALLEGEDLY WAS THE COMPUTATION UPON WHICH THE BID HAD BEEN SUBMITTED. 201.04 IS LABELLED "CORRECT ESTIMATE.'. THE RULE IS WELL- ESTABLISHED THAT SUCH ACTION MAY NOT BE TAKEN UNLESS THE BIDDER IS ABLE TO ESTABLISH BY CONVINCING EVIDENCE THAT AN ERROR HAS OCCURRED.

B-129789, NOV. 23, 1956

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 14, 1956, REQUESTING OUR DECISION AS TO WHETHER JOHN T. MACKENROW AND COMPANY MAY BE PERMITTED TO WITHDRAW OR CHANGE THE BID WHICH IT SUBMITTED IN CONNECTION WITH PROJECT NO. M AND R 37-5326 FOR REPAIRS TO THE QUARRY TILE ROOF DECKS OF BUILDING NO. 1, VETERANS ADMINISTRATION HOSPITAL, WILKES-BARRE, PENNSYLVANIA.

THE RECORD INDICATES THAT THREE BIDS IN THE FOLLOWING AMOUNTS WERE RECEIVED AND WERE OPENED ON OCTOBER 15, 1956:

CHART

FIRM PRICE

THE PANTHER COMPANY $6,165.00

E. W. ROBERTS SONS 4,909.00

JOHN T. MACKENROW AND COMPANY 2,600.00

IN VIEW OF THE WIDE VARIATION IN BID PRICES THE CONTRACTING OFFICER REQUESTED THE LOW BIDDER TO VERIFY HIS BID PRICE. ON OCTOBER 31, 1956, PRIOR TO AWARD, A REPRESENTATIVE OF THE BIDDER ALLEGED THAT AN ERROR HAD BEEN MADE IN THE BID PRICE. A FORMAL ALLEGATION OF THE ERROR WAS MADE IN A LETTER DATED NOVEMBER 2, 1956, FROM JOHN T. MACKENROW, IN WHICH HE EXPLAINED THAT THE BIDDER WAS A "ONE-MAN COMPANY" AND THAT THE ERRONEOUS BID PRICE RESULTED FROM USE OF INCORRECT LABOR COSTS BY AN EMPLOYEE WHO WAS BEING TRAINED AS HIS POTENTIAL SUCCESSOR. THE LETTER WAS ACCOMPANIED BY TWO ESTIMATE SHEETS, ONE OF WHICH ALLEGEDLY WAS THE COMPUTATION UPON WHICH THE BID HAD BEEN SUBMITTED, WHILE THE SECOND, IN THE AMOUNT OF $4,201.04 IS LABELLED "CORRECT ESTIMATE.' BASED UPON THE SECOND ESTIMATE THE BIDDER HAS REQUESTED THAT HIS BID PRICE EITHER BE CORRECTED TO $4,200 OR THAT HE BE PERMITTED TO WITHDRAW HIS BID.

WITH RESPECT TO THE BIDDER'S REQUEST FOR CORRECTION, THE RULE IS WELL- ESTABLISHED THAT SUCH ACTION MAY NOT BE TAKEN UNLESS THE BIDDER IS ABLE TO ESTABLISH BY CONVINCING EVIDENCE THAT AN ERROR HAS OCCURRED, THE MANNER IN WHICH IT OCCURRED, IN WHAT IT CONSISTS, AND THE BID PRICE WHICH WOULD HAVE BEEN SUBMITTED IN THE ABSENCE OF ERROR. 9 COMP. GEN. 339; 14 ID. 78; 35 ID. 279. WHILE THE "CORRECT ESTIMATE" SUBMITTED BY THE BIDDER SHOWS SEVERAL VARIATIONS IN ESTIMATED QUANTITIES AND PRICES ON INDIVIDUAL ITEMS, WHEN COMPARED WITH THE ORIGINAL ESTIMATE, THE COMPUTATION NOW OFFERED AS CORRECT IS NOT ONE WHICH WAS PREPARED IN ADVANCE OF THE BIDDING AS A BASIS FOR THE INTENDED BID, BUT AN ENTIRELY NEW COMPUTATION. UNDER THE CIRCUMSTANCES THIS ESTIMATE DOES NOT ESTABLISH THE BIDDER'S INTENDED BID PRICE, BUT WHAT HE NOW THINKS HE SHOULD HAVE BID, AND THE REQUEST FOR CORRECTION MUST THEREFORE BE DENIED.

HOWEVER, ON THE BASIS OF THE ENTIRE RECORD, CONSIDERING THE AMOUNT OF THE BID AND OF THE VARIANCE FROM THE NEXT LOW BID, AND THE BIDDER'S SHOWING THAT THE BID SUBMITTED INCLUDED AN ERROR OF MORE THAN $1,000 IN LABOR COST, WE ARE OF THE OPINION THAT THE BID AS SUBMITTED COULD NOT BE ACCEPTED IN GOOD FAITH. THE BIDDER'S REQUEST FOR WITHDRAWAL MAY THEREFORE BE GRANTED. 17 COMP. GEN. 536.