B-131426, APR. 23, 1957

B-131426, APR. 23, 1957

TO THE ATTORNEY GENERAL:

REFERENCE IS MADE TO A LETTER DATED APRIL 4, 1957, WITH ENCLOSURES, FROM THE FISCAL OFFICER, BUREAU OF PRISONS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH MR. DENNIS FOUTY, JR., RAY, OHIO, ALLEGES HE MADE IN HIS BID ON WHICH UNNUMBERED CONTRACT DATED DECEMBER 21, 1956, WAS AWARDED.

SINCE AN AWARD HAS BEEN MADE IN THE PRESENT CASE, THE DECISION IS BEING ADDRESSED TO YOU. SEE 26 COMP. GEN. 993; AND 28 ID. 401.

THE FEDERAL REFORMATORY, CHILLICOTHE, OHIO, BY INVITATION NO. 5-4905 REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS SURPLUS MATERIALS. ITEM 23 WAS DESCRIBED IN THE INVITATION AS CHANNELS, METAL, 10 INCH LENGTH.

IT IS REPORTED THAT THE LENGTH OF THE METAL CHANNELS DESCRIBED UNDER ITEM 23 WAS ERRONEOUSLY LISTED IN THE INVITATION AS BEING 10 INCHES INSTEAD OF THE CORRECT LENGTH OF 10 FEET, AND THAT THIS FACT WAS MADE KNOWN TO BIDDERS INSPECTING THE MATERIAL; THAT MR. DENNIS FOUTY, JR. SUBMITTED A BID IN WHICH, OPPOSITE ITEM 23, HE INSERTED A UNIT PRICE OF $0.01 AND EXTENDED THE AMOUNT AS $181.01; THAT THE OTHER BIDDERS ON ITEM 23 QUOTED LOT PRICES OF $20 AND $9; THAT ON DECEMBER 21, 1956, ITEM 23 WAS AWARDED TO MR. FOUTY ON THE BASIS OF HIS $0.01 QUOTATION, WHICH WAS INTERPRETED AS BEING PER FOOT; AND THAT ON DECEMBER 28, 1956, MR. FOUTY VERBALLY ADVISED THAT HE HAD THOUGHT THAT HE WAS BIDDING ON A UNIT OF "EACH" AND NOT "FOOT," AND REQUESTED THAT HE BE RELEASED FROM ANY OBLIGATION UNDER HIS BID IN REGARD TO THAT ITEM.

IN A CONFIRMING LETTER DATED MARCH 11, 1957, MR. FOUTY STATED THAT ON THE COPY OF THE INVITATION HE RECEIVED, THE UNIT ON WHICH UNIT PRICES WERE TO BE BASED WAS NOT LEGIBLE AND THAT AS THE UNIT OF ALL OTHER ITEMS ON THE PAGE WAS LISTED AS "EACH," HE ASSUMED THAT THE UNIT OF ITEM 23 WAS ALSO "EACH; " AND THAT IT WAS NOT UNTIL HE WAS REQUESTED TO COMPLETE THE CONTRACT THAT HE LEARNED THAT THE UNIT OF ITEM 23 WAS "FOOT.' MR. FOUTY REQUESTED THAT HE BE RELEASED FROM ANY OBLIGATION UNDER HIS BID IN REGARD TO ITEM 23.

IT IS REPORTED THAT IT IS THE OPINION OF THE WARDEN OF THE FEDERAL REFORMATORY THAT THE GOVERNMENT CONTRIBUTED TO THE MISTAKE MADE BY MR. FOUTY IN DISTRIBUTING BID FORMS THAT WERE SO ILLEGIBLE AS TO LEAVE THE BIDDERS IN DOUBT AS TO THE UNIT ON WHICH THE UNIT PRICE FOR ITEM 23 WAS TO BE BASED. OUR OFFICE IS OF THE SAME OPINION. EVIDENCE OF SUCH DOUBT IS INDICATED BY THE FACT THAT THE TWO OTHER BIDDERS ON ITEM 23 QUOTED LOT PRICES FOR THAT ITEM.

ACCORDINGLY, AWARD OF ITEM 23 OF THE CONTRACT SHOULD BE CANCELED WITHOUT LIABILITY TO MR. FOUTY, AS ADMINISTRATIVELY RECOMMENDED.

A COPY OF THE INVITATION AND THE WARDEN'S MEMORANDUM OF FEBRUARY 27, 1957, ARE BEING RETAINED. THE OTHER PAPERS ARE RETURNED.