B-133712, OCT. 10, 1957

B-133712: Oct 10, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED AUGUST 28. ALL OF WHICH ARE THE SAME. UNDER EACH OF THE TWO ITEMS ARE SET FORTH THE SPECIFIC AREAS TO BE CLEANED AND PAINTED. ALTHOUGH THE INVITATION FOR BIDS WAS MAILED TO 48 FIRMS. ONLY TWO BIDS WERE RECEIVED. THE TWO BIDS RECEIVED AND THE GOVERNMENT'S ESTIMATE OF THE COST ARE AS FOLLOWS: TABLE TOTAL OF BOTH ITEMS FOR ALL ITEM 1.01 ITEM 1.02 7 VESSELS. . 871.00 THE GOVERNMENT'S ESTIMATE WAS BASED ON A COST OF $0.50 PER SQUARE FOOT FOR ITEM 1.01 AND $0.45 PER SQUARE FOOT FOR ITEM 1.02 TIMES THE ESTIMATED NUMBER OF SQUARE FEET FOR EACH ITEM. IT IS REPORTED THAT ALTHOUGH THE BID OF J. L. WILBURN AND COMPANY WAS ONLY ABOUT 25 PERCENT OF THE AMOUNT OF THE OTHER BID RECEIVED.

B-133712, OCT. 10, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED AUGUST 28, 1957, FROM THE ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION AS TO WHETHER THE REQUEST OF J. L. WILBURN AND COMPANY FOR RELIEF UNDER CONTRACT NO. DA-38-101-TC-209, MAY BE GRANTED.

THE CHARLESTON TRANSPORTATION DEPOT, NORTH CHARLESTON, SOUTH CAROLINA, BY INVITATION NO. TC-38-101-57-37, REQUESTED BIDS FOR FURNISHING ALL LABOR AND MATERIAL NECESSARY FOR THE CLEANING AND PAINTING OF SEVEN TUGS IN ACCORDANCE WITH SPECIFICATION NO. 45-57, ATTACHED THERETO. ITEM 1.01 OF THE SPECIFICATIONS COVERS THE CLEANING AND PAINTING OF UNDERWATER SURFACES OF THE VESSELS WITH VINYL PAINT, AND ITEM 1.02 COVERS THE CLEANING AND PAINTING OF CERTAIN EXTERIOR SURFACES ABOVE THE BOOT TOPPING LINE WITH CONVENTIONAL PAINT. THE SPECIFICATIONS GIVE THE PRINCIPAL DIMENSIONS OF THE TUGS, ALL OF WHICH ARE THE SAME, AND UNDER EACH OF THE TWO ITEMS ARE SET FORTH THE SPECIFIC AREAS TO BE CLEANED AND PAINTED, THE MANNER OF CLEANING, NUMBER OF COATS OF PAINT, ETC. THE LAST PARAGRAPH UNDER ITEM 1.01 PROVIDES "APPROXIMATELY 540 SQ. FT. OF SURFACE TO BE CLEANED AND PAINTED.' ALSO, THE LAST PARAGRAPH OF ITEM 1.02 PROVIDES "APPROXIMATELY 630 SQ. FT. OF SURFACE TO BE CLEANED AND PAINTED.' THE INVITATIONS REQUIRED BIDDERS TO QUOTE A LUMP-SUM UNIT PRICE PER VESSEL FOR THE WORK UNDER ITEMS 1.01 AND 1.02. ALSO, THE INVITATION REQUIRED A SUCCESSFUL BIDDER TO COMMENCE WORK WITHIN FIVE CALENDAR DAYS AFTER DATE OF AWARD AND TO COMPLETE THE WORK ON ALL SEVEN VESSELS WITHIN 20 CALENDAR DAYS AFTER DATE OF AWARD.

ALTHOUGH THE INVITATION FOR BIDS WAS MAILED TO 48 FIRMS, ONLY TWO BIDS WERE RECEIVED. THE TWO BIDS RECEIVED AND THE GOVERNMENT'S ESTIMATE OF THE COST ARE AS FOLLOWS:

TABLE

TOTAL OF BOTH

ITEMS FOR ALL

ITEM 1.01 ITEM 1.02 7 VESSELS.

--------- --------- --------------J. L. WILBURN AND CO. $ 324.00 $ 460.00 $ 5,488.00 SECOND BIDDER 1,718.00 1,432.00 22,050.00GOVERNMENT'S ESTIMATE 270.00 283.00 3,871.00

THE GOVERNMENT'S ESTIMATE WAS BASED ON A COST OF $0.50 PER SQUARE FOOT FOR ITEM 1.01 AND $0.45 PER SQUARE FOOT FOR ITEM 1.02 TIMES THE ESTIMATED NUMBER OF SQUARE FEET FOR EACH ITEM, AS SET FORTH IN THE SPECIFICATIONS, NAMELY, 540 AND 630, RESPECTIVELY.

IT IS REPORTED THAT ALTHOUGH THE BID OF J. L. WILBURN AND COMPANY WAS ONLY ABOUT 25 PERCENT OF THE AMOUNT OF THE OTHER BID RECEIVED, VERIFICATION OF THE BID WAS NOT BELIEVED NECESSARY SINCE IT WAS IN EXCESS OF THE GOVERNMENT'S ESTIMATE. THE CONTRACT WAS AWARDED TO AND ACCEPTED BY J. L. WILBURN AND COMPANY ON OCTOBER 29, 1956, WHICH REQUIRED THE CONTRACTOR TO COMMENCE WORK ON OR BEFORE NOVEMBER 3 AND TO COMPLETE THE WORK BY NOVEMBER 18, 1956. THE ACTUAL WORK WAS NOT BEGUN UNTIL ON OR ABOUT NOVEMBER 10 DUE TO DELAY IN RECEIPT OF THE PAINT AND THE WORK WAS COMPLETED ON DECEMBER 20, 1956. THE RECORD SHOWS THAT AMENDMENTS TO THE CONTRACT EXTENDED THE TIME FOR COMPLETION TO DECEMBER 20, 1956.

IT IS REPORTED THAT ON OR ABOUT NOVEMBER 11, 1956, A REPRESENTATIVE OF THE CONTRACTOR CALLED UPON THE CONTRACTING OFFICER AND DISCUSSED AN ALLEGED MISTAKE IN CONNECTION WITH THE AREA TO BE PAINTED. HE WAS ADVISED TO SUBMIT A STATEMENT IN WRITING SETTING FORTH THE NATURE OF THE MISTAKE AND THE RELIEF SOUGHT. BY LETTER DATED NOVEMBER 17, 1956, THE CONTRACTOR SUBMITTED A BREAKDOWN OF THE VARIOUS AREAS REQUIRED TO BE CLEANED AND PAINTED ON EACH VESSEL, WHICH SHOWED A TOTAL AREA OF 2,005 RATHER THAN 1170 SQUARE FEET (540 PLUS 630) AS SET FORTH IN THE SPECIFICATIONS AS THE APPROXIMATE AREA. THE CONTRACTOR ALLEGES THAT HIS BID WAS COMPUTED ON THE BASIS OF THE AREA SHOWN IN THE SPECIFICATIONS TIMES $0.60 PER SQUARE FOOT FOR THE UNDERWATER SURFACES (ITEM 1.01) AND $0.73 PER SQUARE FOOT FOR THE WATER SURFACES (ITEM 1.02), WITHOUT MAKING ANY INSPECTION OTHER THAN RIDING "AROUND THE VESSELS IN A PICK-UP TRUCK.' THE CONTRACTOR REQUESTS PAYMENT FOR THE DIFFERENCE BETWEEN THE ACTUAL AREA INVOLVED AND THE ESTIMATED AREA AS SHOWN IN THE SPECIFICATIONS, OR 835 SQUARE FEET, AT $0.60 PER SQUARE FOOT. THE CONTRACTING OFFICER REPORTS THAT HE CONSIDERED THE PER SQUARE FOOT COSTS USED BY THE CONTRACTOR AS BEING REASONABLE UNDER THE CIRCUMSTANCES.

ALSO, THE CONTRACTING OFFICER REPORTS THAT THE "SPECIFICATIONS WERE ACCURATE IN ALL RESPECTS, INCLUDING THE DIMENSIONS OF THE VESSELS AND THE SPECIFIC AREAS ON THE VESSELS TO BE CLEANED AND PAINTED.' THE SPECIFICATIONS OUTLINED IN DETAIL THE SPECIFIC AREAS TO BE CLEANED AND PAINTED BUT CONTAINED A REPRESENTATION THAT THE REQUIRED WORK COULD BE ACCOMPLISHED BY PAINTING APPROXIMATELY 1170 SQUARE FEET PER VESSEL, WHICH APPROXIMATE FIGURE HAS BEEN FOUND TO BE INCORRECT. HE FURTHER STATES THAT THE SPECIFICATIONS SPECIFICALLY STATED THAT THE VESSELS WERE AVAILABLE FOR INSPECTION AND, THEREFORE, CONCLUDES THAT THE BIDDERS MAY NOT SHIFT THEIR RESPONSIBILITY FOR PREPARING THEIR BIDS TO THE GOVERNMENT.

THE QUESTION INVOLVED IS WHETHER THE CONTRACTOR HAD A RIGHT TO RELY UPON THE APPROXIMATE NUMBER OF SQUARE FEET SET FORTH IN THE SPECIFICATIONS. THE PARTICULAR AREAS TO BE CLEANED AND PAINTED WERE DEFINITELY AND SPECIFICALLY SET FORTH IN THE SPECIFICATIONS. APPARENTLY THE VARIOUS AREAS COULD BE READILY SEEN AND REASONABLY ACTUAL MEASUREMENTS COULD HAVE BEEN EASILY COMPUTED. THERE WERE NO ADDITIONAL STIPULATIONS OR CONDITIONS IN THE SPECIFICATIONS PLACING THE RESPONSIBILITY UPON THE BIDDER TO ASCERTAIN FOR HIMSELF THE TOTAL SQUARE FOOTAGE OF THE AREAS TO BE CLEANED AND PAINTED OTHER THAN THAT THE VESSELS WERE AVAILABLE FOR INSPECTION. WOULD APPEAR THAT THE TOTAL AREA WOULD HAVE TO BE FOUND IN ORDER FOR THE GOVERNMENT TO ARRIVE AT A REASONABLE ESTIMATE OF THE COST AND TO FIX THE TIME IN WHICH THE WORK COULD BE ACCOMPLISHED. IN SUCH CIRCUMSTANCES, IT IS BELIEVED THAT THE BIDDER HAD THE RIGHT TO RELY UPON THE REPRESENTATIONS MADE BY THE GOVERNMENT THAT THE REQUIRED WORK COULD BE ACCOMPLISHED BY PAINTING APPROXIMATELY 1170 SQUARE FEET PER VESSEL. SEE UNITED STATES V. ATLANTIC DREDGING COMPANY, 253 U.S. 1; ARCOLE MIDWEST CORPORATION V. UNITED STATES, 125 C.CLS. 818. CF. 33 COMP. GEN. 616, AND CASES CITED THEREIN.

IT HAS BEEN GENERALLY HELD THAT IN CONTRACTS THE WORD "APPROXIMATELY" IN QUALIFYING QUANTITY, PRICE AND THE LIKE, MEANS VERY NEARLY BUT NOT ABSOLUTELY. IT IS SYNONYMOUS WITH AND MEANS "ABOUT" AND IS USED IN THE SENSE OF AN ESTIMATE, MEANING MORE OR LESS, BUT A REASONABLE APPROXIMATION TO THE QUANTITY OR AMOUNT SPECIFIED. IN THE INSTANT CASE, THE NUMBER OF SQUARE FEET SET FORTH IN THE SPECIFICATION AS THE AMOUNT OF PAINTING REQUIRED TO PERFORM THE SPECIFIED WORK WAS LESS THAN 60 PERCENT OF THAT ACTUALLY REQUIRED AND MAY NOT BE CONSIDERED AS A REASONABLE APPROXIMATION. FURTHERMORE, IF ALL THE VESSELS WERE TO HAVE BEEN PAINTED WITHIN 20 CALENDAR DAYS FROM RECEIPT OF THE NOTICE OF AWARD AS REQUIRED BY THE SPECIFICATIONS, IT WOULD APPEAR THAT THE OTHER BID IN THE AMOUNT OF $22,050 PROBABLY WAS MORE REALISTIC THAN EITHER THE BID OF J. L. WILBURN AND COMPANY OR THE GOVERNMENT'S ESTIMATE.

ACCORDINGLY, YOU ARE ADVISED THAT J. L. WILBURN AND COMPANY MAY BE PAID IN ADDITION TO THE CONSIDERATION SPECIFIED IN CONTRACT NO. DA-38 101-TC- 209, THE SUM OF $501 PER VESSEL (835 SQUARE FEET TIMES $0.60) AS THE REASONABLE VALUE OF THE WORK PERFORMED.

THE FOLDER CONTAINING THE CONTRACTOR'S COST DATA, SUBMITTED WITH YOUR LETTER, IS RETURNED.