B-134580, JAN. 10, 1958

B-134580, JAN. 10, 1958

TO REILLY, WELLS AND RHODES:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 5, 1957, ADDRESSED TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, PROTESTING CONSIDERATION OF A BID SUBMITTED BY ROBERTS E. LATIMER, JR., INC., FOR AWARD UNDER AN INVITATION FOR BIDS ON PROJECT NO. C12-O 56A.

THE REPORT FROM THE PRESIDENT OF THE BOARD OF COMMISSIONERS TO THIS OFFICE IN THE MATTER INDICATES THAT THE INVITATION IN QUESTION SOLICITED BIDS FOR CLEARING, GRUBBING, EXCAVATING, FILLING, AND GRADING AT THE SITE OF THE PROPOSED NEW YOUTH CORRECTIONAL CENTER NEAR LORTON, VIRGINIA, ON AN ITEM BY ITEM BASIS AS FOLLOWS:

CHART ITEM ESTIMATED UNIT ESTIMATED NO. DESCRIPTION QUANTITY UNIT PRICE AMOUNT 1. CLEARING AND GRUBBING - - LUMP SUM $ ----- $ ------ 2. EXCAVATION 175,200 CU. YD. ------- ------- 3. FILL 137,400 CU. YD. ------ - ------- TOTAL BASE BID (SUM OF ITEMS 1 THRU 3): ---------- -------

NO REFERENCE WAS MADE IN THE INVITATION TO THE POSSIBILITY OF BORROW MATERIALS BEING REQUIRED TO COMPLETE THE NECESSARY FILL OR TO THE METHOD OR ABSENCE OF PAYMENT FOR THE ADDITIONAL WORK OR MATERIALS IN THE EVENT BORROW MATERIALS WERE USED. HOWEVER THE FOLLOWING ADVICE TO BIDDERS WAS SET OUT ON PAGE CI-1 OF THE INVITATION:

"REQUESTS FOR INTERPRETATIONS OF SPECIFICATIONS, RECEIVED IN WRITING BY THE OFFICE OF DESIGN AND ENGINEERING NOT LATER THAN FIVE (5) DAYS PRIOR TO THE DATE OF OPENING OF BIDS WILL BE ANSWERED IN THE FORM OF ADDENDA TO THE SPECIFICATIONS, COPIES OF WHICH WILL BE MAILED TO ALL BIDDERS NOT LATER THAN THREE (3) DAYS BEFORE DATE OF OPENING OF BIDS.

VERBAL REQUESTS FOR INTERPRETATIONS CANNOT BE ANSWERED.'

THE LOW BID WAS SUBMITTED BY ROBERTS E. LATIMER, JR., INC., AND WAS ACCOMPANIED BY A LETTER READING AS FOLLOWS:

"WE ARE SUBMITTING THIS BID WITH THIS UNDERSTANDING OF THE "FORM OF BID" AS PERTAINS TO "ITEM 3 - FILL":---

"WE BELIEVE THAT THE FILL NAMED IS ACTUALLY THE PLACING OF THE EXCAVATED MATERIAL AS GIVEN IN ITEM 2 OF THE FORM OF BID AND IS NOT A SEPARATE BORROW ITEM.'

YOUR LETTER OF DECEMBER 5, 1957, STATES THAT THE ABOVE-QUOTED PORTION OF THE INVITATION WHICH MAKES SPECIFIC PROVISION FOR THE SUBMISSION OF REQUESTS FOR INTERPRETATIONS OF THE SPECIFICATIONS WAS INTENDED TO PRECLUDE THE SUBMISSION OF BIDS ACCOMPANIED BY INTERPRETATIONS OF THE BIDDER ON QUESTIONS WHICH HAD NOT BEEN SUBMITTED TO THE CONTRACTING OFFICER. YOU EXPRESS THE OPINION THAT THE INTERPRETATION WHICH ACCOMPANIED THE BID OF ROBERTS E. LATIMER, JR., INC., REQUIRED THE CONTRACTING OFFICER TO EITHER ADOPT SUCH INTERPRETATION OR RESERVED TO THE BIDDER THE RIGHT TO REFUSE AN AWARD BASED UPON ANY OTHER INTERPRETATION. ACCORDINGLY, YOU CONTEND THAT SUCH BID IS QUALIFIED AND SHOULD BE REJECTED.

WITH RESPECT TO THE PROCEDURE PRESCRIBED BY THE INVITATION FOR SECURING WRITTEN INTERPRETATIONS FROM THE CONTRACTING OFFICER, WE FIND NOTHING IN SUCH PROVISION WHICH COULD BE CONSTRUED TO REQUIRE A BIDDER TO FOLLOW SUCH PROCEDURE AT THE RISK OF HAVING HIS BID, SUBMITTED IN ACCORDANCE WITH A PROPER INTERPRETATION OF THE SPECIFICATIONS, REJECTED.

THE CONTRACTING OFFICER HAS ADVISED IT WAS ANTICIPATED THAT ALL REQUIRED FILL MATERIAL WOULD BE AVAILABLE FROM EXCAVATION UNDER PAY ITEM NO. 2 AND THAT IT IS NORMAL PRACTICE, WHERE THE USE OF BORROW MATERIAL IS CONTEMPLATED, TO MAKE SPECIFIC REFERENCE TO THE LOCATION OF, AND METHOD OF PAYMENT FOR, SUCH MATERIAL IN THE SPECIFICATIONS. IN VIEW OF THE ABSENCE OF REFERENCE TO BORROW MATERIAL IN THE PRESENT INVITATION WE ARE OF THE OPINION THAT NO OTHER CONSTRUCTION OF THE INVITATION COULD BE SUPPORTED AS A MATTER OF LAW AND THAT THE DISTRICT OF COLUMBIA WOULD BE OBLIGATED TO MAKE AN ADJUSTMENT IN THE CONTRACT PRICE IN THE EVENT IT IS FOUND THAT BORROW MATERIAL IS NECESSARY, REGARDLESS OF WHETHER THE ACCEPTED BID HAD, OR HAD NOT, SPECIFICALLY RESERVED THE RIGHT TO SUCH ADJUSTMENT. WHILE IT IS TRUE THAT A BID WHICH IS QUALIFIED BY STIPULATIONS WHICH MAKE IT NONRESPONSIVE TO THE INVITATION FOR BIDS MUST BE REJECTED, 13 COMP. GEN. 169; 15 ID. 553; 20 ID. 216, THIS RULE HAS NO APPLICATION WHERE, AS HERE, THE BID IS ACCOMPANIED BY AN INTERPRETATION WHICH IS IN ACCORD WITH THE INTENT OF THE INVITATION.

WE ARE THEREFORE OF THE OPINION THAT THE FAILURE OF ROBERTS E. LATIMER, JR., INC., TO REQUEST A WRITTEN VERIFICATION OF THE INTERPRETATION UPON WHICH ITS BID WAS BASED DOES NOT CONSTITUTE A SUFFICIENT GROUND FOR ITS REJECTION AND, SINCE THE BID WAS BASED UPON A PROPER INTERPRETATION OF THE SPECIFICATIONS, IT FOLLOWS THAT SUCH INTERPRETATION DID NOT CONSTITUTE A QUALIFICATION WHICH WOULD RENDER THE BID NONRESPONSIVE TO THE INVITATION.

UNDER THE CIRCUMSTANCES, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE AWARD MADE TO ROBERTS E. ..END :