B-134894, JAN. 22, 1958

B-134894, JAN. 22, 1958

TO MR. ALVA GROSS, CONTRACTING OFFICER, SOIL CONSERVATION SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1958, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE PROPRIETY OF THE ACTION OF THE SOIL CONSERVATION SERVICE IN REJECTING THE BID OF MR. E. D. GEYMONT, LINCOLNTON, NORTH CAROLINA, AND IN AWARDING A CONTRACT TO MR. FRED COLE CLODFELTER, LEXINGTON, NORTH CAROLINA, ON THE BASIS OF HIS BID SUBMITTED IN RESPONSE TO INVITATION NO. SCS-4-NC-58, AS AMENDED.

THE REFERRED-TO INVITATION COVERS THE FURNISHING OF MATERIALS AND LABOR AND PERFORMING THE WORK NECESSARY FOR THE CONSTRUCTION OF ONE EARTH IMPOUNDMENT TYPE DAM (SITE 9) ON THE THIRD CREEK WATERSHED PROJECT NEAR STATESVILLE, NORTH CAROLINA. THE WORK TO BE PERFORMED WAS DIVIDED INTO 13 ITEMS FOR PURPOSES OF SUBMITTING BIDS AND MAKING PAYMENT FOR THE WORK. ITEM 3 OF THE ORIGINAL BID SCHEDULE COVERED AN ESTIMATED QUANTITY OF 3,033 CUBIC YARDS OF UNCLASSIFIED EXCAVATION AND BY ADDENDUM NO. 1 DATED DECEMBER 17, 1957, THE CHARACTER OF THE WORK WAS CHANGED FROM CLASSIFIED EXCAVATION TO COMMON EXCAVATION. PROSPECTIVE BIDDERS WERE ADVISED THAT THE CONTRACT WOULD BE AWARDED TO THE BIDDER SUBMITTING THE LOWEST AGGREGATE BID ON THE ITEMS INVOLVED AND THAT "NO BID WILL BE CONSIDERED UNLESS ALL ITEMS IN THE BID SCHEDULE ARE PRICED.' IN RESPONSE MR. E. D. GEYMONT SUBMITTED A BID OFFERING TO PERFORM VARIOUS ITEMS OF WORK AT THE PRICES SET FORTH OPPOSITE EACH ITEM, WHICH TOTALED $12,999.05. ADDENDUM NO. 1, IN THE SPACES FOR SHOWING THE UNIT PRICE AND TOTAL PRICE FOR ITEM 3, MR. GEYMONT DID NOT ENTER ANY FIGURES BUT INSTEAD INSERTED THE WORD ,NONE" IN EACH OF THESE SPACES. THE SEVEN OTHER BIDDERS ON THE WORK QUOTED AGGREGATE TOTAL PRICES RANGING FROM $13,543.47 TO $20,693.42.

YOU STATE THAT SINCE MR. GEYMONT FAILED TO ENTER A PRICE FOR ITEM 3 AS REQUIRED BY THE INVITATION, IT WAS THE OPINION OF YOUR OFFICE THAT HIS BID WAS NOT FOR CONSIDERATION; AND THAT IT WAS DETERMINED THAT THE BID OF MR. FRED COLE CLODFELTER WAS THE LOWEST ACCEPTABLE BID AND THAT BY LETTER DATED DECEMBER 31, 1957, MR. CLODFELTER WAS NOTIFIED THAT HIS BID HAD BEEN ACCEPTED ON THE BASIS OF THE UNIT PRICES SHOWN THEREIN. IT IS ALSO STATED THAT ON JANUARY 6, 1958, MR. GEYMONT CALLED YOUR OFFICE BY TELEPHONE AND REQUESTED INFORMATION CONCERNING HIS BID; THAT IT WAS EXPLAINED TO HIM THAT AS HE HAD ONLY WRITTEN THE WORD "NONE" OPPOSITE ITEM 3 HE HAD FAILED TO BID ON ALL ITEMS AS REQUIRED AND, THEREFORE, HIS BID WAS NOT CONSIDERED; AND THAT MR. GEYMONT STATED THAT HIS ENTRY OF THE WORD "NONE" OPPOSITE ITEM 3 WAS INTENDED TO MEAN HE WOULD PERFORM THE WORK CALLED FOR UNDER THIS ITEM "FREE OF CHARGE.' IT IS STATED FURTHER THAT YOUR OFFICE HAS NEVER BEFORE RECEIVED A BID IN WHICH THE BIDDER OFFERED TO PERFORM ANY WORK COVERED BY ANY ITEM "FREE OF CHARGE" AND THAT THE ABSTRACT OF BIDS RECEIVED INDICATES A MINIMUM OF $1,213.20 BID ON THE ITEM IN QUESTION. LETTER DATED JANUARY 6, 1958, MR. GEYMONT CONFIRMED HIS INTENTION TO INSERT A "NO CHARGE" BID ON ITEM 3.

IT HAS BEEN CONSISTENTLY HELD BY OUR OFFICE THAT IT IS THE PRIMARY RESPONSIBILITY OF THE BIDDER TO SEE THAT HIS BID CONFORMS TO ALL OF THE REQUIREMENTS OF THE INVITATION. IN INSTANCES WHERE THERE IS DOUBT AS TO WHETHER A BID DOES CONFORM TO ALL OF THE REQUIREMENTS OF THE INVITATION, A DETERMINATION MUST OF NECESSITY BE MADE BY THE CONTRACTING OFFICER. THE SUBJECT INVITATION REQUIRED THAT UNIT PRICES BE SHOWN FOR THE INDIVIDUAL ITEMS AND, IN VIEW OF THE FACT THAT ESTIMATED QUANTITIES WERE SHOWN FOR EACH ITEM IN THE INVITATION, THERE APPEARS TO HAVE BEEN A NEED FOR SUCH A REQUIREMENT. ON ADDENDUM NO. 1 MR. GEYMONT DID NOT ENTER ANY PRICES OPPOSITE ITEM 3 BUT INSTEAD INSERTED THE WORD "NONE" IN THE "UNIT PRICE" AND "TOTAL" SPACES PROVIDED FOR THAT ITEM. SINCE THE LANGUAGE USED BY MR. GEYMONT IS SUBJECT TO THE INTERPRETATION PLACED UPON IT BY YOU, NAMELY, THAT HE DID NOT INTEND TO "PRICE" ITEM 3, THE ACTION TAKEN IN AWARDING THE CONTRACT TO THE SECOND LOW BIDDER WAS NOT SUCH AN ARBITRARY ACTION AS TO RENDER THE AWARD ILLEGAL.

IN THE CIRCUMSTANCES, YOU ARE ADVISED THAT THE AWARD AS MADE TO MR. FRED COLE CLODFELTER WILL NOT BE QUESTIONED BY THIS OFFICE.