B-134953, FEB. 12, 1958

B-134953, FEB. 12, 1958

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED JANUARY 20, 1958, WITH ENCLOSURES, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH THE LINGEFELT CHIMNEY AND TUCKPOINTING COMPANY, ST. PAUL, MINNESOTA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. 14-20-100-2809 WAS AWARDED.

THE BUREAU OF INDIAN AFFAIRS, ABERDEEN, SOUTH DAKOTA, BY INVITATION NO. BPM100-1055 REQUESTED BIDS--- TO BE OPENED JUNE 25, 1957--- FOR FURNISHING LABOR AND MATERIALS AND PERFORMING THE WORK NECESSARY FOR THE MAKING OF MASONRY REPAIRS AND FOR THE INSTALLATION OF LIGHTNING PROTECTIVE EQUIPMENT ON FLANDREAU INDIAN SCHOOL BUILDING NO. 70, FLANDREAU, SOUTH DAKOTA, AND ON WAHPETON INDIAN SCHOOL BUILDING NO. 25, WAHPETON, NORTH DAKOTA, ITEM 1 OF SCHEDULES "A" AND "B.' UNDER ITEM 2 OF EACH SCHEDULE PROSPECTIVE BIDDERS WERE REQUESTED TO SUBMIT ALTERNATE QUOTATIONS FOR FURNISHING AND INSTALLING AERONAUTICAL CLEARANCE LIGHTS ON THE CHIMNEYS OF THESE BUILDINGS.

THE ABSTRACT OF BIDS SHOWS THAT THE FOLLOWING BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION:

TABLE

SCHEDULE A-FLANDREAU SCHEDULE B-WAHPETON

BIDDER BASE ALTERNATE BASE ALTERNATE TOTAL LINGEFELT CHIMNEY AND TUCKPOINTING COMPANY $ 920.00 $ 304.00$ 945.00 $ 304.00 $2,473.00

NO. 2 2,935.00 NO BID 2,790.00 NO BID 5,725.00

NO. 3 3,562.00 501.00 3,642.00 501.00 8,206.00

NO. 4 3,590.00 360.00 3,590.00 360.007,900.00

NO. 5 1,850.00 1,920.00 2,150.001,920.00 7,840.00 THE GOVERNMENT'S ESTIMATE FOR THE WORK COVERED BY BOTH SCHEDULES, INCLUDING THE ALTERNATES, WAS $7,199.50.

IT IS REPORTED THAT BECAUSE THE BID OF THE LINGEFELT CHIMNEY AND TUCKPOINTING COMPANY WAS EXTREMELY LOW WHEN COMPARED WITH THE OTHER BIDS RECEIVED, MR. LINGEFELT WAS CONTACTED BY TELEPHONE ON JUNE 26, 1957, AND WAS INFORMED OF THE WIDE VARIANCE BETWEEN HIS BID AND THE NEXT LOW BID; THAT THE CONTRACTING OFFICE QUESTIONED MR. LINGEFELT ABOUT THE ACCURACY OF HIS BID AND HIS ABILITY TO PERFORM THE WORK AT THE PRICES QUOTED; AND THAT MR. LINGEFELT GAVE VERBAL ASSURANCE THAT HE PERSONALLY INSPECTED EACH JOB, WAS FULLY ACQUAINTED WITH THE REQUIREMENTS, AND THAT HE COULD PERFORM THE WORK AT THE PRICES QUOTED. BY LETTER DATED JUNE 26, 1957, THE LINGEFELT CHIMNEY AND TUCKPOINTING COMPANY WAS NOTIFIED THAT IT HAD BEEN AWARDED A CONTRACT FOR THE PERFORMANCE OF THE WORK COVERED BY SCHEDULES 1 AND 2, INCLUDING THE ALTERNATES, AND IT WAS REQUESTED TO EXECUTE THE ENCLOSED CONTRACT FORMS AND RETURN THEM TO THE CONTRACTING OFFICE.

IN THE LETTER OF JANUARY 20, 1958, IT IS STATED---

"AT 8:03 A.M., JUNE 28, 1957 AN UNDATED AIR-MAIL, SPECIAL-DELIVERY LETTER WAS RECEIVED FROM MR. LINGEFELT IN THE BUREAU'S ABERDEEN AREA OFFICE, THE ENVELOPE SHOWING POSTAL CANCELLATION 10:00 M., JUNE 27 AT ST. PAUL, MINNESOTA. IN THIS LETTER HE STATED, IN PART:

"* * * WE, TO OUR OWN FAULT, FORGOT TO PUT THE MATERIAL COSTS ON BOTH JOBS. EVEN WHEN YOU CALLED US WE HAD NOT SEEN OUR MISTAKE AND IT WAS NOT UNTIL LATER THAT WE FOUND IT. WE FORGOT TO ADD THE $624 MATERIAL COST ON A NO. 1 AND $648 MATERIAL COST ON B NO. 1 * * *.'

THUS, HE CLAIMED A $1,272.00 ERROR AS A SHORTAGE IN HIS QUOTATION AFTER THE AWARD HAD BEEN MADE AND MAILED, WHICH INDICATED HIS BID SHOULD HAVE TOTALED $3,745.00.

"IMMEDIATELY, UPON RECEIPT OF MR. LINGEFELT'S LETTER THE BUREAU'S ABERDEEN OFFICE TELEPHONED HIS OFFICE AND WAS ADVISED BY HIS SECRETARY THAT THE NOTICE OF AWARD OF CONTRACT, LETTER OF JUNE 26, TOGETHER WITH CONTRACT AND BOND FORMS HAD BEEN RECEIVED, THAT MR. LINGEFELT WAS OUT ON A JOB AND COULD NOT BE REACHED BY PHONE. IT WAS REQUESTED THAT SHE ADVISE MR. LINGEFELT THAT SINCE THE AWARD HAD BEEN PROCESSED, THE OFFICE HAD NO AUTHORITY TO PERMIT A MODIFICATION IN THE PRICE OR WITHDRAWAL OF THE BID AND THAT MR. LINGEFELT SHOULD ADVISE THEM AT ONCE HIS INTENTIONS IN THE MATTER.

"IN ORDER TO DETERMINE WHETHER OR NOT MR. LINGEFELT HAD RECEIVED THE LETTER OF AWARD PRIOR TO POSTING HIS LETTER OF JUNE 27, IN WHICH THE ERROR WAS CLAIMED, THE POST OFFICE IN ABERDEEN WAS CONTACTED. THEY ADVISED THAT A LETTER LEAVING ABERDEEN, SOUTH DAKOTA AT 5 P.M., WHICH WAS THE SCHEDULED DEPARTURE OF THE DAILY EAST BOUND TRAIN, WOULD NOT ARRIVE IN ST. PAUL, MINNESOTA DEPOT EARLIER THAN 8:07 A.M. THE NEXT DAY. DELIVERY TIME TO OFFICES IN ST. PAUL NORMALLY REQUIRES IN EXCESS OF TWO HOURS FROM THE DEPOT. THEY ALSO ADVISED THAT LINGEFELT'S LETTER, POST MARKED 10 A.M. AT ST. PAUL, COULD HAVE BEEN MAILED IN DROP BOX OR POST OFFICE FROM 30 MINUTES TO ONE HOUR PRIOR TO HOUR OF CANCELLATION. IT IS APPARENT, THEREFORE, THAT MR. LINGEFELT HAD NOT RECEIVED THE LETTER OF AWARD AT THE TIME HE WROTE AND MAILED HIS LETTER OF JUNE 27. HE HAD, HOWEVER, RECEIVED THE NOTICE OF AWARD BEFORE HIS LETTER GIVING NOTICE OF ERROR WAS RECEIVED BY THE BUREAU'S ABERDEEN OFFICE.'

IT IS REPORTED THAT BY LETTERS DATED JULY 5 AND AUGUST 9, 1957, THE LINGEFELT CHIMNEY AND TUCKPOINTING COMPANY WAS REQUESTED TO ADVISE THE ABERDEEN AREA OFFICE OF THE ACTION THEY PLANNED TO TAKE IN REGARD TO THE EXECUTION OF THE CONTRACT FORMS AND THAT AS OF JANUARY 20, 1958, THE COMPANY HAD FAILED TO ANSWER EITHER OF THE LETTERS.

ON THE RECORD, THERE SEEMS NO ROOM FOR DOUBT THAT THE PRICES QUOTED BY THE LINGEFELT CHIMNEY AND TUCKPOINTING COMPANY ARE TOO LOW FOR THE WORK TO BE PERFORMED, AND IT IS OUR OPINION THAT TO REQUIRE THE COMPANY TO PERFORM THE WORK AT ITS BID PRICES WOULD BE UNCONSCIONABLE. ACCORDINGLY, SINCE ERROR WAS ALLEGED BY THE LINGEFELT CHIMNEY AND TUCKPOINTING COMPANY ALMOST SIMULTANEOUSLY WITH THE ACCEPTANCE OF ITS BID, AND APPARENTLY BEFORE IT BECAME AWARE OF THE ACCEPTANCE OF ITS BID, THE COMPANY MAY BE RELEASED FROM LIABILITY UNDER THE BID.