B-135250, FEB. 28, 1958

B-135250: Feb 28, 1958

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COLUMBIA BASIN PROJECT: REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 7. BIDS WERE REQUESTED FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION AND COMPLETION OF AUTOMATIC CONTROLS FOR RADIAL GATE CHECKS AT SEVEN LOCATIONS ALONG THE POTHOLES EAST CANAL. THAT THE GOVERNMENT'S ESTIMATE FOR THE WORK WAS $9. WAS PRESENT AT THE BID OPENING AND THAT DURING THE COURSE OF AN INTERVIEW FOLLOWING THE BID OPENING. JENKINS WAS REQUESTED TO FURNISH A LETTER FROM THE CORPORATION CONFIRMING ITS BID PRICE. JENKINS REQUESTED THAT THE SPECIFICATIONS BE REVIEWED TO DETERMINE WHETHER THESE ITEMS WERE A PART OF THE WORK TO BE PERFORMED AND STATED THAT IF THEY WERE. THE CORPORATION'S ORIGINAL ESTIMATE SHEET WAS SUBMITTED.

B-135250, FEB. 28, 1958

TO MR. L. V. DOWNS, ACTING PROJECT MANAGER, COLUMBIA BASIN PROJECT:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 7, 1957 (1958), WITH ENCLOSURES, FILE REFERENCE 220, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH THE CARTER-MILLER MILL FURNISHING COMPANY, INC., SPOKANE 11, WASHINGTON, ALLEGES IT MADE IN ITS BID OPENED ON JANUARY 28, 1958.

BY SPECIFICATIONS NO. 117C-494 DATED JANUARY 7, 1958, BIDS WERE REQUESTED FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION AND COMPLETION OF AUTOMATIC CONTROLS FOR RADIAL GATE CHECKS AT SEVEN LOCATIONS ALONG THE POTHOLES EAST CANAL, FOURTH SECTION, IN FRANKLIN COUNTY, WASHINGTON. IN RESPONSE THE CARTER-MILLER MILL FURNISHING COMPANY, INC., SUBMITTED A BID DATED JANUARY 28, 1958, OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $5,740. THE ABSTRACT OF BIDS SHOWS THAT THE SEVEN OTHER BIDDERS ON THE PROJECT QUOTED LUMP SUM PRICES RANGING FROM $11,280 TO $22,500, AND THAT THE GOVERNMENT'S ESTIMATE FOR THE WORK WAS $9,000.

YOU STATE THAT MR. H. L. JENKINS, WHO PREPARED THE LOW BID OF THE CARTER- MILLER MILL FURNISHING COMPANY, INC., WAS PRESENT AT THE BID OPENING AND THAT DURING THE COURSE OF AN INTERVIEW FOLLOWING THE BID OPENING, MR. JENKINS WAS REQUESTED TO FURNISH A LETTER FROM THE CORPORATION CONFIRMING ITS BID PRICE; THAT BY LETTER DATED JANUARY 28, 1958, RECEIVED ON JANUARY 29, 1958, THE CORPORATION CONFIRMED ITS BID PRICE; THAT DURING THE AFTERNOON OF JANUARY 30, 1958, MR. JENKINS TELEPHONED YOUR OFFICE ALLEGING THAT THE CORPORATION'S BID DID NOT INCLUDE AN ALLOWANCE FOR FURNISHING MATERIALS AND CONSTRUCTING THE SEVEN FLOAT WELLS; AND THAT MR. JENKINS REQUESTED THAT THE SPECIFICATIONS BE REVIEWED TO DETERMINE WHETHER THESE ITEMS WERE A PART OF THE WORK TO BE PERFORMED AND STATED THAT IF THEY WERE, THE CORPORATION'S BID SHOULD BE INCREASED APPROXIMATELY $700, OF WHICH $264 WOULD BE THE COST OF THE CORRUGATED-METAL PIPE AND THE REMAINDER COULD BE CLASSED AS COSTS OF MISCELLANEOUS METAL WORK AND LABOR.

IN A NOTARIZED LETTER DATED JANUARY 31, 1958, MR. JENKINS STATED THAT IN COMPUTING THE CORPORATION'S BID PRICE FOR THE PROJECT, HE HAD FAILED TO INCLUDE THE COST OF 66 FEET OF 16 GAGE CORRUGATED GALVANIZED 24 INCH DIAMETER PIPE AND THE COST OF THE INSTALLATION, FABRICATION, FREIGHT, APPURTENANT ANGLE IRONS, AND FASTENERS. HE REQUESTED THAT THE CONTRACT PRICE OF THE PROJECT BE INCREASED BY THE AMOUNT OF $777.78 TO COVER THE COST OF THE OMITTED MATERIALS AND LABOR, PLUS TEN PERCENT PROFIT. SUPPORT OF THE ALLEGATION OF ERROR, THE CORPORATION'S ORIGINAL ESTIMATE SHEET WAS SUBMITTED, WHICH SHOWS THAT THE COST OF THE CORRUGATED-METAL PIPE WAS NOT INCLUDED IN ITS BID PRICE.

THE BASIC RULE IS THAT BIDS MAY NOT BE CHANGED AFTER THE TIME FIXED FOR OPENING. THE EXCEPTION TO SUCH RULE, WHICH PERMITS CORRECTION OF A BID UPON SUFFICIENT EVIDENCE TO ESTABLISH THAT THE BIDDER ACTUALLY INTENDED TO BID AN AMOUNT OTHER THAN THAT SET FORTH IN THE BID, WHERE THE CONTRACTING OFFICER IS ON NOTICE OF PROBABLE ERROR PRIOR TO ACCEPTANCE, DOES NOT EXTEND TO THE RECALCULATION OR CHANGING OF THE BID WITHOUT CONCLUSIVE PROOF AS TO THE AMOUNT OF THE INTENDED BID. SEE 17 COMP. GEN. 575, 577; AND 31 ID. 183, 184. IN THE PRESENT CASE THE CARTER-MILLER MILL FURNISHING COMPANY, INC., HAS NOT SUBMITTED SUCH PROOF, BUT ONLY A COST ESTIMATE, ADMITTEDLY MADE UP AFTER THE BID OPENING AND DISCOVERY OF ITS ERROR.

IN THE CIRCUMSTANCES, THE BID OF THE CARTER-MILLER MILL FURNISHING COMPANY, INC., MAY NOT BE CORRECTED. HOWEVER, SINCE THE FACTS AND EVIDENCE OF RECORD ESTABLISH THAT THE BID OF THE CORPORATION WAS IN ERROR, AND SINCE THE ERROR WAS ALLEGED AND EXPLAINED BY THE CORPORATION PRIOR TO AWARD, THE BID OF THE CARTER-MILLER MILL FURNISHING COMPANY, INC., MAY BE DISREGARDED WITHOUT FORFEITURE OF BID SECURITY.