B-135641, MAY 22, 1958, 37 COMP. GEN. 785

B-135641: May 22, 1958

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CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ADDENDA ACKNOWLEDGMENT A LOW BIDDER'S LETTER BID WHICH IS AMBIGUOUS AND DOES NOT REFER TO AN INVITATION AMENDMENT WHICH MIGHT AFFECT THE PRICE OFFERED BY THE BIDDER SHOULD BE DISREGARDED IN MAKING THE AWARD. 1958: REFERENCE IS MADE TO LETTER DATED MAY 1. WAS AMENDED BY AMENDMENT NO. 1. THERE WAS A LETTER DATED MARCH 25. AS FOLLOWS: WE ARE GLAD TO BID FOR THE LAFAYETTE PARK RECREATION CENTER BUILDING. OF MARYLAND IN THE AMOUNT OF 20 PERCENT OF THIS CONTRACT IS ENCLOSED. IN THE STANDARD FORM BID THE SUN COMPANY ALSO INSERTED UNIT PRICES FOR ADJUSTMENT OF THE PRICE IN THE EVENT FOUNDATIONS SHOULD HAVE TO GO DEEPER THAN CONTEMPLATED.

B-135641, MAY 22, 1958, 37 COMP. GEN. 785

CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - ADDENDA ACKNOWLEDGMENT A LOW BIDDER'S LETTER BID WHICH IS AMBIGUOUS AND DOES NOT REFER TO AN INVITATION AMENDMENT WHICH MIGHT AFFECT THE PRICE OFFERED BY THE BIDDER SHOULD BE DISREGARDED IN MAKING THE AWARD.

TO THE SECRETARY OF THE INTERIOR, MAY 22, 1958:

REFERENCE IS MADE TO LETTER DATED MAY 1, 1958, WITH ENCLOSURES, FROM THE UNDER SECRETARY, REPORTING ON THE PROTEST OF EDROW ENGINEERING, INC., WASHINGTON, D.C., AGAINST AWARD BY THE NATIONAL CAPITAL PARKS OF CONTRACT NO. 14-10-028-1307, FOR THE CONSTRUCTION OF A RECREATION STRUCTURE AND MISCELLANEOUS WORK AT LAFAYETTE RECREATION CENTER TO SUN CONSTRUCTION CORP., ON THE GROUND THAT THE LATTER'S BID DOES NOT CONFORM TO THE INVITATION AND AMENDMENTS THERETO.

THE INVITATION FOR BIDS ISSUED MARCH 11, 1958, WAS AMENDED BY AMENDMENT NO. 1, DATED MARCH 18, 1958, AS FOLLOWS:

* * * THE HEIGHT OF A GLAZED CERAMIC WAINSCOT IN THE BOYS AND GIRLS TOILETS SHALL BE 5 FOOT/6 INCHES AS INDICATED ON THE FLOOR PLAN, SHEET 2 IN LIEU OF 4 FOOT/0 INCHES AS INDICATED ON SECTION 10-0, SHEET 5; THE COVE BASE SHALL BE 4 1/4 INCHES X 4 1/4 INCHES IN LIEU OF 6 INCHES X 6 INCHES AS INDICATED ON SECTION 10-0, SHEET 5.

AMONG THE BIDS OPENED ON MARCH 25, 1958, THERE WAS A LETTER DATED MARCH 25, 1958, SIGNED BY THE SECRETARY TREASURER OF THE SUN CONSTRUCTION CORP., AS FOLLOWS:

WE ARE GLAD TO BID FOR THE LAFAYETTE PARK RECREATION CENTER BUILDING, CONTRACT NO. 14-10-028-1307.

ACCORDING TO PLANS AND SPECIFICATIONS WE PROPOSED TO BUILD SAID RECREATION CENTER FOR THE SUM OF:

NINETEEN THOUSAND NINE HUNDRED AND SEVENTY DOLLARS * * * $19,970,00.

BID BOUND BY FIDELITY AND DEPOSIT CO. OF MARYLAND IN THE AMOUNT OF 20 PERCENT OF THIS CONTRACT IS ENCLOSED.

THE OTHER SEVEN BIDS RANGED FROM $22,200 TO $29,500. ON MARCH 26, 1958, THE SUN CONSTRUCTION CORP. SUBMITTED ITS BID ON THE INVITATION REQUIRED STANDARD BID FORM 21, WHICH, FOLLOWING THE PRINTED STATEMENT," THE UNDERSIGNED ACKNOWLEDGES RECEIPT OF THE FOLLOWING ADDENDA TO THE DRAWINGS AND/OR SPECIFICATIONS ( GIVE NUMBER AND DATE OF EACH), STATED " ADDENDA RECEIVED.' IN THE STANDARD FORM BID THE SUN COMPANY ALSO INSERTED UNIT PRICES FOR ADJUSTMENT OF THE PRICE IN THE EVENT FOUNDATIONS SHOULD HAVE TO GO DEEPER THAN CONTEMPLATED, WHICH WERE CALLED FOR BY THE INVITATION BUT NOT INCLUDED IN THE LETTER BID.

IN A MEMORANDUM DATED APRIL 11, 1958, THE ACTING SUPERINTENDENT OF THE NATIONAL CAPITAL PARKS STATED:

AMENDMENT NO. 1 WAS ISSUED FOR THE PURPOSE OF CORRECTING A DISCREPANCY IN TWO DIMENSIONS SHOWN ON THE CONSTRUCTION DRAWINGS. THE CHANGES WERE NECESSARY TO ELIMINATE ANY MISUNDERSTANDING IN INTERPRETATION AND ARE OF A MINOR NATURE WHICH WOULD NOT MATERIALLY EFFECT THE BID PRICE.

IT HAS BEEN ASCERTAINED INFORMALLY THAT THE AMENDMENT MIGHT AFFECT THE BID PRICE TO THE EXTENT OF $200 INCLUDING PROFIT.

IN CERTAIN INSTANCES, LETTER BIDS WHICH REFERRED TO THE INVITATION INVOLVED HAVE BEEN CONSIDERED FOR AWARD WHEN THERE WAS NO DOUBT THAT THE BIDDER WAS AWARE OF AND INTENDED TO MEET ALL THE GOVERNMENT'S CONTRACT REQUIREMENTS. B-128399, JULY 19, 1956, AND B-113920, FEBRUARY 27, 1953. CF. B-120202, JULY 19, 1954. ON THE OTHER HAND, THE GENERAL RULE IS THAT IF AN AMENDMENT TO AN INVITATION AFFECTS THE PRICE, QUANTITY OR QUALITY OF THE PROCUREMENT, FAILURE OF THE BIDDER TO ACKNOWLEDGE THAT AMENDMENT IN THE MANNER REQUIRED BY THE INVITATION OR AMENDMENT CANNOT BE WAIVED. 131796, JULY 14, 1957; B-128645, SEPTEMBER 28, 1956; B-123911, JULY 7, 1955; 33 COMP. GEN. 508; AND B 116077, SEPTEMBER 11, 1953, AFFIRMED OCTOBER 29, 1953.

SINCE THE SUBJECT LETTER BID DOES NOT MAKE ANY REFERENCE TO AMENDMENT NO. 1 WHICH GOES TO THE PRICE OF THE WORK, AND IS SO AMBIGUOUS AS TO LEAVE DOUBT AS TO WHAT IS INTENDED; ALSO SINCE THE MATTER AFFECTED BY THE AMENDMENT IS A FACTOR THAT COULD HAVE A BEARING UPON THE PRICE OF THE CONSTRUCTION, WE THEREFORE CONCLUDE THAT THE BID OF SUN CONSTRUCTION CORP. SHOULD BE DISREGARDED IN MAKING AWARD OF THE SUBJECT CONTRACT.