B-135967, MAY 21, 1958

B-135967, MAY 21, 1958

TO MR. D. J. O-NEIL, DIRECTOR, UNITED STATES ATOMIC ENERGY COMMISSION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 25, 1958, FILE ECO:LFP:JMD, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY CRONIN, MERCER AND CRUST, A PARTNERSHIP, TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. AT/45-1/-1265.

THE INVITATION REQUESTED BIDS TO BE OPENED ON APRIL 9, 1958, FOR THE CONSTRUCTION OF BUILDING ADDITIONS AND ALTERATIONS OF EXISTING CONSTRUCTION INCLUDING RELATED MECHANICAL AND ELECTRICAL WORK IN THE 100- B, -D AND -F AREAS, HANFORD WORKS, RICHLAND, WASHINGTON. THE INVITATION CONSISTED OF TWO ITEMS AND BIDDERS WERE REQUESTED TO QUOTE LUMP SUM PRICES FOR EACH AS FOLLOWS:

1. BASIC BID: ALL CONTRACT WORK--- INCLUDING 20 TABLE UNITS.

2. ALTERNATE BID: ALL CONTRACT WORK--- EXCLUDING 20 TABLE UNITS.

YOU REPORT THAT AT THE OPENING OF THE BIDS, UPON READING THE NAME OF THE SEVENTH BIDDER AND PRIOR TO READING THE AMOUNT OF THE BID OF CRONIN, MERCER AND CRUST, MR. EUGENE V. CRONIN PUBLICLY ANNOUNCED THAT HIS BID WAS IN ERROR; THAT HE HAD BID THE TABLES SEPARATELY; THAT WHEN THE BID WAS READ MR. CRONIN ANNOUNCED THAT THE BASIC BID FIGURE ($51,762.34) DID NOT INCLUDE THE TABLES; AND THAT TO ARRIVE AT HIS INTENDED BASIC BID IT WOULD BE NECESSARY TO ADD THE $7,956.20 SHOWN AS THE ALTERNATE BID TO THE BASIC BID. THIS WOULD RESULT IN A BASIC BID OF $59,718.54 AND AN ALTERNATE BID OF $51,762.34.

THE BIDDER WAS ADVISED TO SUBMIT HIS WORKSHEETS AND ANY OTHER SUPPORTING PAPERS IN SUPPORT OF HIS ALLEGED ERROR. BY LETTER DATED APRIL 12, 1958, THE BIDDER SUBMITTED CERTAIN WORKSHEETS AND EXPLAINED THAT HE HAD MISINTERPRETED THE REQUIREMENTS FOR BIDDING. THE BIDDER FURTHER STATED THAT HE HAD CERTAIN DIFFICULTIES IN OBTAINING A BID BOND AND THAT THE REPRESENTATIVE OF THE BONDING COMPANY WAS IN HIS OFFICE A SHORT TIME BEFORE THE BID OPENING AND THAT THE REPRESENTATIVE OF THE BONDING COMPANY HAD ACTUALLY TYPED THE BID PRICES ON THE BID FORM FROM AN ADDING MACHINE TAPE WHICH THE BIDDER GAVE HIM. IN THIS CONNECTION THE BIDDER'S ALLEGATION IS SUPPORTED BY LETTER DATED APRIL 15, 1958, FROM THE JEROME P. LEWIS COMPANY, SIGNED BY JOHN P. JEROME WHO IS THE SAME PERSON WHO SIGNED THE BID BOND ON BEHALF OF THE UNITED PACIFIC INSURANCE COMPANY. IT WOULD APPEAR FROM THE PAPERS SUBMITTED BY THE BIDDER THAT THE PRICE OF $51,762.34 QUOTED FOR THE BASIC BID WAS ACTUALLY THE AMOUNT INTENDED FOR THE ALTERNATE BID WHICH DOES NOT INCLUDE THE 20 TABLE UNITS AND THAT THE INTENDED BASIC BID INCLUDING THE TABLES WAS $59,718.54 ($51,762.34 PLUS $7,956.20).

IT IS STATED THAT YOU HAVE NO REASON TO DISPUTE ANY OF THE FIGURES CONTAINED IN THE PAPERS SUBMITTED BY THE BIDDER AND THAT YOU DO NOT WISH TO DENY THAT AN ERROR WAS MADE IN THE BID AS ALLEGED. HOWEVER, IT IS STATED THAT ANY ERROR MADE BY THE BIDDER IS UNILATERAL, DUE TO CARELESSNESS IN THE PREPARATION OF THE BID AND IN DISREGARD OF THE LANGUAGE OF THE TWO BID ITEMS. VARIOUS THINGS ARE POINTED OUT CONCERNING WHAT THE BIDDER COULD HAVE CLAIMED IF HE HAD SO DESIRED, FOR INSTANCE, THAT HE COULD HAVE ALLEGED THAT A "4" WAS OMITTED FROM THE FIGURE SHOWN FOR THE ALTERNATE BID WHICH WOULD ALLOW HIS BASIC BID TO STAND AND MAKE HIS ALTERNATE BID $47,956.20. IN VIEW THEREOF AND IN THE INTEREST OF PROTECTING THE CAREFUL BIDDER, TO DISCOURAGE CARELESS BIDDING AND TO ELIMINATE THE OPPORTUNITY OF BIDDERS TO INTENTIONALLY CLOUD THE BIDDING TO OBTAIN A SECOND GUESS, IT IS RECOMMENDED THAT AWARD BE MADE TO CRONIN, MERCER AND CRUST ON THEIR LOW BID OF $51,762.34 FOR THE BASIC ITEM.

THE INVITATION FOR BIDS APPEARS TO BE CLEAR AND UNAMBIGUOUS AS TO WHAT WAS INTENDED TO BE COVERED BY THE BASIC AND ALTERNATE BIDS. THEREFORE, THE BIDDER'S FAILURE TO QUOTE PROPERLY WAS DUE ENTIRELY TO HIS OWN FAULT, BE IT CARELESSNESS, MISUNDERSTANDING OR OVERSIGHT. HOWEVER, THE FACT REMAINS THAT THE BID IS PATENTLY ERRONEOUS ON ITS FACE, ESPECIALLY AS TO THE AMOUNT OF THE ALTERNATE BID, WHICH IS ONLY IN THE AMOUNT OF $7,956.20, WHEREAS THE EIGHT OTHER BIDS RECEIVED RANGE FROM $46,350 TO $52,538.

THE RULE THAT NO RELIEF MAY BE GRANTED FOR A UNILATERAL ERROR IS NOT FOR APPLICATION HERE SINCE THE ERROR WAS ALLEGED PRIOR TO AWARD. THE BIDDER ALLEGED ERROR PRIOR TO AWARD AND SUBMITTED EVIDENCE WHICH SUPPORTS HIS CONTENTION AND AS TO WHICH THERE IS NO REASONABLE GROUND FOR DOUBT. FURTHERMORE, THE BIDDER'S CONTENTION IS SUPPORTED BY A THIRD PARTY. UNDER SUCH CIRCUMSTANCES THE BID COULD NOT BE ACCEPTED IN GOOD FAITH SO AS TO CONSUMMATE A VALID AND BINDING CONTRACT. SEE 17 COMP. GEN. 575; 36 ID. 441.

ACCORDINGLY, YOU ARE ADVISED THAT THE BID OF CRONIN, MERCER AND CRUST SHOULD BE DISREGARDED IN MAKING THE AWARD.