B-140342, AUG. 5, 1959

B-140342: Aug 5, 1959

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DEPARTMENT OF THE NTERIOR: REFERENCE IS MADE TO YOUR LETTER OF JULY 27. REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY MCLAUGHLIN CONSTRUCTION COMPANY TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO YOUR INVITATION FOR BIDS FOR GRADING AND DRAINAGE OF CAMPGROUND ROADS AND PARKING AREAS AT GRANT VILLAGE. THREE BIDS WERE SUBMITTED ON THE APPROXIMATE QUANTITIES OF 27 ITEMS OF WORK. THE GOVERNMENT ESTIMATE FOR THE WORK WAS IN THE AMOUNT OF $185. WHO WAS THE LOW BIDDER. IT IS STATED THAT ONE PERSON STARTED THE PREPARATION OF THE ESTIMATE BUT DID NOT FINISH IT ON ACCOUNT OF BEING CALLED AWAY ON BUSINESS. 232 TO A TABULATION SHEET AND THE DIRECT COSTS WERE SHOWN IN A COLUMN HEADED .

B-140342, AUG. 5, 1959

TO MR. LEMUEL A. GARRISON, SUPERINTENDENT, YELLOWSTONE NATIONAL PARK, DEPARTMENT OF THE NTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1959, FILE D22 391 MCL, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY MCLAUGHLIN CONSTRUCTION COMPANY TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO YOUR INVITATION FOR BIDS FOR GRADING AND DRAINAGE OF CAMPGROUND ROADS AND PARKING AREAS AT GRANT VILLAGE, YELLOWSTONE NATIONAL PARK, WYOMING.

IN RESPONSE TO THE INVITATION, THREE BIDS WERE SUBMITTED ON THE APPROXIMATE QUANTITIES OF 27 ITEMS OF WORK, OR IN THE TOTAL OF $105,543.50, $159,458, AND $193,734.50. THE GOVERNMENT ESTIMATE FOR THE WORK WAS IN THE AMOUNT OF $185,000. UPON THE OPENING OF BIDS ON JULY 16, 1959, A REPRESENTATIVE OF MCLAUGHLIN CONSTRUCTION COMPANY, WHO WAS THE LOW BIDDER, STATED THAT HE WOULD CHECK THE AMOUNTS BID FOR THE VARIOUS ITEMS. BY LETTER DATED JULY 20, 1959, THE LOW BIDDER SUBMITTED THE WORKSHEETS USED IN PREPARING ITS BID AND EXPLAINED HOW THE ALLEGED ERROR OCCURRED. IT IS STATED THAT ONE PERSON STARTED THE PREPARATION OF THE ESTIMATE BUT DID NOT FINISH IT ON ACCOUNT OF BEING CALLED AWAY ON BUSINESS. THE PERSON STARTING THE ESTIMATE SHEETS TRANSFERRED THE DIRECT COSTS OF $95,232 TO A TABULATION SHEET AND THE DIRECT COSTS WERE SHOWN IN A COLUMN HEADED ,INDIRECT JOB COSTS APPORTIONED" WHICH THE SECOND PARTY USED AS A BASIS FOR THE BID BY ADDING APPROXIMATELY 10 PERCENT FOR PROFIT TO THE AMOUNTS OF THE VARIOUS ITEMS. HOWEVER, THE AMOUNT OF $38,905 SHOWN ON A TABULATION SHEET AS INDIRECT COSTS HAD NOT BEEN ADDED TO THE AMOUNT OF $95,232 ITEMIZED ON THE DIRECT COST SHEET.

IT APPEARS THAT AWARD HAS NOT BEEN MADE IN THIS CASE. WE HAVE STATED ON NUMEROUS OCCASIONS THAT NO RELIEF MAY BE GRANTED FOR A UNILATERAL ERROR. HOWEVER, AN EXCEPTION TO THIS RULE EXISTS WHERE THE ERROR IS ALLEGED BEFORE AWARD AND THE BIDDER SUBMITS EVIDENCE WHICH SUPPORTS HIS CONTENTION AND AS TO WHICH THERE IS NO REASONABLE GROUND FOR DOUBT. UNDER SUCH CIRCUMSTANCES A BID CANNOT BE ACCEPTED IN GOOD FAITH SO AS TO CONSUMMATE A VALID AND BINDING CONTRACT. SEE 36 COMP. GEN. 441. THE EVIDENCE SUBMITTED IN THIS CASE MUST BE REGARDED AS ESTABLISHING THE FACT THAT AN ERROR WAS MADE IN THE BID AS ALLEGED. THERE IS SOME DOUBT, HOWEVER, AS TO THE AMOUNT THE BIDDER ACTUALLY INTENDED TO BID AND, IN SUCH CASES, IT HAS BEEN OUR POSITION THAT CORRECTION OF A BID SHOULD NOT BE ALLOWED.

ACCORDINGLY, YOU ARE ADVISED THAT THE BID OF MCLAUGHLIN CONSTRUCTION COMPANY SHOULD BE DISREGARDED IN MAKING AWARD.