B-140989, OCT. 27, 1959

B-140989, OCT. 27, 1959

TO MR. JAMES B. MYERS, SUPERINTENDENT, GETTYSBURG NATIONAL MILITARY PARK:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13, 1959, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY HIRSCH, ARKIN, PINEHERST, INC., TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO AN INVITATION FOR BIDS TO FURNISH ALL LABOR, EQUIPMENT, AND MATERIALS, AND PERFORM ALL WORK FOR THE PLUMBING OF THE VISITORS CENTER-CYCLORAMA BUILDING TO BE CONSTRUCTED IN THE GETTYSBURG NATIONAL MILITARY PARK.

THE RECORD INDICATES THAT AT THE BID OPENING AT 3 P.M. ON SEPTEMBER 29, 1959, IT WAS FOUND THAT THE BID OF HIRSCH, ARKIN, PINEHERST, INC., AT THE PRICE OF $29,038, WAS THE LOWEST OF THE NINE BIDS RECEIVED IN RESPONSE TO THE INVITATION. WITH YOUR LETTER THERE WAS ENCLOSED A LETTER DATED OCTOBER 2, 1959, FROM HIRSCH, ARKIN, PINEHERST, INC., IN WHICH IT IS ALLEGED THAT THROUGH ERROR IT HAD OMITTED AN ITEM OF $2,750 FOR MATERIALS IN ARRIVING AT THE TOTAL AMOUNT OF ITS BID, THERE BEING TRANSMITTED THEREWITH COPIES OF THE FIRM'S WORKSHEETS.

YOU REQUEST A RULING BY OUR OFFICE AS TO WHETHER THE AMOUNT OF THE ALLEGED ERROR--- $2,750--- MAY BE ADDED TO THE BID OF $29,038 SUBMITTED BY HIRSCH, ARKIN, PINEHERST, INC., AND AWARD OF A CONTRACT MADE TO THAT CONCERN AT A TOTAL FIGURE OF $31,788. YOU ASK ALSO THAT, IF THIS MAY NOT BE DONE, WHETHER THE LOW BIDDER, UPON REQUEST, MAY BE ALLOWED TO WITHDRAW ITS BID ON THE BASIS OF THE INDICATED ERROR. YOU THEN STATE THAT IF HIRSCH, ARKIN, PINEHERST, INC., ASKS TO WITHDRAW ITS LOW BID ON THE BASIS OF THE ALLEGED ERROR, AND IS ALLOWED TO DO SO, THE CONTRACT WILL BE AWARDED TO THE NEXT LOWEST BIDDER--- LEWIS MECHANICAL CONTRACTORS, INC.--- AT A COST OF $36,400. IN THAT CONNECTION, YOU POINT OUT THAT A SAVING TO THE UNITED STATES OF $4,612 WILL RESULT IF THE CONTRACT IS AWARDED TO HIRSCH, ARKIN, PINEHERST, INC., AT THE PRICE OF $31,788 ($29,038 PLUS $2,750), RATHER THAN TO LEWIS MECHANICAL CONTRACTORS, INC., SECOND LOW BIDDER, AT THE PRICE OF $36,400.

WITHOUT CONSIDERING HEREIN IN DETAIL THE FACTS RELATING TO THE ALLEGED ERROR, IT SEEMS SUFFICIENT TO SAY WE ARE CONVINCED THAT HIRSCH, ARKIN, PINEHERST, INC., MADE AN ERROR IN ITS BID, AS ALLEGED; ALSO, IT HAS SUBMITTED SATISFACTORY EVIDENCE AS TO WHAT THE AMOUNT OF ITS BID WOULD HAVE BEEN EXCEPT FOR THE ERROR.

WE HAVE HERETOFORE HAD OCCASION TO CONSIDER CERTAIN CASES WHEREIN A MISTAKE WAS ALLEGED PROMPTLY AFTER OPENING OF BIDS BUT BEFORE AWARD OF THE CONTRACT, AND WHERE THERE HAD BEEN A TIMELY PRESENTATION OF CONVINCING EVIDENCE THAT A MISTAKE HAD BEEN MADE, ITS NATURE, HOW IT OCCURRED AND WHAT THE BID PRICE WOULD HAVE BEEN EXCEPT FOR THE MISTAKE. IN SUCH CASE WE HAVE PERMITTED THE BID TO BE CORRECTED IN ORDER THAT THE GOVERNMENT MAY HAVE THE BENEFIT OF THE LOWER PRICE. TO ALLOW CORRECTION UNDER SUCH CIRCUMSTANCES IS IN LINE WITH THE DECISIONS OF THE COURTS WHICH HAVE ALLOWED ADDITIONAL COMPENSATION TO A LOW BID CONTRACTOR WHO, ALTHOUGH REFUSED PERMISSION ADMINISTRATIVELY TO CORRECT HIS BID, HAS BEEN ABLE TO PRESENT SATISFACTORY PROOF THAT HIS BID WAS ERRONEOUS, TOGETHER WITH A CLEAR SHOWING AS TO WHAT HE INTENDED TO BID. EDMUND J. RAPPOLI COMPANY V. UNITED STATES, 98 C.CLS. 499. IT MAY BE ADDED THAT TO ALLOW CORRECTION OF THE BID IN THIS CASE IS NOT IN VIOLATION OF ANY LEGAL REQUIREMENT THAT BIDS BE CONSIDERED ON A COMPETITIVE BASIS. SINCE THE BID, AS CORRECTED, WILL BE SUBSTANTIALLY LOWER THAN THAT OF THE NEXT LOWEST BIDDER, IT FOLLOWS THAT NONE OF THE OTHER BIDDERS WILL BE PREJUDICED BY SUCH ACTION.

YOU ARE ADVISED THAT THE BID OF HIRSCH, ARKIN, PINEHERST, INC., AS CORRECTED, MAY BE CONSIDERED FOR AWARD. IN VIEW OF THIS HOLDING, THE ADDITIONAL MATTERS SET FORTH IN YOUR LETTER NEED NO REPLY.