B-141026, NOV. 18, 1959

B-141026: Nov 18, 1959

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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 9. FIVE BIDS WERE RECEIVED. WHICH WERE PUBLICLY OPENED SEPTEMBER 11. THE OTHER BASIC BIDS WERE $296. THE GOVERNMENT'S ESTIMATE WAS $249. CHAMBLESS WAS SOME $32. 000 LOWER THAN THE NEXT LOWEST BID AND WAS OUT OF LINE WITH THE OTHER BIDS. 300 WAS SHOWN ON THE WORKSHEET FOR THE REVOLVING DOORS BUT WAS NOT INCLUDED IN THE TOTAL BID PRICE. CONTENDING THAT IT IS UNFAIR TO THE OTHER BIDDERS AND TO THE CONSTRUCTION INDUSTRY AS A WHOLE TO PERMIT A BIDDER ON A CONSTRUCTION JOB TO INCREASE HIS BID BECAUSE OF A MISTAKE IN THE BID AND RECEIVE AN AWARD ON THE BASIS OF THE INCREASED BID. THE GEORGIA SOUTHERN CONSTRUCTION COMPANY IS JOINED IN THIS PROTEST BY THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA.

B-141026, NOV. 18, 1959

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 9, 1959, AND ENCLOSURES, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION, DEPARTMENT OF THE AIR FORCE, RELATIVE TO A PROTEST BY GEORGIA SOUTHERN CONSTRUCTION COMPANY AGAINST THE AWARD OF A CONTRACT ON THE BASIS OF A BID CORRECTED AFTER OPENING TO H. C. CHAMBLESS, UNDER INVITATION NO. 09-603-60-12, ISSUED BY THE WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE, GEORGIA.

THIS INVITATION SOLICITED BIDS FOR FURNISHING ALL LABOR, MATERIALS, AND EQUIPMENT AND FOR PERFORMING ALL WORK REQUIRED TO MODIFY A BUILDING AT THE BASE, IN ACCORDANCE WITH CERTAIN DRAWINGS AND SPECIFICATIONS. REQUESTED A BASIC BID FOR PERFORMING ALL WORK DESCRIBED AND THREE ALTERNATE BIDS WHICH ELIMINATED CERTAIN PORTIONS OF THE WORK.

FIVE BIDS WERE RECEIVED, WHICH WERE PUBLICLY OPENED SEPTEMBER 11, 1959. H. C. CHAMBLESS SUBMITTED THE LOWEST BASIC BID OF $263,812. THE OTHER BASIC BIDS WERE $296,545, $297,630, $302,131 AND $312,120, RESPECTIVELY. THE GOVERNMENT'S ESTIMATE WAS $249,693.

SINCE THE BID OF MR. CHAMBLESS WAS SOME $32,000 LOWER THAN THE NEXT LOWEST BID AND WAS OUT OF LINE WITH THE OTHER BIDS, THE CONTRACTING OFFICER REQUESTED A VERIFICATION OF THE LOW BID. BY LETTER OF SEPTEMBER 17, 1959, MR. CHAMBLESS ADVISED CONTRACTING OFFICER THAT HE HAD MADE A MISTAKE IN THE COMPUTATION OF HIS BID IN THAT HE HAD LEFT OUT OF HIS TOTAL BID PRICE AN ITEM OF COST FOR ALUMINUM REVOLVING DOORS IN THE AMOUNT OF $24,300. ON SEPTEMBER 18, 1959, THE BIDDER SUBMITTED WRITTEN EVIDENCE TO SUPPORT HIS ALLEGATION OF MISTAKE. THE EVIDENCE CONSISTED OF HIS OWN SWORN STATEMENT, A SINGLE WORKSHEET AND A QUOTATION FROM A SUPPLIER WHO OFFERED TO FURNISH THE DOORS FOR A PRICE OF $24,300. A PRICE OF $24,300 WAS SHOWN ON THE WORKSHEET FOR THE REVOLVING DOORS BUT WAS NOT INCLUDED IN THE TOTAL BID PRICE.

THE CONTRACTING OFFICER RECOMMENDED THAT THE BIDDER BE PERMITTED TO WITHDRAW HIS BID. THE STAFF JUDGE ADVOCATE, BY DECISION DATED SEPTEMBER 23, 1959, DETERMINED THAT CLEAR AND CONVINCING EVIDENCE HAD BEEN PRESENTED THAT H. C. CHAMBLESS MADE A BONA FIDE MISTAKE IN HIS BID; THAT CLEAR AND CONVINCING EVIDENCE HAD BEEN PRESENTED AS TO THE BID ACTUALLY INTENDED; AND, THAT H. C. CHAMBLESS SHOULD BE PERMITTED TO MODIFY THE BASIC BID TO $288,112 BY ADDING TO IT THE COST OF THE REVOLVING DOORS.

THE GEORGIA SOUTHERN CONSTRUCTION COMPANY, WHICH SUBMITTED THE SECOND LOWEST BID OF $296,545, PROTESTS THIS PROPOSED ACTION, CONTENDING THAT IT IS UNFAIR TO THE OTHER BIDDERS AND TO THE CONSTRUCTION INDUSTRY AS A WHOLE TO PERMIT A BIDDER ON A CONSTRUCTION JOB TO INCREASE HIS BID BECAUSE OF A MISTAKE IN THE BID AND RECEIVE AN AWARD ON THE BASIS OF THE INCREASED BID. THE GEORGIA SOUTHERN CONSTRUCTION COMPANY IS JOINED IN THIS PROTEST BY THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA.

THE STATUTES REQUIRING ADVERTISING FOR BIDS AND THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDERS ARE FOR THE BENEFIT OF THE UNITED STATES IN SECURING BOTH FREE COMPETITION AND THE LOWEST COMPETITIVE PRICES. WE HAVE CONSISTENTLY HELD THAT WHERE A MISTAKE IS ALLEGED PROMPTLY AFTER OPENING AND THERE HAS BEEN IMMEDIATELY PRESENTED CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, HOW IT OCCURRED, AND WHAT THE BID PRICE WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTERESTS OF THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED, IF SUCH CORRECTION WOULD NOT AFFECT THE RELATIVE STANDING OF OTHER BIDDERS. B-123562, MAY 10, 1955. IN SUCH A CASE WE DO NOT FEEL THAT A HIGHER BIDDER HAS ANY RIGHT TO INSIST UPON REJECTION OF A CLEARLY ESTABLISHED LOWER BID, TO THE DETRIMENT OF THE GOVERNMENT.

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO DOUBT THAT MR. CHAMBLESS IN COMPUTING HIS BID PRICE FAILED TO INCLUDE THE COST OF THE REVOLVING DOORS. ACCORDINGLY, SINCE THE ERROR WAS ALLEGED AND EXPLAINED BY MR. CHAMBLESS, AND THE INTENDED BID PRICE FULLY ESTABLISHED, THE BID OF H. G. CHAMBLESS MAY BE CORRECTED TO SHOW THE PRICE AS $288,112, AND AS SO CORRECTED MAY BE CONSIDERED IN MAKING THE AWARD.

IN THE EVENT OF AWARD TO H. C. CHAMBLESS, A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE CONTRACT.