B-141383, JAN. 14, 1960

B-141383: Jan 14, 1960

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ESQUIRES: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2. ONE OF THE BASES FOR YOUR PROTEST IS THAT SINCAVAGE AND WOOD OBVIOUSLY MADE AN ERROR IN THE THREE PRICES QUOTED ON THE THREE ALTERNATE ITEMS AND THAT THEREFORE THE BID MUST BE DISREGARDED. THE SECOND BASIS FOR YOUR PROTEST IS THAT THAT CONCERN FAILED TO ACKNOWLEDGE ADDENDUM NO. 1 WHICH INCORPORATED CHANGES IN THE REQUIRED MINIMUM WAGE RATE. 059 (THE CORRECT BID AS TO THIS ITEM WAS $859). YOU THUS CONTEND THAT THE QUOTATION OF A PRICE ON NO. 1 WHICH WAS 3 TO 14 TIMES AS GREAT AS THE OTHER ALTERNATES INDICATES AN ERROR. THAT IS. YOU INSIST THAT SUCH AN ACKNOWLEDGMENT WAS A REQUIREMENT OF THE BID INVITATION. WE HAVE RECEIVED A REPORT FROM THE DEPARTMENT OF THE NAVY IN THIS CASE WHICH SHOWS UPON OPENING OF THE BIDS ON OCTOBER 29.

B-141383, JAN. 14, 1960

TO STEPTOE AND JOHNSON, ESQUIRES:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 2, 1959, SUBMITTING ON BEHALF OF THE NICHOLSON ENGINEERING COMPANY, INC., A PROTEST AGAINST THE AWARD OF A CONTRACT TO SINCAVAGE AND WOOD UNDER INVITATION FOR BIDS NO. NBY-19291 FOR THE PROJECT ENTITLED "BUILDING NO. 9, COMFORT STATION" AT THE U.S. NAVAL ORDNANCE LABORATORY, WHITE OAK, SILVER SPRING, MARYLAND. ALSO, THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 11, 1959, RELATING TO THE MATTER.

ONE OF THE BASES FOR YOUR PROTEST IS THAT SINCAVAGE AND WOOD OBVIOUSLY MADE AN ERROR IN THE THREE PRICES QUOTED ON THE THREE ALTERNATE ITEMS AND THAT THEREFORE THE BID MUST BE DISREGARDED. THE SECOND BASIS FOR YOUR PROTEST IS THAT THAT CONCERN FAILED TO ACKNOWLEDGE ADDENDUM NO. 1 WHICH INCORPORATED CHANGES IN THE REQUIRED MINIMUM WAGE RATE. YOU STATED THAT SINCAVAGE AND WOOD SUBMITTED PRICES ON THE THREE ALTERNATES AS FOLLOWS:NO. 1--- $23,477, NO. 2--- $1,758, AND NO. 3--- $8,059 (THE CORRECT BID AS TO THIS ITEM WAS $859); THAT THE INVITATION REQUIRED BIDS ON THREE ALTERNATE BASES, AND THAT ALTERNATES NOS. 2 AND 3 CALLED FOR ALL OF THE WORK AND MATERIAL FOR THE FIRST ALTERNATE PLUS SPECIFIED EXTRAS. YOU THUS CONTEND THAT THE QUOTATION OF A PRICE ON NO. 1 WHICH WAS 3 TO 14 TIMES AS GREAT AS THE OTHER ALTERNATES INDICATES AN ERROR, AND YOU CITED OUR DECISION OF JULY 20, 1955, B-123339, 35 COMP. GEN. 33, 37-38, AS CONTROLLING IN THE MATTER.

RESPECTING THE SECOND BASIS FOR YOUR PROTEST, THAT IS, THE FAILURE OF SINCAVAGE AND WOOD TO ACKNOWLEDGE ADDENDUM NO. 1, YOU INSIST THAT SUCH AN ACKNOWLEDGMENT WAS A REQUIREMENT OF THE BID INVITATION, REFERENCE BEING MADE TO PARAGRAPH 17.5 OF THE BIDDING DOCUMENT, SPECIFICATION NO. 19291/59, AND TO CERTAIN DECISIONS OF OUR OFFICE. FOR THE REASONS SET FORTH IN YOUR LETTER YOU EXPRESSED THE VIEW THAT THE BID OF SINCAVAGE AND WOOD MUST BE REJECTED AS NONRESPONSIVE.

WE HAVE RECEIVED A REPORT FROM THE DEPARTMENT OF THE NAVY IN THIS CASE WHICH SHOWS UPON OPENING OF THE BIDS ON OCTOBER 29, 1959, IT WAS FOUND THAT THE APPARENT LOW BIDDER, SINCAVAGE AND WOOD, HAD FAILED TO ACKNOWLEDGE ADDENDUM NO. 1 TO THE SPECIFICATIONS WHICH MADE TWO CHANGES IN WAGE RATES BEARING ON THE SUBJECT CONTRACT. BY THE ADDENDUM THE RATE FOR CEMENT MASON MACHINE OPERATORS WAS DECREASED BY $0.025 PER HOUR AND THE RATE FOR GLAZERS WAS INCREASED BY $0.17 PER HOUR. THE DEPARTMENT OF THE NAVY ESTIMATED THAT EACH OF THESE TRADES WOULD HAVE A TOTAL OF EIGHT MAN HOURS OF WORK ON THIS CONTRACT AND THAT THE SAVINGS ON CEMENT MASON MACHINE OPERATORS WOULD BE $0.20, AND THE EXTRA COST FOR GLAZERS WOULD BE $1.36, OR A NET ADDITIONAL COST OF $1.16 TO THE CONTRACTOR. THIS CALCULATION PRESUPPOSES THAT THE BIDDERS EXPECTED TO PAY NO MORE THAN THE MINIMUM WAGES SPECIFIED.

BY LETTER OF NOVEMBER 17, 1959, SINCAVAGE AND WOOD ADVISED THE DEPARTMENT OF THE NAVY THAT THEIR FAILURE TO ACKNOWLEDGE ADDENDUM NO. 1 WAS DUE TO CLERICAL ERROR AND THAT THEY INTENDED TO ACCOMPLISH ALL APPLICABLE WORK AT THE WAGE RATES SPECIFIED BY ADDENDUM NO. 1. PARAGRAPH 17.5 OF THE BIDDING DOCUMENT PROVIDES THAT---

"* * * EACH BIDDER SHALL REFER IN HIS BID TO ALL ADDENDA TO THIS SPECIFICATION; FAILURE TO DO SO MAY CONSTITUTE AN INFORMALITY IN THE BID. ALSO, SEE PARAGRAPH OF STANDARD FORM 22, INSTRUCTIONS TO BIDDERS.'

STANDARD FORM 22, INCORPORATED INTO THE INVITATION BY REFERENCE,PROVIDED THAT "THE UNITED STATES, HOWEVER, RESERVES THE RIGHT * * * TO WAIVE ANY INFORMALITY IN BIDS RECEIVED WHENEVER SUCH * * * WAIVER IS IN THE INTERESTS OF THE UNITED STATES.' IT WAS HELD IN OUR DECISION OF APRIL 22, 1954, B-119732, 33 COMP. GEN. 508, CITED BY YOU, THAT THE FAILURE OF A BIDDER TO CERTIFY THAT HE HAD RECEIVED ALL ADDENDA AS REQUIRED BY THE INVITATION COULD NOT BE WAIVED AS AN INFORMAL DEVIATION IF THE ADDENDA INVOLVED AFFECTED PRICE, QUANTITY, OR QUALITY OF THE WORK. ADDENDUM NO. 1 WOULD AFFECT THE PRICE OF CERTAIN LABOR COSTS, ONLY IF SINCAVAGE AND WOOD INTENDED TO PAY NO MORE THAN THE REQUIRED MINIMUM WAGES. FURTHERMORE, THE AMOUNT INVOLVED--- ESTIMATED BY THE DEPARTMENT OF THE NAVY TO AMOUNT TO THE SUM OF $1.16- - IS TOO TRIVIAL AS A PRACTICAL MATTER WHEN COMPARED WITH THE TOTAL COST OF THE WORK TO JUSTIFY REJECTION OF THE BID. SINCAVAGE AND WOOD HAVE INDICATED THEIR INTENTION TO PAY THE WAGE RATES SPECIFIED BY ADDENDUM NO. 1 AND THE BUREAU OF YARDS AND DOCKS ADVISES OF ITS INTENTION TO MAKE AN AWARD ON BID ITEM 1. THE AWARDING OF A CONTRACT TO THAT CONCERN UNDER THE CIRCUMSTANCES WOULD NOT WORK AN INJUSTICE TO YOUR CLIENT SINCE ITS BID WAS CONSIDERABLY IN EXCESS OF THE LOW BID.

WITH RESPECT TO YOUR STATEMENT THAT SINCAVAGE AND WOOD OBVIOUSLY MADE AN ERROR IN SUBMITTING ITS BID, IT IS OUR VIEW THAT, TAKING INTO CONSIDERATION THE FACT THAT BID ITEMS 2 AND 3 COVERED THE ENTIRE WORK PLUS CERTAIN EXTRAS, IT IS REASONABLE TO ASSUME THAT THE ITEMS OF $1,758 AND $859 WERE PLAINLY INTENDED TO BE ADDITIONS TO BID ITEM 1. THE LOW BIDDER SO ADVISED THE DEPARTMENT OF THE NAVY. IT APPEARS THAT THIS IRREGULARITY WOULD NOT, IN ANY EVENT, BE INVOLVED IN AN AWARD ON BID ITEM 1 AS IS PROPOSED.

UPON THE BASIS OF THE FACTS IN THIS CASE WE FEEL THERE IS NO ACTION WHICH WE MAY PROPERLY TAKE IN THIS MATTER.