B-141777, FEB. 4, 1960

B-141777: Feb 4, 1960

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BIDS WERE OPENED ON JANUARY 12. WHICH APPEARS TO HAVE BEEN CORRECTED TO $21. THE SECOND LOW BID WAS IN THE AMOUNT OF $32. THE ENGINEER'S ESTIMATE WAS IN THE AMOUNT OF $21. HIS UNIT PRICE ON ITEM NO. 1 WOULD HAVE BEEN INCREASED FROM $0.40 TO $0.65 PER CUBIC YARD. WE BELIEVE THE EVIDENCE IS SUFFICIENT TO ESTABLISH THAT AN ERROR WAS MADE IN MR. THE ALLEGATION THAT HE DID NOT PROVIDE FOR DRILLING AND BLASTING IN HIS BID PRICE APPEARS TO BE SUPPORTED BY THE FIFTH WORKSHEET WHICH SHOWS THAT NO ALLOWANCE WAS MADE THEREFOR IN COMPUTING HIS UNIT PRICE ON ITEM NO. 1. THERE SEEMS NO REASON TO DOUBT THE BIDDER'S STATEMENT THAT SOME ADDITIONAL AMOUNT WOULD HAVE BEEN ADDED TO THE BID PRICE FOR DRILLING AND BLASTING IF THE WORKSHEET ON WHICH HIS SUPERINTENDENT ESTIMATED SUCH COSTS HAD BEEN BEFORE MR.

B-141777, FEB. 4, 1960

TO MR. L. V. DOWNS, ACTING PROJECT MANAGER, DEPARTMENT OF THE INTERIOR:

YOUR LETTER DATED JANUARY 20, 1960, FILE 225, FORWARDED A BID SUBMITTED BY JOHN N. KELTCH FOR THE CONSTRUCTION OF ABOUT 2.5 MILES OF OPEN DRAINS UNDER SPECIFICATIONS NO. 117C-577, TOGETHER WITH CERTAIN WORKSHEETS SUBMITTED BY THE BIDDER IN SUPPORT OF AN ALLEGED ERROR IN THE BID PRICE, AND REQUESTED OUR ADVICE AS TO THE ACTION WHICH SHOULD BE TAKEN.

AS INDICATED BY YOUR LETTER, BIDS WERE OPENED ON JANUARY 12, 1960, THE LOWEST BEING SUBMITTED BY JOHN M. KELTCH IN THE AMOUNT OF $21,064, WHICH APPEARS TO HAVE BEEN CORRECTED TO $21,089 BY YOUR OFFICE UPON DISCOVERY OF A MATHEMATICAL ERROR OF $25.00. THE SECOND LOW BID WAS IN THE AMOUNT OF $32,535.30, AND THE THIRD LOW BID IN THE AMOUNT OF $35,882.60. THE ENGINEER'S ESTIMATE WAS IN THE AMOUNT OF $21,310 BUT NO PROVISION HAD BEEN MADE THEREIN FOR DRILLING AND BLASTING. UPON BEING ADVISED OF THE AMOUNTS OF THE ENGINEER'S ESTIMATE AND THE SECOND AND THIRD LOW BIDS, MR. KELTCH STATED THAT HIS BID MUST BE IN ERROR. THE FOLLOWING DAY HE SUBMITTED FOUR WORKSHEETS, TOGETHER WITH AN AFFIDAVIT TO THE EFFECT THAT SUCH WORKSHEETS HAD BEEN COMPILED BY HIS SUPERINTENDENT AFTER VISITING THE SITE OF THE WORK, BUT THAT HIS SUPERINTENDENT, WHEN MAILING SUCH WORKSHEETS TO MR. KELTCH, HAD INADVERTENTLY OMITTED ONE WHICH ESTIMATED THE COST OF DRILLING AND BLASTING AT $7,590. MR. KELTCH FURTHER ALLEGES THAT, HAD SUCH INFORMATION BEEN AVAILABLE TO HIM AT THE TIME HE PREPARED HIS BID, HIS UNIT PRICE ON ITEM NO. 1 WOULD HAVE BEEN INCREASED FROM $0.40 TO $0.65 PER CUBIC YARD. HE THEREFORE REQUESTS THAT HIS BID PRICE BE INCREASED IN THE AMOUNT OF $7,500, REPRESENTING AN INCREASE OF $0.25 PER UNIT ON THE 30,000 CUBIC YARDS OF EXCAVATION UNDER ITEM NO. 1.

WE BELIEVE THE EVIDENCE IS SUFFICIENT TO ESTABLISH THAT AN ERROR WAS MADE IN MR. KELTCH'S BID AS ALLEGED. THE ALLEGATION THAT HE DID NOT PROVIDE FOR DRILLING AND BLASTING IN HIS BID PRICE APPEARS TO BE SUPPORTED BY THE FIFTH WORKSHEET WHICH SHOWS THAT NO ALLOWANCE WAS MADE THEREFOR IN COMPUTING HIS UNIT PRICE ON ITEM NO. 1, AND THERE SEEMS NO REASON TO DOUBT THE BIDDER'S STATEMENT THAT SOME ADDITIONAL AMOUNT WOULD HAVE BEEN ADDED TO THE BID PRICE FOR DRILLING AND BLASTING IF THE WORKSHEET ON WHICH HIS SUPERINTENDENT ESTIMATED SUCH COSTS HAD BEEN BEFORE MR. KELTCH WHEN HE PREPARED THE BID. SINCE THE ERROR WAS ALLEGED AND PROVED PRIOR TO AWARD, THE BIDDER CANNOT BE COMPELLED TO PERFORM AT THE ERRONEOUS BID PRICE. MASON COAL COMPANY V. UNITED STATES, 64 C.CLS. 526; SALIGMAN V. UNITED STATES, 56 F.SUPP. 505.

YOU STATE THAT ALL BIDS, INCLUDING MR. KELTCH'S BID IF CORRECTED, ARE CONSIDERED EXCESSIVE AND THAT YOU PLAN TO REJECT ALL BIDS AND READVERTISE, IF MR. KELTCH'S UNCORRECTED BID CANNOT BE ACCEPTED. IT IS THEREFORE UNNECESSARY TO DISCUSS IN DETAIL THE QUESTION OF CORRECTION. WE MAY SAY, HOWEVER, THAT THE EVIDENCE PRESENTED DOES NOT CONCLUSIVELY ESTABLISH THE AMOUNT WHICH MR. KELTCH WOULD HAVE BID BUT FOR THE ERROR, AND A BID MAY NOT BE CORRECTED IN THE ABSENCE OF SUCH EVIDENCE. 35 COMP. GEN. 279.

A COPY OF THIS LETTER IS BEING FORWARDED TO THE COMMISSIONER OF RECLAMATION.