B-142047, MAR. 2, 1960

B-142047, MAR. 2, 1960

TO MR. F. G. JENNINGS, CONTRACTING OFFICER, FEDERAL AVIATION AGENCY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 15, 1960, REQUESTING A DECISION AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO THE CORRECTION OF AN ERROR ALLEGED BY ST. FRANCIS ELECTRIC SERVICE TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO PROPOSAL NO. 4-60-1522.

THE RECORD SHOWS THAT PROPOSAL NO. 4-60-1522 WAS ISSUED JANUARY 19, 1960, BY THE FEDERAL AVIATION AGENCY, LOS ANGELES, CALIFORNIA, FOR THE CONSTRUCTION OF A COMPLETE CONFIGURATION "A" APPROACH LIGHT SYSTEM, A SEQUENCED FLASHING SYSTEM, AND THE RELOCATION OF THE MIDDLE MARKER FACILITY AT THE SAN FRANCISCO INTERNATIONAL AIRPORT, SAN FRANCISCO, CALIFORNIA. THE PROPOSAL CONTAINED TWO SCHEDULES, EACH CONSISTING OF NUMBERED ITEMS WHICH REFERRED TO A DESCRIPTION OF THE WORK TO BE PERFORMED. THE ACTUAL DESCRIPTION OF THE WORK TO BE PERFORMED WAS TO BE FOUND IN THE GENERAL SPECIFICATIONS, PROJECT SPECIFICATIONS, CAA SPECIFICATIONS, AND THE GENERAL AND PROJECT DRAWINGS.

BIDS WERE OPENED ON FEBRUARY 11, 1960. OF TEN BIDS RECEIVED, THE LOW BID WAS SUBMITTED BY ST. FRANCIS ELECTRIC SERVICE, WHICH QUOTED A PRICE OF $31,968.20 FOR SCHEDULE I AND $4,365 FOR SCHEDULE II, FOR A TOTAL BID OF $36,333.20. THE OTHER NINE BIDS RECEIVED RANGED IN TOTAL AMOUNT FROM $47,266 TO $70,078.33. ST. FRANCIS ELECTRIC SERVICE WAS LOW BIDDER ON EACH OF THE TWO SCHEDULES AS WELL AS FOR TOTAL BID. THE GOVERNMENT ESTIMATE OF THE COST OF THE WORK WAS $49,001 FOR SCHEDULE I AND $6,285 FOR SCHEDULE II, OR A TOTAL OF $55,286.

IT IS REPORTED THAT ON THE MORNING OF FEBRUARY 12, 1960, A REPRESENTATIVE OF THE ST. FRANCIS ELECTRIC SERVICE CALLED THE CONTRACTING OFFICER AND STATED THAT IT HAD MADE AN ERROR IN ITS BID. HE WAS TOLD TO SUBMIT THE FACTS SURROUNDING THE ALLEGED ERROR AND TO FURNISH ORIGINAL WORKSHEETS IN SUPPORT THEREOF. BY LETTER PERSONALLY PRESENTED TO THE CONTRACTING OFFICE ON FEBRUARY 12, 1960, THE LOW BIDDER ADVISED THAT AN ERROR WAS MADE IN COMPUTING THE COST OF LABOR IN CONNECTION WITH ITEMS 2.1.6E, 2.1.6F, AND 3.3B OF SCHEDULE I, AND ITEM 2.2B OF SCHEDULE II, IN THAT THE LABOR UNITS, WHICH WERE ESTIMATED IN HOURS BASED ON THE NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION, C., MANUAL OF LABOR UNITS AS BEING NECESSARY TO PERFORM THE REQUIRED WORK, HAD NOT BEEN CONVERTED TO DOLLARS. THE LOW BIDDER ALLEGES THAT IN ITS RECAPITULATION LABOR UNITS SHOULD HAVE BEEN INTO DOLLARS BY MULTIPLYING THE LABOR UNITS BY ITS CURRENT LABOR COST OF $5.20 PER HOUR. THE REQUESTED REVISIONS ON EACH OF THE ITEMS IN QUESTION AMOUNT TO A TOTAL INCREASE OF $4,878.90. WORKSHEETS WERE FURNISHED WITH THE LETTER. ON THE BASIS OF THE EVIDENCE SUBMITTED, IT WAS ADMINISTRATIVELY DETERMINED THAT THE LOW BIDDER DID NOT CLEARLY SHOW ITS INTENDED BID.

AFTER CONSIDERATION OF THE ENTIRE RECORD, IT IS OUR VIEW THAT THE ALLEGATION OF ERROR PRIOR TO AWARD, SUPPORTED BY THE BIDDER'S WORKSHEETS, AND THE DIFFERENCE BETWEEN ITS BID AND THE OTHER BIDS RECEIVED, FURNISHES REASONABLE PROOF THAT A MISTAKE WAS MADE. UNDER THESE CIRCUMSTANCES, WITHDRAWAL OF THE BID IN QUESTION WOULD BE JUSTIFIED. SEE 17 COMP. GEN. 575. HOWEVER, THE PROOF REQUIRED TO JUSTIFY WITHDRAWAL OF A BID BEFORE AWARD IS IN NO WAY COMPARABLE TO THAT NECESSARY TO ALLOW CORRECTION OF AN ERRONEOUS BID. 36 COMP. GEN. 441. IN THE LATTER INSTANCES, THE EVIDENCE OF ERROR MUST CONCLUSIVELY ESTABLISH WHAT THE INTENDED BID SHOULD HAVE BEEN. 35 COMP. GEN. 279. THE EVIDENCE SUBMITTED HERE MERELY INDICATES THAT THE LOW BIDDER MADE AN ERROR IN THE COMPUTATION OF ITS BID. IT DOES NOT CONCLUSIVELY ESTABLISH BY COMPETENT EVIDENCE WHAT THE AMOUNT OF THE BID WOULD HAVE BEEN BUT FOR THE ERROR.

ACCORDINGLY, THE BID OF ST. FRANCIS ELECTRIC SERVICE MAY NOT BE CORRECTED. HOWEVER, SINCE THE ERROR IN BID WAS ALLEGED AND SUFFICIENTLY ESTABLISHED PRIOR TO AWARD, THE BID OF ST. FRANCIS ELECTRIC SERVICE SHOULD BE DISREGARDED AND AWARD MAY BE MADE TO THE OTHERWISE LOW RESPONSIBLE BIDDER.