B-142382, APR. 19, 1960

B-142382: Apr 19, 1960

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INC.: REFERENCE IS MADE TO LETTER OF MARCH 24. IT IS THE CONTENTION OF YOUR ATTORNEY THAT SINCE THE LOW BIDDER FAILED TO QUOTE A PRICE FOR THE WORK CALLED FOR UNDER A SECOND ITEM IDENTIFIED IN THE INVITATION AS BID NO. 2. THE OFFER IS NONRESPONSIVE AND THEREFORE MUST BE REJECTED. THE ONLY DIFFERENCE BETWEEN BID NO. 1 AND BID NO. 2 IS THAT UNDER BID NO. 1. STRUCTURES SHOWN ON THE DRAWING WERE TO BE DEMOLISHED. ONLY THE BUILDING AND STRUCTURES WERE TO BE DEMOLISHED. WHICH AMOUNT WAS TO BE ADDED TO THE LUMP SUM. WE DO NOT FEEL THAT A BIDDER WAS OBLIGATED THEREUNDER TO QUOTE ON BOTH ITEMS. THE BID ON WHICH NO PRICE WAS QUOTED. BIDDERS MUST QUOTE ON ALL ITEMS AND THEY ARE WARNED THAT FAILURE TO DO SO MAY DISQUALIFY THE BID.'.

B-142382, APR. 19, 1960

TO CORNELL WRECKING COMPANY, INC.:

REFERENCE IS MADE TO LETTER OF MARCH 24, 1960, AND ENCLOSURE, FROM GEORGE J. GOLDSBOROUGH, JR., ATTORNEY, PROTESTING ON YOUR BEHALF AGAINST THE AWARD OF A CONTRACT TO INTERSTATE DEMOLITION CORPORATION, UNDER INVITATION FOR BIDS NO. GS-R3-B-7976, ISSUED BY PUBLIC BUILDINGS SERVICE, REGION 3, OF GENERAL SERVICES ADMINISTRATION. IT IS THE CONTENTION OF YOUR ATTORNEY THAT SINCE THE LOW BIDDER FAILED TO QUOTE A PRICE FOR THE WORK CALLED FOR UNDER A SECOND ITEM IDENTIFIED IN THE INVITATION AS BID NO. 2, THE OFFER IS NONRESPONSIVE AND THEREFORE MUST BE REJECTED.

THE RECORD DISCLOSES THAT IN RESPONSE TO THE ABOVE SOLICITATION THE LOW BIDDER QUOTED A PRICE OF $17,098 ON BID NO. 1, PLUS $4,400 FOR THE ADDITIVE SHOWN THEREIN AS ALTERNATE A, WHEREAS, UNDER THE SAME ITEMS YOU BID $26,980 AND $5,200, RESPECTIVELY, OR $10,682 IN EXCESS OF THE LOWEST OFFER. THE LOW BIDDER DID NOT QUOTE ON BID NO. 2, UNDER WHICH YOU OFFERED TO PERFORM THE WORK FOR $16,580. THE ONLY DIFFERENCE BETWEEN BID NO. 1 AND BID NO. 2 IS THAT UNDER BID NO. 1, THE BUILDING, WALL, AND STRUCTURES SHOWN ON THE DRAWING WERE TO BE DEMOLISHED, WHEREAS, UNDER BID NO. 2, ONLY THE BUILDING AND STRUCTURES WERE TO BE DEMOLISHED, THE WALL BEING OMITTED.

PARAGRAPH 2-5 OF THE SPECIFICATIONS MADE A PART OF THE INVITATION REQUIRED LUMP SUM BIDS, AND PARAGRAPH 2-6 REQUIRED THE QUOTATION OF A PRICE FOR THE ALTERNATE WORK, WHICH AMOUNT WAS TO BE ADDED TO THE LUMP SUM, TO REFLECT THE TOTAL PRICE FOR THE STIPULATED REQUIREMENTS. WHILE THE SPECIFICATIONS REQUIRED THAT ANY OFFER MUST BE IN THE FORM OF A LUMP SUM BID ON ONE OF THE TWO ITEMS, COUPLED WITH A QUOTATION ON ALTERNATE A, WE DO NOT FEEL THAT A BIDDER WAS OBLIGATED THEREUNDER TO QUOTE ON BOTH ITEMS. HOWEVER, FAILURE TO DO SO WOULD BE AT THE BIDDER'S PERIL IN THE EVENT THE CONTRACTING OFFICER DETERMINED TO ACCEPT, IN THE BEST INTEREST OF THE GOVERNMENT, THE BID ON WHICH NO PRICE WAS QUOTED.

IN SUPPORT OF HIS CONTENTION, YOUR ATTORNEY REFERS TO SECTION 5 OF STANDARD FORM 22, INSTRUCTIONS TO BIDDERS, WHICH PROVIDES THAT "WHERE REQUIRED ON THE BID FORM, BIDDERS MUST QUOTE ON ALL ITEMS AND THEY ARE WARNED THAT FAILURE TO DO SO MAY DISQUALIFY THE BID.' IN ADDITION TO OUR FOREGOING CONCLUSION THAT THOSE INSTRUCTIONS ARE NOT FOR APPLICATION HERE SINCE THE BID FORM DID NOT REQUIRE QUOTATIONS ON BOTH BIDS, IT HAS BEEN HELD GENERALLY THAT FAILURE TO QUOTE ON ALL ITEMS OF AN INVITATION DOES NOT RENDER A BID THEREUNDER DEFECTIVE. IN DECISION OF MAY 25, 1955, 34 COMP. GEN. 633, A SIMILAR REQUIREMENT WAS CONSIDERED TO BE SOLELY FOR THE BENEFIT OF THE GOVERNMENT, AND IT WAS HELD THAT ANY PRICE OMISSION SHOULD BE TREATED AS AN INFORMALITY, SINCE IT DID NOT PREJUDICE THE RIGHTS OF OTHER BIDDERS, AND COULD BE WAIVED PURSUANT TO THE RIGHTS RESERVED TO THE UNITED STATES UNDER PARAGRAPH 11 (B) OF THE INSTRUCTIONS. IN OUR OPINION SUCH CONCLUSION EQUALLY IS FOR APPLICATION IN THIS CASE.

ACCORDINGLY, YOUR ATTORNEY'S PROTEST AFFORDS NO LEGAL BASIS FOR DISREGARDING THE BID OF INTERSTATE DEMOLITION CORPORATION IF IT BE DEEMED BY THE ADMINISTRATION TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO AWARD A CONTRACT ON THE BASIS OF THE REQUIREMENTS OF BID NO. 1.