B-143319, JUL. 6, 1960

B-143319: Jul 6, 1960

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INVITATIONS FOR BIDS ON THE PROJECT WERE ISSUED MAY 4. THE PAY ITEMS IN THE INVITATIONS ABOUT WHICH QUESTIONS HAVE ARISEN ARE ITEM 102 (4) WHICH SPECIFIES BORROW EXCAVATION. 000 CUBIC YARDS OF CASE 2 BORROW WAS $0.00. STATED IT WAS HIS INTERPRETATION THAT HE HAD THE ALTERNATIVE OF USING ALL CASE 1 BORROW. STATING THAT HIS BELIEF THAT BORROW SITES FOR CASE 1 BORROW WOULD BE MADE AVAILABLE ON GOVERNMENT LAND FOR ALL BORROW REQUIREMENTS OF THE PROJECT WAS NOT CORRECT. IT IS CLEAR FROM AN ANALYSIS OF THE BIDS BY THE SEVEN OTHER BIDDERS THAT NONE OF THEM SHARED MR. MCBEATH'S EXPLANATION IS IS ACCEPTED THAT HE INTENDED TO BID ALL CASE 1 BORROW. IT IS APPARENT ON THE FACT OF HIS BID THAT HE FAILED TO INCLUDE IN HIS BID THE TOTAL AMOUNT OF BORROW EXCAVATION SINCE A TOTAL OF 930.

B-143319, JUL. 6, 1960

TO F. W. CRON, REGIONAL ENGINEER, BUREAU OF PUBLIC ROADS:

YOUR LETTER OF JUNE 27, 1960, YOUR FILE NO. 23-10, REQUESTS OUR ADVICE REGARDING AWARD OF A CONTRACT TO THE LOW BIDDER AS A RESULT OF BIDS OPENED ON JUNE 2, 1960, FOR THE CONSTRUCTION OF 9.936 MILES OF HIGHWAY UNDER MISSISSIPPI FOREST HIGHWAY PROJECT 34-A1.

INVITATIONS FOR BIDS ON THE PROJECT WERE ISSUED MAY 4, 1960. THE PAY ITEMS IN THE INVITATIONS ABOUT WHICH QUESTIONS HAVE ARISEN ARE ITEM 102 (4) WHICH SPECIFIES BORROW EXCAVATION, CASE 1, OF 800,000 CUBIC YARDS AND ITEM NO. 102 (5) WHICH SPECIFIES BORROW EXCAVATION, CASE 2, OF 130,000 CUBIC YARDS.

THE LOW BIDDER, J. C. MCBEATH, JACKSON, MISSISSIPPI, SUBMITTED A UNIT BID PRICE OF $ .27 PER CUBIC YARD FOR 800,000 CUBIC YARDS OF CASE 1 BORROW, WHILE THE SEVEN OTHER BIDDERS SUBMITTED UNIT BID PRICES RANGING FROM $ .27 TO $ .45 PER CUBIC YARD FOR 800,000 CUBIC YARDS. MR. MCBEATH'S UNIT PRICE AND TOTAL AMOUNT BID FOR 130,000 CUBIC YARDS OF CASE 2 BORROW WAS $0.00, WHILE THE UNIT PRICES OF THE SEVEN OTHER BIDDERS RANGED FROM $ .33 TO $ .536 PER CUBIC YARD.

BY TELEGRAM DATED JUNE 8, 1960, THE BUREAU OF PUBLIC ROADS REQUESTED CONFIRMATION OF MR. MCBEATH'S BID ON ITEM NO. 102 (5), POINTING OUT THAT AN ESTIMATED QUANTITY OF 130,000 CUBIC YARDS OF BORROW EXCAVATION, CASE 2, WOULD BE REQUIRED UNDER THIS ITEM. MR. MCBEATH'S REPLY, DATED JUNE 10, 1960, STATED IT WAS HIS INTERPRETATION THAT HE HAD THE ALTERNATIVE OF USING ALL CASE 1 BORROW. MOREOVER, SINCE HE UNDERSTOOD THAT CASE 2 BORROW COULD NOT BE OBTAINED FROM CERTAIN LANDOWNERS, HE HAD BID ALL CASE 1 BORROW.

YOU REPLIED TO J. C. MCBEATH'S LETTER OF JUNE 10, 1960, BY TELEGRAM OF JUNE 13, 1960, STATING THAT HIS BELIEF THAT BORROW SITES FOR CASE 1 BORROW WOULD BE MADE AVAILABLE ON GOVERNMENT LAND FOR ALL BORROW REQUIREMENTS OF THE PROJECT WAS NOT CORRECT, AND IN THE EVENT OF AN AWARD TO HIM, HE WOULD BE REQUIRED TO FURNISH THE ESTIMATED QUANTITY OF CASE 2 BORROW CALLED FOR IN THE BID SCHEDULE, 130,000 CUBIC YARDS, AT HIS BID PRICE OF "FREE $0.00.'

BY TELEGRAM DATED JUNE 15, 1960, MR. MCBEATH REQUESTED THAT HIS BID BE REJECTED FOR THE REASON THAT HIS INTERPRETATION OF THE REQUIREMENTS DID NOT AGREE WITH THE INTERPRETATION IN YOUR TELEGRAM OF JUNE 13, 1960.

IT IS CLEAR FROM AN ANALYSIS OF THE BIDS BY THE SEVEN OTHER BIDDERS THAT NONE OF THEM SHARED MR. MCBEATH'S INTERPRETATION OF THE REQUIREMENT FOR FURNISHING CASE 2 BORROW, SINCE ALL SEVEN BID UNIT PRICES RANGING FROM $ .04 TO $ .2234 PER CUBIC YARD MORE FOR THE CASE 2 BORROW THAN FOR THE CASE 1 BORROW. FURTHERMORE, IF MR. MCBEATH'S EXPLANATION IS IS ACCEPTED THAT HE INTENDED TO BID ALL CASE 1 BORROW, IT IS APPARENT ON THE FACT OF HIS BID THAT HE FAILED TO INCLUDE IN HIS BID THE TOTAL AMOUNT OF BORROW EXCAVATION SINCE A TOTAL OF 930,000 CUBIC YARDS OF CASE 1 AND CASE 2 ARE REQUIRED AND HIS BID WAS ONLY FOR 800,000 CUBIC YARDS OF CASE 1, THE SAME AMOUNT OF CASE 1 INCLUDED IN THE BIDS OF THE SEVEN OTHER BIDDERS.

THE GOVERNMENT IS CLEARLY ON NOTICE OF THE LOW BIDDER'S ERROR IN INTERPRETATION OF THE CASE 2 BORROW REQUIREMENTS IN THE INVITATION AND OF HIS FURTHER ERROR IN FAILURE TO INCLUDE THE TOTAL AMOUNT OF BORROW EXCAVATION IF HE INTENDED TO BID ALL CASE 1. UNDER THESE CIRCUMSTANCES, ACCEPTANCE OF HIS BID WITH KNOWLEDGE OF THE ERROR THEREIN WOULD NOT CONSUMMATE A VALID AND BINDING CONTRACT. SEE NASON COAL COMPANY V. UNITED STATES, 64 C.CLS. 526; KEMP V. UNITED STATES, 38 F.SUPP. 568; AND ALTA ELECTRIC AND MECHANICAL COMPANY, INC. V. UNITED STATES, 90 C.CLS. 466.

SINCE THE GOVERNMENT IS NOT ENTITLED TO TAKE ADVANTAGE OF THE LOW BIDDER'S ERROR IN THIS CASE AND CANNOT BIND THE BIDDER BY ACCEPTANCE OF HIS BID WHILE ON NOTICE OF ERROR, THE BID OF J. C. MCBEATH SHOULD BE REJECTED, AS REQUESTED IN HIS TELEGRAM OF JUNE 13, 1960.

THE ORIGINAL BID AND BID BOND OF J. C. MCBEATH; THE CONTRACT PLANS, SHEETS 1 TO 17, INCLUSIVE; AND CROSS SECTIONS, SHEETS XS1 TO XS 15,INCLUSIVE, ARE RETURNED. THE OTHER PAPERS ARE BEING RETAINED.