B-144008, SEP. 23, 1960

B-144008: Sep 23, 1960

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THE WOODBURY BID WAS FOUND TO BE LOW AT $21. WOODBURY WAS REQUESTED TO VERIFY ITS BID. THE OMISSION IS SAID TO HAVE RESULTED BECAUSE THE FIRM'S REPRESENTATIVE CONFUSED "FIRE STAIRS" WITH "FIRE ESCAPES" UPON ASSURANCE BY THE PROJECT ENGINEER THAT THE LATTER WERE NOT REQUIRED BY THE SPECIFICATIONS. THE LOW BIDDER ALSO PROVIDED A WORK SHEET SHOWING THAT THE FIRE STAIRS WERE NOT INCLUDED IN ARRIVING AT THE LOW BID. IT WAS STATED THAT THE LOW BID WOULD HAVE BEEN $8. OUR ADVICE IS REQUESTED AS TO WHETHER THE LOW BID MAY BE CORRECTED AND CONSIDERED FOR AWARD OR. THE TYPE OF ERROR ALLEGED IS SIMILAR IN LEGAL SIGNIFICANCE TO THAT CONSIDERED AT 17 COMP. THAT THE DISPARITY BETWEEN THE LOW BID AND THE OTHER BIDS PLUS THE FACT THAT THE LOW BID WAS SIGNIFICANTLY BELOW THE GOVERNMENT'S ESTIMATE OF COST WHILE THE OTHER BIDS WERE WELL ABOVE THAT FIGURE.

B-144008, SEP. 23, 1960

TO MR. EDWARD A. POYNTON, CONTRACTING OFFICER, BUREAU OF INDIAN AFFAIRS:

YOUR LETTER OF SEPTEMBER 16, 1960, WITH ENCLOSURES, YOUR REFERENCE PD AND C, REQUESTS OUR DECISION AS TO THE PROPER DISPOSITION OF THE BID SUBMITTED BY THE WOODBURY CONSTRUCTION COMPANY IN RESPONSE TO INVITATION NO. BU 203- 642, ISSUED AUGUST 19, 1960.

AT BID OPENING AS SCHEDULED ON SEPTEMBER 7, 1960, THE WOODBURY BID WAS FOUND TO BE LOW AT $21,100. THE OTHER FOUR BIDS RANGED FROM $36,000 TO $52,988. BECAUSE OF THE DISPARITY BETWEEN THE LOW BID AND THE OTHERS, AND BETWEEN THE LOW BID AND THE GOVERNMENT ESTIMATE OF $30,000, WOODBURY WAS REQUESTED TO VERIFY ITS BID. THE LOW BIDDER ADVISED THAT AN AMOUNT FOR FIRE STAIRS, REQUIRED BY THE TERMS OF THE SPECIFICATIONS, HAD BEEN OMITTED FROM ITS BID. THE OMISSION IS SAID TO HAVE RESULTED BECAUSE THE FIRM'S REPRESENTATIVE CONFUSED "FIRE STAIRS" WITH "FIRE ESCAPES" UPON ASSURANCE BY THE PROJECT ENGINEER THAT THE LATTER WERE NOT REQUIRED BY THE SPECIFICATIONS. THE LOW BIDDER ALSO PROVIDED A WORK SHEET SHOWING THAT THE FIRE STAIRS WERE NOT INCLUDED IN ARRIVING AT THE LOW BID. IN A LETTER OF SEPTEMBER 12, 1960, IT WAS STATED THAT THE LOW BID WOULD HAVE BEEN $8,558 HIGHER HAD THE FIRE STAIRS BEEN INCLUDED IN THE PRICE.

OUR ADVICE IS REQUESTED AS TO WHETHER THE LOW BID MAY BE CORRECTED AND CONSIDERED FOR AWARD OR, IN THE ALTERNATIVE, WHETHER THE LOW BID MAY BE WITHDRAWN WITHOUT FORFEITURE OF BID SECURITY.

THE TYPE OF ERROR ALLEGED IS SIMILAR IN LEGAL SIGNIFICANCE TO THAT CONSIDERED AT 17 COMP. GEN. 575, WHERE A MISTAKE IN THE LOW BID AROSE FROM THE BIDDER'S UNWARRANTED ASSUMPTION THAT CERTAIN MATERIALS WOULD BE SUPPLIED BY THE GOVERNMENT TO THE CONTRACTOR WITHOUT COST. IN THAT DECISION WE STATED, QUOTING FROM 17 COMP. GEN. 416, 418, THAT THE DISPARITY BETWEEN THE LOW BID AND THE OTHER BIDS PLUS THE FACT THAT THE LOW BID WAS SIGNIFICANTLY BELOW THE GOVERNMENT'S ESTIMATE OF COST WHILE THE OTHER BIDS WERE WELL ABOVE THAT FIGURE, WARRANTED THE CONCLUSION THAT SUCH MISTAKE HAD BEEN MADE IN THE LOW BID AS TO AUTHORIZE ITS WITHDRAWAL WITHOUT LOSS OF BID SECURITY. IN OUR VIEW, THAT CONCLUSION IS EQUALLY APPLICABLE IN THIS INSTANCE.

TO PERMIT CORRECTION OF A MISTAKE IN BID ALLEGED AFTER OPENING AND PRIOR TO AWARD, THE ERROR AND THE INTENDED BID MUST BE CONCLUSIVELY ESTABLISHED BY COMPETENT EVIDENCE. 35 COMP. GEN. 279, 281. IN THIS CASE, THE ONLY EVIDENCE PRESENTED AS TO THE AMOUNT INTENDED IS THE UNSUPPORTED STATEMENT OF THE LOW BIDDER THAT THE BID SHOULD BE INCREASED BY $8,558. THIS IS TOTALLY INADEQUATE TO MEET THE TEST ESTABLISHED FOR BID CORRECTION.

IN ACCORDANCE WITH THE FOREGOING, THE LOW BID SUBMITTED BY WOODBURY MAY NOT BE CORRECTED BUT MAY BE WITHDRAWN WITHOUT LOSS OF BID DEPOSIT.