B-144234, OCT. 31, 1960

B-144234: Oct 31, 1960

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VETERANS ADMINISTRATION: REFERENCE IS MADE TO A LETTER DATED OCTOBER 12. FIVE BIDS WERE RECEIVED. 870 WAS SUBMITTED BY LIBERTY PAINTING AND SHEETING CO. THE OTHER BIDS RECEIVED WERE IN THE AMOUNTS OF $27. NO BID WILL BE ACCEPTED FROM A CONTRACTOR WHO HAS NOT BEEN DOING BUSINESS FOR AT LEAST FIVE RS.'. THE BUILDINGS ON THE LIST SUBMITTED BY LIBERTY IN CONNECTION WITH THE REQUIREMENTS AS TO EXPERIENCE WERE EXAMINED BY GOVERNMENT REPRESENTATIVES ON SEPTEMBER 12 AND 14. AS A RESULT THE HOSPITAL'S ENGINEERING OFFICER WAS OF THE OPINION THAT LIBERTY LACKED THE NECESSARY EXPERIENCE IN TUCKPOINTING. IT WAS INDICATED THAT LIBERTY INTENDED TO HIRE UNION WORKERS FOR THE TUCKPOINTING WORK. A REPRESENTATIVE OF LIBERTY VERBALLY INDICATED THAT THERE WAS NO MISTAKE IN THE BID.

B-144234, OCT. 31, 1960

TO HONORABLE SUMNER G. WHITTIER, ADMINISTRATOR, VETERANS ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 12, 1960, FILE 13401, FROM THE CHIEF MEDICAL DIRECTOR OF YOUR AGENCY, REQUESTING OUR DECISION AS TO WHETHER LIBERTY PAINTING AND SHEETING CO. MAY BE RELIEVED OF ITS OBLIGATION TO EXECUTE A FORMAL CONTRACT FOR CERTAIN MAINTENANCE AND REPAIR WORK REQUIRED FOR BUILDING NO. 1, VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW YORK.

THE CHIEF, SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL, BUFFALO, NEW YORK, INVITED BIDS--- TO BE OPENED SEPTEMBER 8, 1960--- FOR CAULKING, TUCKPOINTING AND WINDOW PAINTING OF BUILDING NO. 1 AT THE HOSPITAL. FIVE BIDS WERE RECEIVED. THE LOWEST BID IN THE AMOUNT OF $21,870 WAS SUBMITTED BY LIBERTY PAINTING AND SHEETING CO. THE OTHER BIDS RECEIVED WERE IN THE AMOUNTS OF $27,488, $28,790, $31,874 AND $53,470. PARAGRAPH 7 OF GENERAL REQUIREMENTS PROVIDED AS FOLLOWS:

"7. SPECIAL QUALIFICATIONS OF CONTRACTOR

"ALL WORK IN CONNECTION WITH THIS CONTRACT SHALL BE PERFORMED BY A COMPANY WITH EXPERIENCE IN THIS TYPE OF WORK. EACH BIDDER SHALL SUBMIT WITH HIS BID THE NAMES AND ADDRESSES OF AT LEAST (2) TWO BUILDINGS WHICH HE HAS SUCCESSFULLY TUCKPOINTED BY THE METHOD SPECIFIED HEREIN AND THE NAMES AND ADDRESSES OF AT LEAST (2) TWO BUILDINGS WHICH HE HAS SUCCESSFULLY PAINTED EXTERIOR METAL SASH. NO BID WILL BE ACCEPTED FROM A CONTRACTOR WHO HAS NOT BEEN DOING BUSINESS FOR AT LEAST FIVE RS.'

THE BUILDINGS ON THE LIST SUBMITTED BY LIBERTY IN CONNECTION WITH THE REQUIREMENTS AS TO EXPERIENCE WERE EXAMINED BY GOVERNMENT REPRESENTATIVES ON SEPTEMBER 12 AND 14, 1960. AS A RESULT THE HOSPITAL'S ENGINEERING OFFICER WAS OF THE OPINION THAT LIBERTY LACKED THE NECESSARY EXPERIENCE IN TUCKPOINTING. IN A SUBSEQUENT CONVERSATION ON SEPTEMBER 15, 1960, IT WAS INDICATED THAT LIBERTY INTENDED TO HIRE UNION WORKERS FOR THE TUCKPOINTING WORK. UPON A REQUEST FOR VERIFICATION OF ITS BID, A REPRESENTATIVE OF LIBERTY VERBALLY INDICATED THAT THERE WAS NO MISTAKE IN THE BID. IN A LATER DISCUSSION WITH HOSPITAL PERSONNEL THE OWNER OF THE BIDDING FIRM REPEATED THE PRIOR STATEMENT CONCERNING THE HIRING OF UNION WORKERS AND THAT NO MISTAKE HAD BEEN MADE IN THE BID. HOWEVER, IT WAS POINTED OUT TO THE OWNER (MR. LIGNOS) THAT THE CAULKING MATERIAL SPECIFIED (LASTRO-METRIC OR AN APPROVED EQUAL) WAS MORE EXPENSIVE THAN THE CONVENTIONAL CAULKING COMPOUNDS AND IT IS REPORTED THAT HE APPEARED TO UNDERSTAND THE FULL SCOPE OF THE WORK. NOTHING MORE IN REGARD TO A POSSIBLE MISTAKE IN BID WAS MENTIONED UNTIL AFTER THE AWARD OF THE CONTRACT TO LIBERTY ON SEPTEMBER 20, 1960. ON THE MORNING OF SEPTEMBER 26, 1960, THE OWNER OF LIBERTY TELEPHONED THE CONTRACTING OFFICER AND ADVISED HIM THAT HE HAD MADE A MISTAKE IN PRICING. HE STATED THAT HE HAD FIGURED ON THE STANDARD TYPE OF CAULKING RATHER THAN THE CAULKING MATERIAL CITED IN THE SPECIFICATIONS. LETTER FROM THE BIDDER, RECEIVED BY THE CONTRACTING OFFICE ON SEPTEMBER 27, 1960, SHOWS THAT LIBERTY HAD BID THE AMOUNT OF $14 PER GALLON (INCLUDING MATERIAL AND APPLICATION) WHICH WOULD BE THE CORRECT AMOUNT IF THE MATERIAL USED FOR CAULKING WAS OF THE ORDINARY TYPE. THAT LETTER ALSO SHOWS THE PRICE SHOULD HAVE BEEN $44 PER GALLON AND LIBERTY STATED THAT SINCE THE PRICE OF THE PROPER CAULKING MATERIAL, INCLUDING APPLICATION, IS $44 PER GALLON, THE CONTRACT PRICE SHOULD BE INCREASED BY ABOUT $6,000, OR $30 PER GALLON FOR THE REQUIRED 200 GALLONS.

IN THIS CASE LIBERTY WAS GIVEN SUFFICIENT OPPORTUNITY TO RECHECK AND VERIFY ITS BID. IT WAS NOT UNTIL AFTER IT HAD CONFIRMED ITS BID THAT THE CONTRACTING OFFICER MADE THE AWARD. HAD HE THEREAFTER NOT AWARDED THE CONTRACT TO LIBERTY AS THE LOWEST RESPONSIBLE BIDDER, HE WOULD HAVE BEEN DERELICT IN HIS DUTY TO THE GOVERNMENT. SEE CARNEGIE STEEL COMPANY V. CONNELLY, 97 A. 774; SHRIMPTON MFG. COMPANY V. BRIN, 125 S.W. 942; ALABAMA SHIRT AND TROUSER CO. V. UNITED STATES, 121 CT.CL. 313; AND 37 COMP. GEN. 786. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED BY ANY OFFICER OF THE GOVERNMENT IN THE ABSENCE OF ADEQUATE CONSIDERATION. THE FACT THAT A CONTRACTOR MAY SUFFER A HARDSHIP DOES NOT AUTHORIZE AN EXCEPTION TO THE RULE. SEE 22 COMP. GEN. 60; DAY V. UNITED STATES, 245 U.S. 159.

IN THE CIRCUMSTANCES WE FIND NO LEGAL BASIS FOR RELIEVING THE CONTRACTOR OF ITS OBLIGATION TO EXECUTE A FORMAL CONTRACT AND TO PERFORM THE INVOLVED WORK AT ITS BID PRICE OF $21,870.

THE PAPERS REFERRED TO IN THE LAST PARAGRAPH OF THE REQUEST FOR DECISION ARE RETURNED HEREWITH AS REQUESTED.