B-144548, JAN. 4, 1961

B-144548: Jan 4, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

M. CULLUM: REFERENCE IS MADE TO YOUR CLAIM FOR $1. REPRESENTING AN AMOUNT IN ADDITION TO THE CONTRACT PRICE WHICH YOU CONTEND YOU ARE ENTITLED TO BE PAID FOR CERTAIN FLUORESCENT LIGHTING FIXTURES WHICH YOU INSTALLED IN MAKING ELECTRICAL REPAIRS TO THE U.S. THE SPECIFICATIONS FOR WHICH WERE MADE A PART OF THE INVITATION. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. WHICH WAS IN THE TOTAL AMOUNT OF $6. YOU ARE REQUESTED TO REVIEW THE SPECIFICATIONS AND RECHECK YOUR ESTIMATE. ADVISE THIS OFFICE AS SOON AS POSSIBLE WHETHER OR NOT YOU ARE PREPARED TO PERFORM THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS AT THE BID PRICE. THAT YOU WISHED TO ADVISE THAT YOU WERE PREPARED TO PERFORM THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS FOR THE AMOUNT OF YOUR BID.

B-144548, JAN. 4, 1961

TO W. K. AND W. M. CULLUM:

REFERENCE IS MADE TO YOUR CLAIM FOR $1,113.11, REPRESENTING AN AMOUNT IN ADDITION TO THE CONTRACT PRICE WHICH YOU CONTEND YOU ARE ENTITLED TO BE PAID FOR CERTAIN FLUORESCENT LIGHTING FIXTURES WHICH YOU INSTALLED IN MAKING ELECTRICAL REPAIRS TO THE U.S. POST OFFICE AT LEWES UNDER CONTRACT NO. GS-02B-6545.

BY IFB-2PCS-9-25, DATED AUGUST 11, 1958, THE GENERAL SERVICES ADMINISTRATION, PUBLIC BUILDINGS SERVICE, INVITED BIDS, TO BE OPENED SEPTEMBER 3, 1958,"FOR FURNISHING ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORMING ALL WORK" INCIDENT TO THE ACCOMPLISHMENT OF CERTAIN ELECTRICAL REPAIRS TO THE U.S. POST OFFICE IN LEWES, DELAWARE, THE SPECIFICATIONS FOR WHICH WERE MADE A PART OF THE INVITATION. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, INCLUDING YOURS, WHICH WAS IN THE TOTAL AMOUNT OF $6,795, AND BY LETTER OF SEPTEMBER 16, 1958, THE CHIEF, DESIGN AND CONSTRUCTION DIVISION, PUBLIC BUILDINGS SERVICE, ADVISED YOU WITH REFERENCE TO THE MATTER AS FOLLOWS:

"A REVIEW OF THE BIDS SUBMITTED ON SEPTEMBER 3, 1958, FOR ELECTRICAL REPAIRS AT THE U.S. POST OFFICE, LEWES, DELAWARE, FOR WHICH YOU SUBMITTED A LOW BID IN THE AMOUNT OF $6795.00, INDICATES THE POSSIBILITY OF AN ERROR IN YOUR BID.

"BEFORE YOUR BID CAN BE CONSIDERED FOR AWARD, YOU ARE REQUESTED TO REVIEW THE SPECIFICATIONS AND RECHECK YOUR ESTIMATE. ADVISE THIS OFFICE AS SOON AS POSSIBLE WHETHER OR NOT YOU ARE PREPARED TO PERFORM THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS AT THE BID PRICE.

"NO CONSIDERATION CAN BE GIVEN TO A CORRECTION OF YOUR BID PRICE.'

YOU REPLIED TO THE ABOVE LETTER BY LETTER OF SEPTEMBER 18, 1958, STATING THAT YOU HAD REVIEWED THE SPECIFICATIONS AND RECHECKED YOUR ESTIMATE FOR THE WORK TO BE DONE, AND THAT YOU WISHED TO ADVISE THAT YOU WERE PREPARED TO PERFORM THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS FOR THE AMOUNT OF YOUR BID.

IT APPEARS THAT THE CONTRACT FOR THE WORK WAS AWARDED TO YOU ON OCTOBER 3, 1958, FOR THE AMOUNT OF YOUR BID. HOWEVER, BY LETTER OF JANUARY 21, 1959, YOU ADVISED THE ABOVE OFFICIAL THAT YOU HAD MISINTERPRETED THE SPECIFICATIONS IN THE MANNER DESCRIBED IN YOUR LETTER OF JANUARY 16, 1959, TO THE AGENCY'S PHILADELPHIA FIELD OFFICE, WHICH IS IN PERTINENT PART AS FOLLOWS:

"ACCORDING TO YOUR SPECIFICATIONS ON WHICH WE BASED OUR BID FOR THIS WORK, ON PAGE 5-14, SCHEDULE OF LIGHTING FIXTURES, WE UNDERSTOOD THIS TO READ AS FOLLOWS. QUANTITY REQUIRED 2, TYPE NUMBER 362 RS-3 FIXTURES FOR THE SWING ROOM. WE HAVE SINCE LEARNED THAT WE HAVE BID ON THE INCORRECT QUANTITY OF FIXTURES.

"UNDER QUANTITY REQUIRED SHOULD HAVE BEEN WORDED 2 ROWS, 3 FIXTURES TO A ROW, TYPE NUMBER AND ETC.'

YOU STATED THAT YOU WOULD BE WILLING TO ACCEPT THE LOSS OF INSTALLING THE FIXTURES PROVIDED THE GOVERNMENT WOULD FURNISH "THE EXTRA 70 OR 80 FIXTURES WHICH WE FAILED TO BID ON.'

THE CHIEF, DESIGN AND CONSTRUCTION DIVISION, PUBLIC BUILDINGS SERVICE, REPLIED TO YOUR LETTER BY LETTER OF MARCH 3, 1959, STATING IN SUBSTANCE THAT THERE APPEARED TO BE NO REASON FOR YOUR MISINTERPRETATION OF THE SPECIFICATIONS, WHICH WERE CLEAR IN SETTING FORTH THE QUANTITY OF FIXTURES REQUIRED, AND THE AGENCY, THEREFORE, WAS WITHOUT AUTHORITY TO MAKE ANY ADJUSTMENT IN THE CONTRACT PRICE, OR TO PROVIDE THE EXTRA FIXTURES REQUIRED UNDER THE CONTRACT. THE LETTER CONCLUDED WITH THE ADVICE THAT YOU SHOULD PROCEED WITH THE WORK, AND, AFTER COMPLETION THEREOF, FILE CLAIM WITH OUR OFFICE FOR ANY AMOUNT TO WHICH YOU BELIEVED YOU WERE ENTITLED. THIS PROCEDURE HAS BEEN FOLLOWED, AND THE AMOUNT OF YOUR CLAIM AS FORWARDED HERE BY THE GENERAL SERVICES ADMINISTRATION, AND AS STATED IN YOUR INVOICE, COVERS THE FOLLOWING ITEMS:

TABLE

" 5 - NO. 363RS01 PEERLESS FIXTURE $ 69.60

11 - NO. 362-RSM2 DO DO 279.51

2 - NO. 362-RSM3 DO DO 73.70

3 - NO. 362-RSM4 DO DO 146.46

7 - NO. 362-RSM5 DO DO 436.17

12 - NO. 3027 ENDS 6.48

$1,011.92

PLUS 10 PERCENT 101.19

TOTAL 1,113.11"

BIDDERS WERE ADVISED IN PARAGRAPH 2-1 OF THE SPECIAL CONDITIONS OF THE SPECIFICATIONS THAT THE ELECTRICAL REPAIRS TO BE PERFORMED INCLUDED, AMONG OTHER THINGS, THE FURNISHING OF ALL MATERIALS AND EQUIPMENT REQUISITE FOR THE INSTALLATION OF NEW FLUORESCENT FIXTURES "AS HEREINAFTER SPECIFIED.' ALSO, THEY WERE ADVISED IN PARAGRAPH 4-1, ENTITLED "MATERIALS TO BE FURNISHED BY GOVERNMENT," AS FOLLOWS:

"4-1. THE GOVERNMENT WILL FURNISH (ONLY) THE FOLLOWING QUANTITY AND TYPE OF LIGHTING FIXTURES AS INDICATED IN PARAGRAPH 5-91 (5-94) AT END OF SCHEDULE OF LIGHTING FIXTURES;

93 NO. 362 RS

7 NO. 363 RS"

MOREOVER, PARAGRAPH 5-73 OF THE SPECIFICATIONS PROVIDED:

"5-73. LIGHTING FIXTURES AND LIGHTING EQUIPMENT SHALL BE IN COMPLIANCE WITH STANDARD DETAIL DRAWINGS NO. 10-8-20J; 10-8-25G, SH 1 AND 2, 10-8- 29F; 10-8-35A; AND 10-8-37; AS SHOWN ON VARIOUS PROJECT DRAWINGS AND AS SPECIFIED IN THE STANDARD SPECIFICATION DATED APRIL 1, 1956, AND AS LISTED IN THE "SCHEDULE OF FIXTURES," AND AS HEREINAFTER SPECIFIED AND NOTED.'

THE REFERRED-TO SCHEDULE OF LIGHTING FIXTURES AND THE QUANTITY THEREOF WHICH THE GOVERNMENT WAS TO FURNISH WAS SET FORTH IN PARAGRAPH 5-94, PAGE 5-14, OF THE SPECIFICATIONS AS FOLLOWS:

* * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * *

NOTE: FOLLOWING NUMBER OF THE TOTAL FIXTURES REQUIRED WILL BE FURNISHED BY THE GOVERNMENT

93 - 362 RS

7 - 363 RS

RELATIVE TO THE SUGGESTION IN YOUR LETTER OF JANUARY 16, 1959, THAT THE METHOD EMPLOYED IN THE ABOVE SCHEDULE FOR NUMBERING THE LIGHTING FIXTURES WAS MISLEADING, IT WILL BE NOTED THAT PARAGRAPH 5-73 OF THE SPECIFICATIONS PROVIDED THAT THE LIGHTING FIXTURES AND LIGHTING EQUIPMENT WERE REQUIRED, AMONG OTHER THINGS, TO BE IN COMPLIANCE WITH STANDARD DETAIL DRAWINGS NO. 10-8-20J. THIS DRAWING, WHICH WAS INCLUDED IN THE SPECIFICATIONS FURNISHED TO BIDDERS, DEPICTS A "SINGLE UNIT" OF "TYPE NOS. 362 AND 363," FOLLOWED BY THE NOTATION: "ADDITIONAL UNITS AS SPECIFIED TO FORM ONE CONTINUOUS FIXTURE. SEE NOTE NO. 1.' NOTE NO. 1, WHICH IS SET FORTH ON THE DRAWING, STATES:

"1--- FIXTURES COVERED BY THIS DRAWING ARE SPECIFIED AS COMPLETE FIXTURES CONSISTING OF MULTIPLES OF THE BASIC UNIT (IN NUMBER INDICATED BY THE NUMERAL FOLLOWING THE TYPE NUMBER) JOINED END TO END. FOR EXAMPLE, FIXTURE TYPE 362-1 REQUIRES ONE UNIT OF BASIC TYPE 362. FIXTURE TYPE 362- 2 REQUIRES TWO UNITS; FIXTURE TYPE 362-3 REQUIRES THREE UNITS.'

ALSO, NOTES NOS. 8 AND 9 ON THIS DRAWING STATE:

"8--- WHEN FIXTURES ARE REQUIRED FOR "RAPID START" OPERATION, THE LETTERS "RS" FOLLOW THE FIXTURE TYPE NUMBER, FOR EXAMPLE, TYPE NO. 362RS-1, 362RS- 2, ETC.

"9--- SIDE PANELS: WHEN SOLID METAL SIDE PANELS ARE REQUIRED IN LIEU OF LUMINOUS PLASTIC SIDE PANELS, THE LETTER "M" FOLLOWS THE FIXTURE TYPE NUMBER, FOR EXAMPLE, TYPE NO. 362RSM-1, 362M-1, ETC. EXTERIOR OF END PLATES AND ALL SURFACES OF SIDE PANELS ON FIXTURES SO SPECIFIED SHALL BE FINISHED IN BAKED WHITE ENAMEL OVER SUITABLE PRIMER.'

IN VIEW OF THE ABOVE, THE SPECIFICATIONS MUST BE HELD TO HAVE BEEN CLEAR AND UNAMBIGUOUS, NOT ONLY WITH RESPECT TO THE QUANTITY OF EACH TYPE OF FIXTURE REQUIRED TO BE USED IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT, BUT ALSO WITH RESPECT TO THE NUMBER OF UNITS, OR SECTIONS, WHICH WERE TO COMPRISE EACH BASIC FIXTURE, WHERE THE SCHEDULE OF LIGHTING FIXTURES CALLED FOR A MULTIPLE-SECTION FIXTURE. THE SPECIFICATIONS WERE ALSO EXPLICIT IN PROVIDING THAT, OF THE TOTAL LIGHTING FIXTURES SET FORTH IN THE SCHEDULE, THE GOVERNMENT WOULD FURNISH ONLY 93 NO. 362RS AND 7 NO. 363RS. IN OTHER WORDS, UNDER THE EXPRESS TERMS OF PARAGRAPH 4-1 OF THE SPECIFICATIONS AND THE NOTE APPEARING AT THE END OF THE SCHEDULE OF LIGHTING FIXTURES THE GOVERNMENT WAS NOT REQUIRED TO FURNISH ANY OF THE 362 RSM-TYPE FIXTURES, FOR WHICH YOU NOW SEEK PAYMENT, AND IT WAS REQUIRED TO FURNISH ONLY 7 UNITS, OR SECTIONS, OF THE 363RS-TYPE FIXTURE, WHICH IT PRESUMABLY DID.

IN VIEW OF THE LOW AMOUNT OF YOUR BID, AS COMPARED WITH THE AMOUNTS OF THE OTHER BIDS, THE CONTRACTING AGENCY SUSPECTED THE POSSIBILITY OF ERROR, AND YOU WERE THEREFORE REQUESTED TO REVIEW THE SPECIFICATIONS AND RECHECK YOUR ESTIMATE. WHEN YOU REPLIED THAT YOU HAD DONE SO AND WERE PREPARED TO PERFORM THE WORK FOR THE AMOUNT OF YOUR BID, THE CONTRACTING AGENCY WAS FULLY JUSTIFIED IN AWARDING YOU THE CONTRACT, THERE BEING NOTHING ON THE FACE OF THE BID TO INDICATE THAT AN ERROR HAD BEEN MADE THEREIN, AND NO AMBIGUITY IN THE STATEMENT OF THE WORK OR MATERIAL REQUIRED. THE ACCEPTANCE OF THE BID UNDER THE CIRCUMSTANCES GAVE RISE TO A BINDING CONTRACT OBLIGATING YOU TO PERFORM THE REPAIR WORK AND FURNISH THE LIGHTING FIXTURES SET OUT AND REQUIRED TO BE FURNISHED STRICTLY IN ACCORDANCE WITH THE TERMS OF THE SPECIFICATIONS, AND NO OFFICER OF THE GOVERNMENT WOULD NOW BE AUTHORIZED TO PAY YOU ANY AMOUNT IN ADDITION TO THE BID PRICE. SEE 37 COMP. GEN. 786, AND THE COURT CASES CITED THEREIN.