B-145784, JUL. 13, 1961

B-145784: Jul 13, 1961

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SEVENTEEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE THOMAS BROTHERS PAINTING COMPANY WAS LOW WITH A BID OF $28. THE NEXT BID WAS $31. THE THIRD LOW BID WAS IN THE AMOUNT OF $39. THE GOVERNMENT ESTIMATE FOR THE WORK WAS $47. THE LOW BIDDER HAD NOT SUBMITTED AN UNSOLICITED LETTER STATING "WE CERTIFY THAT WE WILL PERFORM ALL WORK ON THE ABOVE PROJECT AS SPECIFIED IN THE SPECIFICATION. " IT WOULD HAVE BEEN REQUESTED TO VERIFY ITS BID. THE LETTER OF MAY 3 STATES: "WE BELIEVE THAT ALTHOUGH THERE WAS NOTHING ON THE FACE OF THE BID WHICH COULD REVEAL IN WHAT AREA THE BIDDER ERRED. AN ANALYSIS OF THE ABSTRACT OF BIDS REVEALS THAT THE DISPARITY BETWEEN THE GOVERNMENT'S ESTIMATE AND THE FIRST AND SECOND BIDS WAS SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF AN ERROR IN THE LOW BID WHICH WOULD REQUIRE THAT HE OBTAIN VERIFICATION OF THE BID NOTWITHSTANDING THE RECEIPT OF THE ABOVE REFERRED TO UNSOLICITED LETTER FROM THE CONTRACTOR.

B-145784, JUL. 13, 1961

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

BY LETTER OF MAY 3, 1961, YOU PRESENTED FOR CONSIDERATION A QUESTION WHETHER THE EXCESS COSTS INCURRED IN RELETTING A CONTRACT AWARDED TO THE THOMAS BROTHERS PAINTING COMPANY UNDER AN INVITATION FOR EXTERIOR PAINTING OF THE TANK FARM AT THE GSA-DMS DEPOT, SOMERVILLE, NEW JERSEY, COULD BE CANCELED IN VIEW OF AN ERROR MADE BY THE BIDDER IN THE PREPARATION OF THE BID.

SEVENTEEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE THOMAS BROTHERS PAINTING COMPANY WAS LOW WITH A BID OF $28,600. THE NEXT BID WAS $31,785. THE THIRD LOW BID WAS IN THE AMOUNT OF $39,540. THE BALANCE OF THE BIDS, RANGING FROM $41,000 TO $128,200, GENERALLY FOLLOWED FAIRLY CLOSE TOGETHER. THE GOVERNMENT ESTIMATE FOR THE WORK WAS $47,000.

IT APPEARS THAT, IF, AFTER THE OPENING OF BIDS, THE LOW BIDDER HAD NOT SUBMITTED AN UNSOLICITED LETTER STATING "WE CERTIFY THAT WE WILL PERFORM ALL WORK ON THE ABOVE PROJECT AS SPECIFIED IN THE SPECIFICATION," IT WOULD HAVE BEEN REQUESTED TO VERIFY ITS BID. IN THAT CONNECTION, THE LETTER OF MAY 3 STATES:

"WE BELIEVE THAT ALTHOUGH THERE WAS NOTHING ON THE FACE OF THE BID WHICH COULD REVEAL IN WHAT AREA THE BIDDER ERRED, AN ANALYSIS OF THE ABSTRACT OF BIDS REVEALS THAT THE DISPARITY BETWEEN THE GOVERNMENT'S ESTIMATE AND THE FIRST AND SECOND BIDS WAS SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF AN ERROR IN THE LOW BID WHICH WOULD REQUIRE THAT HE OBTAIN VERIFICATION OF THE BID NOTWITHSTANDING THE RECEIPT OF THE ABOVE REFERRED TO UNSOLICITED LETTER FROM THE CONTRACTOR. THIS HE FAILED TO DO, RELYING ON THE UNSOLICITED LETTER AS VERIFICATION OF THE BID. * *

NOTHING IN THE BIDDER'S UNSOLICITED STATEMENT INDICATES THAT THE BID PRICE HAD BEEN REVIEWED OR THAT THE INTENTION WAS TO CONFIRM THE BID PRICE. THE ONLY INDICATION IS THAT THE BIDDER INTENDED TO PERFORM IN ACCORDANCE WITH THE SPECIFICATIONS. SINCE THE BIDDER DID NOT SPECIFICALLY CONFIRM ITS BID PRICE WE DO NOT BELIEVE THAT THE CIRCUMSTANCES WARRANT TREATING THE STATEMENT AS A BID VERIFICATION.

ACCORDINGLY, AND SINCE IT APPEARS THAT AN ERROR, IN FACT, WAS MADE, IT IS DOUBTFUL THAT A VALID AND BINDING CONTRACT CAME INTO EXISTENCE WITH THE ACCEPTANCE OF THE LOW BID. ACCORDINGLY, THE COMPANY MAY BE RELIEVED OF ANY LIABILITY UNDER THE CONTRACT.

THE ENCLOSURES THAT ACCOMPANIED THE LETTER OF MAY 3, 1961, ARE RETURNED HEREWITH.