B-147222, SEP. 26, 1961

B-147222, SEP. 26, 1961

TO MR. JOHN C. HELFRICH, ACTING CHIEF, BRANCH OF PLANT DESIGN AND CONSTRUCTION, BUREAU OF INDIAN AFFAIRS:

REFERENCE IS MADE TO YOUR TELEGRAM AND LETTER DATED SEPTEMBER 19, 1961, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING ERRORS ALLEGED BY THE BALAY CONSTRUCTION COMPANY, ALBUQUERQUE, NEW MEXICO, TO HAVE BEEN MADE IN ITS BID OPENED ON SEPTEMBER 14, 1961.

BY INVITATION FOR BIDS SERIAL NO. B1A-0150-62-6, AS AMENDED, BIDS WERE REQUESTED FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF SCHOOL FACILITIES AT CROWN POINT, NEW MEXICO, PROJECT NO. BU603-683. IN RESPONSE THE BALAY CONSTRUCTION COMPANY SUBMITTED A BID OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $2,650,000. THE SEVEN OTHER BIDS ON THE PROJECT RANGED FROM $2,988,988 TO $3,298,000, AND THE GOVERNMENT ESTIMATE OF THE COST OF THE WORK WAS $3,286,306.

YOU STATE THAT WITHIN THE LAST FIVE MINUTES PRIOR TO THE TIME ESTABLISHED IN THE INVITATION FOR OPENING OF BIDS (WHICH WAS 3:00 P.M.), MR. JAMES L. BALAY HANDED THE FIRM'S BID TO MISS DONNA SCALF OF THE BRANCH'S CONTRACT UNIT WHO WAS IN ATTENDANCE AT THE BID DEPOSITORY, AND THAT AFTER HAVING MR. BALAY SEAL HIS FIRM'S BID SHE TIME-STAMPED IT AND DROPPED IT IN THE BID DEPOSIT BOX; AND THAT MR. BALAY THEN PROCEEDED TO THE BID-OPENING ROOM. YOU ALSO STATE THAT AT 3:01 P.M., AS MISS SCALF PROCEEDED WITH THE SEALED BIDS TO THE BID OPENING AREA, SHE WAS MET BY MR. BALAY WHO ORALLY REQUESTED RETURN OF THE BALAY BID; AND THAT MR. CLARENCE H. TANNER, THE BID-OPENING OFFICER, OBSERVING THAT THE TIME INDICATED IN THE INVITATION FOR OPENING HAD PASSED WITHOUT A WRITTEN REQUEST FOR THE RETURN OF THE BID, DENIED THE REQUEST. IT IS FURTHER STATED THAT AT APPROXIMATELY 3:30 P.M. AFTER ALL THE BIDS HAD BEEN OPENED AND READ, MR. BALAY EXPLAINED THAT HIS REQUEST FOR WITHDRAWAL OF THE BID WAS OCCASIONED BY THE DISCOVERY OF THE OMISSION, IN COMPILING THE BID, OF LAMINATED BEAMS REQUIRED IN THE CONSTRUCTION OF THE FACILITIES AND THAT THE COST OF SUCH BEAMS WAS APPROXIMATELY $70,000. SUBSEQUENTLY, AT A CONFERENCE HELD THAT AFTERNOON, MR. BALAY EXPLAINED THAT AFTER HIS PARTNER HAD DISCOVERED THE ERROR IN THE FIRM'S BID HE FOLLOWED HIM TO THE BID OPENING ROOM AND ADVISED HIM OF THE ERROR IN THE FIRM'S BID.

IN A CONFIRMING NOTARIZED LETTER DATED SEPTEMBER 18, 1961, THE COMPANY STATED THAT IN ADDITION TO THE OMISSION OF THE LAMINATED BEAMS, IT HAD MADE OTHER ERRORS OF COMPUTATION IN ITS BID AND THAT THE CORRECT PRICE FOR THE PROJECT IS $2,993,768. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED ITS ESTIMATE SHEETS WHICH, YOU STATE, TEND TO SUPPORT ITS ALLEGATION OF ERROR. THE COMPANY ALSO SUBMITTED A REVISED ESTIMATE SHEET FOR THE WORK AND COPIES OF QUOTATIONS RECEIVED FROM CERTAIN SUBCONTRACTORS.

ON THE RECORD, THERE IS NO ROOM FOR DOUBT THAT THE COMPANY MADE ERRORS IN ITS BID, AS ALLEGED. ACCORDINGLY, SINCE THE ERRORS WERE ALLEGED AND EXPLAINED PRIOR TO AWARD, THE BID OF THE BALAY CONSTRUCTION COMPANY--- WHICH EVEN IF PROPER FOR CORRECTION WOULD NOT BE THE LOWEST BID ON THE PROJECT--- MAY BE DISREGARDED IN MAKING THE AWARD.