B-148279, MAR. 23, 1962

B-148279: Mar 23, 1962

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 27. SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND WERE OPENED AUGUST 15. IT WAS REPORTED THAT THE MODIFIED BID WAS APPROXIMATELY 7 1/2 PERCENT OVER THE GOVERNMENT ESTIMATE FOR THE WORK. A CONTRACT WAS AWARDED TO THE BERING COMPANY UNDER DATE OF AUGUST 25. NOTICE OF THE AWARD WAS RECEIVED BY THE CONTRACTOR ON AUGUST 27. NOTICE TO PROCEED WAS MAILED TO THE CONTRACTOR ON SEPTEMBER 5. WAS CERTIFIED BY THE COMPANY AS HAVING BEEN RECEIVED ON SEPTEMBER 7. THE WORK TO BE PERFORMED UNDER THE CONTRACT WAS TO COMMENCE WITHIN 15 CALENDAR DAYS AFTER THE RECEIPT BY THE CONTRACTOR OF THE NOTICE TO PROCEED AND WAS TO BE COMPLETED WITHIN 60 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF SUCH NOTICE.

B-148279, MAR. 23, 1962

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 27, 1962, WITH ENCLOSURES, FROM COLONEL E. F. HANSON, GS, CHIEF, CONTRACTS DIVISION, REQUESTING OUR DECISION CONCERNING THE ACTION TO BE TAKEN BY YOUR DEPARTMENT CONNECTION WITH A MISTAKE IN BID ALLEGED BY JOHN BRAGG, D/B/A THE BERING COMPANY, FAIRBANKS, ALASKA, AFTER THE AWARD OF CONTRACT NO. DA-95-50 7-ENG-1607, DATED AUGUST 25, 1961, FOR THE RELOCATION OF PUMP HOUSE AT NIKE SITE LOVE, ALASKA.

THE RECORD INDICATES THAT BY INVITATION NO. ENG-95-507-62-11, DATED JULY 31, 1961, THE U.S. ARMY ENGINEER DISTRICT, ALASKA, REQUESTED BIDS FOR FURNISHING THE WORK REQUIRED FOR MOVING THE EXISTING PUMPHOUSE BUILDING APPROXIMATELY 1,500 FEET TO A NEW LOCATION, INSTALLING THE SAME ON A CONCRETE FOUNDATION WITH CONCRETE SLAB, REMOVING AND REINSTALLING OR SALVAGING EXISTING MECHANICAL EQUIPMENT AND ELECTRICAL EQUIPMENT, ETC. SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND WERE OPENED AUGUST 15, 1961. THE BERING COMPANY SUBMITTED A BID IN THE AMOUNT OF $45,000, SUBSEQUENTLY MODIFIED BY A TELEGRAM INDICATING A DECREASE IN THE AMOUNT BID BY $3,852, AND THUS RESULTING IN A CORRECTED BID PRICE OF $41,148--- THE LOWEST BID RECEIVED. THE BID PROPERLY ACKNOWLEDGED THE RECEIPT OF CERTAIN ADDENDA. IT WAS REPORTED THAT THE MODIFIED BID WAS APPROXIMATELY 7 1/2 PERCENT OVER THE GOVERNMENT ESTIMATE FOR THE WORK.

A CONTRACT WAS AWARDED TO THE BERING COMPANY UNDER DATE OF AUGUST 25, 1961, AND NOTICE OF THE AWARD WAS RECEIVED BY THE CONTRACTOR ON AUGUST 27, 1961. NOTICE TO PROCEED WAS MAILED TO THE CONTRACTOR ON SEPTEMBER 5, 1961, AND WAS CERTIFIED BY THE COMPANY AS HAVING BEEN RECEIVED ON SEPTEMBER 7, 1961. THE WORK TO BE PERFORMED UNDER THE CONTRACT WAS TO COMMENCE WITHIN 15 CALENDAR DAYS AFTER THE RECEIPT BY THE CONTRACTOR OF THE NOTICE TO PROCEED AND WAS TO BE COMPLETED WITHIN 60 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF SUCH NOTICE.

BY LETTER DATED AUGUST 23, 1961, THE CONTRACTOR ADVISED THE DIVISION ENGINEER THAT DELAY IN AWARD COULD SERIOUSLY DELAY PROGRESS IN THE PERFORMANCE OF THE CONTRACT AND WOULD RESULT IN HEAT AND PROTECTIVE MEASURES FOR CONCRETE; ALSO, THAT THE BID WAS NOT PREDICATED ON THIS COSTLY ITEM. IT IS OUR VIEW THAT THESE STATEMENTS BY THE CONTRACTOR CONCERNING THE RESULTS WHICH WOULD POSSIBLY FOLLOW A DELAY IN AWARD ARE NOT FOR CONSIDERATION SINCE UNDER THE TERMS OF BERING'S BID THE GOVERNMENT WAS GIVEN 60 DAYS FROM THE BID OPENING DATE (AUGUST 15, 1961) WITHIN WHICH TO MAKE AN AWARD. IT HAS BEEN NOTED THAT THE AWARD WAS MADE WITHIN TEN DAYS FROM THE BID OPENING DATE--- WELL WITHIN THE AUTHORIZED PERIOD.

IT WAS STATED FURTHER IN THE LETTER OF AUGUST 23, 1961, THAT THE COMPANY PREDICATED ITS BID ON USING NON-FROST SUSCEPTIBLE MATERIAL FOR THE BUILDING PAD LOCATED WITHIN A -MILE RADIUS FROM THE JOB SITE, AND THAT IF THIS MATERIAL WAS DISAPPROVED BY THE GOVERNMENT THE COMPANY WOULD BE FORCED TO CLAIM A MISTAKE IN BID. RESPECTING THIS STATEMENT THE CONTRACTING OFFICER POINTED OUT THAT THE BID IN QUESTION WAS NOT IN ANY WAY QUALIFIED, AND NEITHER DID IT CONTAIN ANY EXCEPTIONS TO THE SPECIFICATIONS; ALSO, THAT THE CONTRACTOR DID NOT ALLEGE A MISTAKE IN BID, BUT RATHER MERELY CLAIMED THAT IF CERTAIN CONDITIONS DEVELOPED A BID ERROR WOULD BE CLAIMED.

THERE ARE SEVERAL ADDITIONAL MATTERS REFERRED TO IN THE REPORT AND RECOMMENDATION OF THE CONTRACTING OFFICER, SUCH AS THE INCREASED COST OF THE EARTHWORK, THE REQUEST BY THE CONTRACTOR TO USE "DREDGE TAILINGS," THE CONTRACTOR'S CLAIM THAT DEMANDS WERE BEING MADE UPON HIM WHICH WERE ABOVE AND BEYOND THE CONTRACT REQUIREMENTS, AND HIS ATTEMPT TO APPEAL THE MATTER TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS. WITH THE EXCEPTION OF THE "ATTEMPTED APPEAL," IT APPEARS THAT THE MATTERS REFERRED TO WERE IN THE FIRST INSTANCE FOR CONSIDERATION BY THE CONTRACTING OFFICER. WITH RESPECT TO THE "APPEAL" THE CONTRACTING OFFICER PROPERLY POINTED OUT THAT HE HAD RENDERED NO FINAL DECISION IN THE MATTER AND THAT THE "APPEAL" WAS NOT PRESENTED TO THE CHIEF OF ENGINEERS; ALSO, THAT CLAIMS OF MISTAKES IN BID ARE NOT FOR CONSIDERATION BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS. THESE MATTERS DO NOT RELATE TO THE ALLEGED MISTAKE IN BID AND, ACCORDINGLY, WE PROCEED TO DISPOSITION OF THIS CASE WITHOUT FURTHER REFERENCE THERETO.

THE RECORD IN THIS CASE FAILS TO ESTABLISH THAT THE CONTRACTOR MADE A MISTAKE IN BID, NO SHOWING HAVING BEEN MADE BY THE CONTRACTOR AS TO THE AMOUNT OF THE MISTAKE OR WHAT THE INTENDED BID MAY HAVE BEEN. WE AGREE WITH THE VIEWS EXPRESSED BY THE CONTRACTING OFFICER THAT THE CONTRACTOR MADE AN ERROR OF JUDGMENT RESULTING IN A POSSIBLY IMPROVIDENT CONTRACT, AND THAT HE APPARENTLY FAILED TO OBTAIN A FIRM COMMITMENT FOR THE EARTHWORK INVOLVED. WE HAVE GIVEN CONSIDERATION TO THE MATTERS INVOLVED AND ON THE BASIS OF THE RECORD THERE IS NO ACTION WHICH OUR OFFICE MAY PROPERLY TAKE TO RELIEVE THE CONTRACTOR FROM HIS OBLIGATIONS UNDER THE CONTRACT.