B-148886, MAY 25, 1962

B-148886, MAY 25, 1962

TO DIRECTOR, OFFICE OF SALINE WATER, DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 10, 1962, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO THE BID SUBMITTED BY POTTS-BROWN COMPANY UNDER SPECIFICATION NO. 244.

THE INVITATION, AS AMENDED, REQUESTED BIDS TO BE OPENED AT 3 P.M. (EST) ON APRIL 24, 1962, FOR THE CONSTRUCTION OF THE PILOT PLANTS TEST FACILITY AT WRIGHTSVILLE BEACH, NORTH CAROLINA. PARAGRAPH 1.7 OF THE INVITATION IS THE "BIDDING SCHEDULE.' BIDDERS WERE TO SHOW IN PARAGRAPH 1.7.2.1 THE AMOUNT OF THEIR QUOTATIONS. PARAGRAPH 1.7.4 ENTITLED "BID COMPARISON" PROVIDES "BID COMPARISON WILL BE PREPARED BY THE CONTRACTING OFFICER AS FOLLOWS:

"/A) LUMP SUM PRICE FOR PILOT PLANTS TEST FACILITIES

COMPLETE $ ----------------

"/B) BUY AMERICAN ACT EXTRA $ ----------------

"/C) TOTAL BID PRICE $ ---------------- "

IF BIDDERS PROPOSED TO FURNISH OR USE NONDOMESTIC MATERIALS AS DEFINED IN THE "BUY AMERICAN CT" THEY WERE TO FILL IN THE FORM (PARAGRAPH 1.9), CONSTITUTING PAGES 1-17 AND 1-18 OF THE INVITATION SETTING FORTH THE TYPE OF MATERIALS AND THE COST THEREOF.

THE EIGHT BIDS RECEIVED, TOGETHER WITH TELEGRAMS FROM FOUR OF THE BIDDERS MODIFYING THEIR FORMAL MAIL BIDS, WERE OPENED AT THE APPOINTED TIME. THE APPARENT LOW BID WAS SUBMITTED BY THE J. A. JONES CONSTRUCTION COMPANY IN THE AMOUNT OF $833,000. THE FORMAL BID OF POTTS-BROWN COMPANY QUOTED A PRICE OF $1,250,000 IN PARAGRAPH 1.7.2.1 OF THE BIDDING SCHEDULE AND IN PARAGRAPH 1.7.4 (BID COMPARISON) THERE ARE THE FIGURES OF $1,250,000 ON LINE (A), $25,000 ON LINE (B) AND $1,275,000 ON LINE (C). HOWEVER, THE BID DOES NOT SHOW IN PARAGRAPH 1.9 THAT THE BIDDER PROPOSED TO FURNISH ANY NONDOMESTIC MATERIALS. THE POTTS-BROWN COMPANY'S FORMAL BID WAS MODIFIED BY TELEGRAM RECEIVED PRIOR TO THE OPENING PROVIDING FOR A DEDUCTION OF THE SUM OF $42,000 AND STATING "BUY AMERICAN ACT NO EXTRA.' THE EFFECT OF SUCH TELEGRAM IS TO REDUCE THE BID PRICE SHOWN IN PARAGRAPH 1.7.2.1 FROM $1,250,000 TO $1,208,000 AND TO ELIMINATE THE $25,000 SHOWN IN PARAGRAPH 1.7.4 (B). ACTUALLY BIDDERS WERE NOT SUPPOSED TO FILL IN PARAGRAPH 1.7.4 AND THE PURPOSE OF INSERTING THE PARTICULAR AMOUNT SHOWN BY POTTS-BROWN COMPANY IN 1.7.4 (B) IS NOT READILY UNDERSTANDABLE. HOWEVER, ANY QUESTION WITH RESPECT THERETO IS ELIMINATED BY THE STATEMENT IN THE TELEGRAPHIC MODIFICATION "BUY AMERICAN ACT NO EXTRA.'

IT IS REPORTED THAT AT 4 P.M. (EST) ON THE DAY OF THE OPENING, APRIL 24, 1962, MR. POTTS OF THE POTTS-BROWN COMPANY ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT THE TELEGRAM READ AT THE OPENING SHOULD HAVE INDICATED A DEDUCTION FROM THE MAIL BID OF $425,000 INSTEAD OF $42,000. INFORMATION WAS RECEIVED FROM WESTERN UNION BY TELEPHONE THAT THE AMOUNT SHOWN IN THE TELEGRAM WAS ERRONEOUS AND SHOULD HAVE READ $425,000. THIS WAS CONFIRMED BY WESTERN UNION TELEGRAPH COMPANY IN A LETTER DATED APRIL 25, 1962, AND SUBSEQUENTLY WESTERN UNION FURNISHED A VERIFAX COPY OF THE ACTUAL TELEGRAM FILED BY THE POTTS BROWN COMPANY AT 12:05 P.M., APRIL 24, 1962, IN CHARLOTTE, NORTH CAROLINA, FOR TRANSMITTAL TO THE OFFICE OF SALINE WATER, WASHINGTON, D.C. SAID COPY READS ,RE OUR BID CONTRACT NUMBER 14-01-0001- 244 DEDUCT THE SUM OF $25,000.00 BUY AMERICAN ACT NO RA.'

IN DECISION OF AUGUST 28, 1961, 41 COMP. GEN. 165, IT WAS HELD, QUOTING FROM THE SYLLABUS AS FOLLOWS:

"AN ERROR MADE BY A TELEGRAPH COMPANY IN FAILING TO TRANSMIT TO A CONTRACTING AGENCY THE CORRECT AMOUNT OF A BID REDUCTION OFFER WHICH WOULD HAVE MADE THE OFFEROR THE LOW BIDDER IS AN ERROR MADE BY AN INDEPENDENT AGENT OVER WHICH THE BIDDER DOES NOT HAVE ANY SUPERVISORY CONTROL SO THAT IN SUCH CASES WHERE EVIDENCE CONCLUSIVELY ESTABLISHES THE CORRECT MODIFICATION AND THAT THE MESSAGE WAS TIMELY MADE, THE RULE AGAINST CORRECTION OF ERRORS WHEN THE RESULT IS THE DISPLACEMENT OF ANOTHER BIDDER IS NOT FOR APPLICATION, AND THEREFORE, CORRECTION OF THE BID IS PERMITTED.'

IN THE INSTANT CASE THE EVIDENCE CLEARLY ESTABLISHES THAT THE POTTS BROWN COMPANY TIMELY FILED A MESSAGE WITH WESTERN UNION IN CHARLOTTE, NORTH CAROLINA, FOR TRANSMITTAL TO THE CONTRACTING AGENCY IN WASHINGTON, D.C., REDUCING ITS WRITTEN BID BY $425,000. ACCORDINGLY YOU ARE ADVISED THAT THE BID OF POTTS-BROWN COMPANY MAY BE CONSIDERED AS BEING IN THE AMOUNT OF $825,000 ($1,250,000 MINUS $425,000) AND THE BID SHOULD BE CONSIDERED FOR AWARD ON THAT BASIS.