B-149729, SEP. 4, 1962

B-149729: Sep 4, 1962

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HOUSING AND HOME FINANCE AGENCY: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 16. REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR ALLEGED BY TRI-STATE PAINTING COMPANY TO HAVE BEEN MADE IN ITS BID SUBMITTED PURSUANT TO INVITATION 5945 FOR THE RECONDITIONING AND PAINTING OF CERTAIN APARTMENTS IN EVANSVILLE. THE TRI-STATE BID FOR THE SUBJECT WORK WAS $59. THE GOVERNMENT'S ESTIMATED COST OF THE JOB WAS $60. THE CONTRACT WAS AWARDED TO TRI-STATE. THE ATTORNEY FURNISHED THE CONTRACTOR'S ORIGINAL WORKSHEETS AND AN AFFIDAVIT FROM A PARTNER IN THE FIRM EXPLAINING THAT HE FAILED TO TRANSFER FROM THE WORKSHEET FOR THE EXTERIOR PAINTING TO THE CONSOLIDATED WORKSHEET FROM WHICH THE BID WAS PREPARED THE AMOUNT OF $13.

B-149729, SEP. 4, 1962

TO THE ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 16, 1962, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR ALLEGED BY TRI-STATE PAINTING COMPANY TO HAVE BEEN MADE IN ITS BID SUBMITTED PURSUANT TO INVITATION 5945 FOR THE RECONDITIONING AND PAINTING OF CERTAIN APARTMENTS IN EVANSVILLE, INDIANA.

THE TRI-STATE BID FOR THE SUBJECT WORK WAS $59,032. THE OTHER TWO BIDDERS BID $79,776 AND $88,857.25. THE GOVERNMENT'S ESTIMATED COST OF THE JOB WAS $60,800.

ON JULY 19, 1962, THE CONTRACT WAS AWARDED TO TRI-STATE. IN LETTER DATED JULY 25, 1962, THE CONTRACTOR'S ATTORNEY ALLEGED THAT THE COMPANY MADE AN ERROR IN ITS BID IN THAT IT FAILED TO INCLUDE IN ITS PRICE THE AMOUNT IT INTENDED TO CHARGE FOR CERTAIN EXTERIOR PAINTING. SUBSEQUENTLY, THE ATTORNEY FURNISHED THE CONTRACTOR'S ORIGINAL WORKSHEETS AND AN AFFIDAVIT FROM A PARTNER IN THE FIRM EXPLAINING THAT HE FAILED TO TRANSFER FROM THE WORKSHEET FOR THE EXTERIOR PAINTING TO THE CONSOLIDATED WORKSHEET FROM WHICH THE BID WAS PREPARED THE AMOUNT OF $13,940 THAT HAD BEEN FIGURED FOR THAT WORK. WE HAVE BEEN ADVISED INFORMALLY BY A REPRESENTATIVE OF YOUR AGENCY THAT TRI-STATE HAS INDICATED THAT IT WOULD BE WILLING TO PERFORM THE WORK FOR THE CORRECTED PRICE OF $72,972.

CONSIDERING THE FACT THAT THE TWO BIDS RECEIVED IN ADDITION TO THE TRI- STATE BID ARE ONLY ABOUT $9,000 APART WHEREAS THE TRI-STATE BID, WHILE IN LINE WITH THE GOVERNMENT ESTIMATE, IS MORE THAN $20,000 LOWER THAN THE NEXT LOW BID, IT APPEARS THAT THE CONTRACTING OFFICER SHOULD HAVE SUSPECTED THAT THE GOVERNMENT ESTIMATE WAS UNUSUALLY CONSERVATIVE IN THE LIGHT OF THE OTHER BIDS RECEIVED AND THAT THERE WAS A POSSIBILITY OF ERROR IN THE LOW BID SUFFICIENT TO HAVE WARRANTED VERIFICATION BEFORE ACCEPTANCE OF THE BID. IN VIEW OF THE GREAT DISPARITY BETWEEN THE TRI-STATE BID AND THE OTHER BIDS RECEIVED, THERE IS SERIOUS DOUBT THAT THE ACCEPTANCE OF THE BID CONSTITUTED A VALID AND BINDING CONTRACT REQUIRING THE COMPANY TO PERFORM FOR THE AMOUNT QUOTED IN ITS BID. SEE ALTA ELECTRIC AND MECHANICAL COMPANY V. UNITED STATES, 90 CT.CL. 466, 476, AND KEMP V. UNITED STATES, 38 F.SUPP. 568.

HOWEVER, IT HAS CONSISTENTLY BEEN HELD BY OUR OFFICE THAT WHEN A MISTAKE IS ALLEGED PROMPTLY AFTER AWARD AND THERE HAS BEEN IMMEDIATELY PRESENTED CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, HOW IT OCCURRED, AND WHAT THE BID PRICES WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTERESTS OF THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED SO THAT THE GOVERNMENT MAY HAVE THE BENEFIT OF IT. B-123562, MAY 10, 1955.

THE EVIDENCE SUBMITTED BY THE BIDDER IN THIS CASE CLEARLY AND CONVINCINGLY ESTABLISHES THE ERROR AND THE INTENDED BID PRICE. THEREFORE, IN THESE CIRCUMSTANCES, THE CONTRACT AWARDED TO TRI-STATE MAY BE AMENDED TO SHOW THE ACCEPTANCE OF A BID IN THE AMOUNT OF $72,972.