B-150095, APR. 8, 1963

B-150095: Apr 8, 1963

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TO ATLANTIC MAINTENANCE COMPANY: FURTHER REFERENCE IS MADE TO A LETTER DATED OCTOBER 2. BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH THE CONTRACT WAS AWARDED. AN AWARD WAS MADE TO YOU ON AUGUST 1. WAS FORWARDED TO OUR OFFICE BY STEPTOE AND JOHNSON REVIVING THE CLAIM IN THE REVISED AMOUNT OF $1. THAT IT IS YOUR BELIEF THAT THERE WERE THREE BIDS SUBMITTED IN RESPONSE TO INVITATION NO. 151-287-60 WHICH WERE LOWER THAN YOUR BID BUT THAT SUCH LOWER BIDDERS WERE ALLOWED TO WITHDRAW THEIR BIDS AND THAT THE AWARD OF CONTRACT NO. N151/265/17681A WAS MADE TO YOU OVER YOUR ORAL PROTEST. THE ATTORNEYS FURTHER STATE THAT THE CLAIM WHICH RELATES SOLELY TO ITEM NO. 2 OF THE INVITATION WAS BASED ON THE UNDERESTIMATION OF YOUR BID PRICE FOR ITEM NO. 2 WHICH RESULTED FROM THE ALLEGED ERRONEOUS 8.

B-150095, APR. 8, 1963

TO ATLANTIC MAINTENANCE COMPANY:

FURTHER REFERENCE IS MADE TO A LETTER DATED OCTOBER 2, 1962, WITH ENCLOSURE, FROM STEPTOE AND JOHNSON, SUBMITTING IN YOUR BEHALF A CLAIM FOR THE ADDITIONAL AMOUNT OF $1,985.39 UNDER CONTRACT NO. N151/265/17681A, DATED AUGUST 1, 1960, BY REASON OF AN ERROR ALLEGED TO HAVE BEEN MADE IN YOUR BID UPON WHICH THE CONTRACT WAS AWARDED.

IN RESPONSE TO INVITATION NO. 151-287-60, ISSUED ON MAY 20, 1960, BY THE PURCHASE DIVISION, SUPPLY DEPARTMENT, PHILADELPHIA NAVAL SHIPYARD, YOU SUBMITTED A BID DATED JUNE 2, 1960, OFFERING TO PERFORM CERTAIN JANITORIAL SERVICES AS SPECIFIED AT THE U.S. NAVAL AIR STATION, LAKEHURST, NEW JERSEY, DURING THE PERIOD FROM JULY 1, 1960, THROUGH JUNE 30, 1961, FOR A TOTAL PRICE OF $31,176.68. AFTER AN EVALUATION OF ALL BIDS RECEIVED AND UPON THE SHOWING OF A SATISFACTORY PREAWARD SURVEY OF YOUR COMPANY, AN AWARD WAS MADE TO YOU ON AUGUST 1, 1960, ON THE BASIS OF THE LOWEST ACCEPTABLE AGGREGATE BID RECEIVED FOR THE FOUR ITEMS OF JANITORIAL SERVICE COVERED BY THE INVITATION IN THE TOTAL AMOUNT OF $31,176.68, WHICH CONSUMMATED CONTRACT NO. N151/265/17681A. IT APPEARS THAT ON OR ABOUT JUNE 15, 1962, OR ALMOST A YEAR AFTER COMPLETION OF THE WORK UNDER THIS CONTRACT, AN ATTORNEY FILED, IN YOUR BEHALF, A CLAIM FOR $9,348.24 UNDER THE CONTRACT BASED ON THE AREA COVERED BY ITEM NO. 2 OF THE CONTRACT ALLEGEDLY BEING A MUCH LARGER AREA THAN THAT SPECIFIED IN THE INVITATION. BY LETTER DATED JULY 10, 1962, ADDRESSED TO THE ATTORNEY, THE GOVERNMENT CONTRACTING OFFICER DISALLOWED THE CLAIM FOR THE REASONS SET FORTH IN THAT LETTER. A SUBSEQUENT LETTER DATED OCTOBER 2, 1962, WAS FORWARDED TO OUR OFFICE BY STEPTOE AND JOHNSON REVIVING THE CLAIM IN THE REVISED AMOUNT OF $1,985.39. THIS AMOUNT ALLEGEDLY REPRESENTS THE DIFFERENCE BETWEEN YOUR BID FOR ITEM NO. 2 UNDER YOUR 1961 FISCAL YEAR CONTRACT NO. N151/265/17681A AND THE AMOUNT OF YOUR UNSUCCESSFUL BID FOR THE FOLLOWING 1962 FISCAL YEAR BASED ON THE GREATER AREA INVOLVED.

STEPTOE AND JOHNSON STATE IN THEIR LETTER OF OCTOBER 2, 1962, THAT IT IS YOUR BELIEF THAT THERE WERE THREE BIDS SUBMITTED IN RESPONSE TO INVITATION NO. 151-287-60 WHICH WERE LOWER THAN YOUR BID BUT THAT SUCH LOWER BIDDERS WERE ALLOWED TO WITHDRAW THEIR BIDS AND THAT THE AWARD OF CONTRACT NO. N151/265/17681A WAS MADE TO YOU OVER YOUR ORAL PROTEST. THE ATTORNEYS FURTHER STATE THAT THE CLAIM WHICH RELATES SOLELY TO ITEM NO. 2 OF THE INVITATION WAS BASED ON THE UNDERESTIMATION OF YOUR BID PRICE FOR ITEM NO. 2 WHICH RESULTED FROM THE ALLEGED ERRONEOUS 8,286 SQUARE FEET BEING SHOWN ON THE INVITATION FOR THIS ITEM INSTEAD OF THE 22,650 SQUARE FEET THAT ALLEGEDLY WERE CONTAINED IN THE AREA. STEPTOE AND JOHNSON CONTEND THAT THE GOVERNMENT CONTRACTING OFFICER WAS ON NOTICE OF PROBABLE ERROR IN ITEM NO. 2 OF YOUR BID SINCE THE COMPANY THAT PERFORMED THE CONTRACT DURING THE PRECEDING FISCAL YEAR HAD QUOTED A PRICE FOR THE ITEM THAT WAS APPROXIMATELY DOUBLE THAT OF YOUR BID; ALSO, SINCE THREE LOWER BIDDERS HAD BEEN PERMITTED TO WITHDRAW THEIR BIDS. THE ATTORNEYS ALSO ADVISE THAT YOU HAD NO KNOWLEDGE OF THE ERROR UNTIL THE INVITATION FOR THE FOLLOWING FISCAL YEAR WAS ISSUED.

THE DEPARTMENT OF THE NAVY REPORTS THAT THE RECORD DOES NOT SUBSTANTIATE YOUR BELIEF THAT THREE OTHER BIDDERS OFFERING LOWER PRICES THAN YOUR OWN BID WERE PERMITTED TO WITHDRAW THEIR BIDS. IN THIS REGARD, THE NAVY ADVISES THAT UPON RECEIPT OF SATISFACTORY EVIDENCE THAT ONE OF THE OTHER BIDDERS, THE METROPOLITAN MAINTENANCE COMPANY, HAD MADE AN ERROR IN ITS LOW AGGREGATE BID OF $28,068, THAT COMPANY WAS ALLOWED TO WITHDRAW ITS BID. NAVY ALSO ADVISES THAT THE BID OF THE P AND W BUILDING MAINTENANCE AND WINDOW CLEANING COMPANY WAS REJECTED AS BEING AMBIGUOUS AND INCAPABLE OF EVALUATION. IN ADDITION, THE ABSTRACT OF BIDS SEEMS TO INDICATE THE RECEIPT OF SEVERAL LATE BIDS WHICH UNDOUBTEDLY COULD NOT BE PROPERLY CONSIDERED. THE DEPARTMENT OF THE NAVY ADVISES THAT AFTER EVALUATION OF ALL BIDS RECEIVED AN AWARD WAS MADE TO YOU ON THE BASIS OF THE LOWEST AGGREGATE BID RECEIVED, IN ACCORDANCE WITH THE "AWARD BY AGGREGATE" PROVISION OF THE SPECIFICATIONS, AND THAT THERE IS NO EVIDENCE OF RECORD OF ANY CONVERSATIONS BETWEEN YOU AND THE CONTRACTING OFFICER REGARDING YOUR PROTEST OF ANY AWARD OF THE CONTRACT BEING MADE TO YOU. THUS, WE FIND NOTHING TO INDICATE ANY IRREGULARITY IN THE AWARDING OF CONTRACT NO. N151/265/17681A TO YOU.

WITH RESPECT TO THE CONTENTIONS OF STEPTOE AND JOHNSON AS TO THE CONTRACTING OFFICER BEING CHARGEABLE WITH CONSTRUCTIVE NOTICE OF THE ALLEGED ERROR IN ITEM NO. 2 OF YOUR BID, THE RECORD SHOWS THAT YOUR BID WAS CONSIDERED FOR AWARD ON AN AGGREGATE BASIS AND THAT YOUR BID PRICE OF $31,176.68 WAS NOT OUT OF LINE WITH THE OTHER BIDS RECEIVED WHICH ARE REPORTED TO HAVE RANGED FROM $33,505 TO $47,664. MOREOVER, EVEN IF IT MAY BE ASSUMED THAT THE GOVERNMENT CONTRACTING OFFICER OWED THE DUTY TO EVALUATE EACH INDIVIDUAL ITEM OF THE RESPECTIVE BIDS UNDER THE SUBJECT INVITATION SEPARATELY, WHICH WOULD BE QUESTIONABLE IN VIEW OF THE REQUIREMENT TO MAKE THE AWARD ON AN AGGREGATE BASIS, IT SHOULD BE NOTED THAT THE DEPARTMENT OF THE NAVY REPORTS THAT EVEN HERE THE BID SUBMITTED BY YOU FOR ITEM NO. 2 WAS HIGHER THAN FOUR OTHER BIDS RECEIVED FOR THAT ITEM. ALSO, THE FACT, AS CONTENDED BY STEPTOE AND JOHNSON, THAT THE COMPANY WHICH PERFORMED THE CONTRACT DURING THE PRECEDING FISCAL YEAR HAD BID A PRICE FOR ITEM NO. 2 THAT WAS APPROXIMATELY DOUBLE THAT OF YOUR BID WOULD APPEAR TO MAKE LITTLE DIFFERENCE, SINCE IT IS OBVIOUS THAT PRICES FOR SUCH INDIVIDUAL ITEMS VARY GREATLY AS INDICATED BY THE FURTHER FACT THAT THE SUCCESSFUL BIDDER FOR THE FOLLOWING 1962 FISCAL YEAR SUBMITTED A BID FOR ITEM NO. 2 OF $481.49. THIS PRICE WAS LOWER THAN THE BID QUOTED BY YOU FOR ITEM NO. 2 NOTWITHSTANDING THE FACT THAT SUCH BID WAS SUBMITTED AT A LATER DATE WHEN THE NORMAL EXPECTANCY WOULD BE TO EXPERIENCE SOME RISE IN LABOR COSTS, ETC., AND WHEN ITEM NO. 2 CLEARLY SHOWED AN INCREASE IN THE AREA INVOLVED TO 17,883 SQUARE FEET. IN VIEW OF THESE CONDITIONS, WE FIND NO LEGAL BASIS FOR CHARGING THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE PROBABILITY OF AN ERROR IN ITEM NO. 2 OF YOUR BID.

OF EQUAL, IF NOT EVEN MORE IMPORTANCE, IN THIS MATTER IS THE RESPONSIBILITY THAT YOU HAD ASSUMED OF ACQUAINTING YOURSELF WITH CERTAIN MATERIAL ASPECTS OF EXISTING CONDITIONS. IN THIS REGARD, A PERTINENT PART OF THE INVITATION FOR BIDS EXPRESSLY PROVIDED THAT "THE CONTRACTOR SHALL SATISFY HIMSELF AS TO THE EXACT NATURE OF THE WORK AND AREAS TO BE CLEANED.' ITEM NO. 2 SHOWED JANITORIAL SERVICES TO BE PROVIDED AT THE BACHELOR OFFICERS' QUARTERS, BUILDINGS 33 AND 167, COVERING AN ESTIMATED QUANTITY OF 8,286 SQUARE FEET, AND THE 75-ROOM, 28-BATHROOMS, AND ALL- CORRIDOR REQUIREMENTS IN THESE TWO BUILDINGS WERE SPECIFICALLY SPELLED OUT ON PAGE 11 OF THE INVITATION. THUS, THERE CAN BE NO DOUBT THAT THE AREA OF THE WORK COVERED BY ITEM NO. 2 WAS SPECIFICALLY IDENTIFIED. NEITHER CAN THERE BE ANY DOUBT, IN VIEW OF THE EXPRESS LANGUAGE OF THE FOREGOING QUOTED PROVISION OF THE CONTRACT, THAT IT WAS YOUR OBLIGATION TO FULLY ACQUAINT YOURSELF WITH ALL DETAILS OF THE AREA INVOLVED. IN FACT, THE PREAWARD SURVEY SHOWED THAT REPRESENTATIVES OF YOUR COMPANY HAD VISITED THE NAVAL AIR STATION AT LAKEHURST TO DETERMINE THE EXACT NATURE OF THE WORK AREAS TO BE SERVICED, ETC., AND THAT YOUR COMPANY HAD DEMONSTRATED A COMPREHENSIVE UNDERSTANDING OF ALL OF THE REQUIREMENTS OF THE INVITATION FOR BIDS IN THIS CONNECTION.

IN VIEW OF THE FOREGOING, WE ONLY REASONABLY MAY CONCLUDE THAT YOUR BID WAS PROPERLY ACCEPTED AS THE LOWEST ACCEPTABLE AGGREGATE BID RECEIVED AND, CONSEQUENTLY, THERE IS NO LEGAL BASIS FOR GRANTING YOU ANY RELIEF IN THE MATTER.

ACCORDINGLY, YOUR CLAIM OF $1,985.39 UNDER CONTRACT NO. N151/265/17681A IS DISALLOWED.