B-152199, AUG. 30, 1963

B-152199: Aug 30, 1963

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TO NORTHERN IMPROVEMENT COMPANY: REFERENCE IS MADE TO A LETTER DATED AUGUST 2. INCLUDED THEREIN WERE ITEMS 19 AND 20 COVERING THE CONSTRUCTION OF CHAIN LINK FENCE (NEW AND RELOCATION OF CHAIN LINK FENCE. THE ESTIMATED QUANTITY UNDER ITEM 19 WAS SHOWN AS 640 LINEAL FEET AND UNDER ITEM 20 THE QUANTITY WAS SHOWN AS 530 LINEAL FEET. THREE BIDS WERE RECEIVED. THE BID OF ASHBACH CONSTRUCTION COMPANY WAS IN THE AMOUNT OF $294. YOUR BID WAS IN THE AMOUNT OF $294. IT IS STATED IN THE LETTER OF AUGUST 2. THE DATE BIDS WERE OPENED. YOU BECAME AWARE THAT THERE WAS A POSSIBLE ERROR IN THE GOVERNMENT'S ESTIMATED QUANTITIES FOR ITEMS 19 AND 20. WAS APPROXIMATELY 940 LINEAL FEET AND THE AMOUNT OF RELOCATED FENCE.

B-152199, AUG. 30, 1963

TO NORTHERN IMPROVEMENT COMPANY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 2, 1963, FROM YOUR ATTORNEYS, PROTESTING THE POSSIBLE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. NG32-006-63-3 ISSUED JUNE 25, 1963, FOR THE CONSTRUCTION OF AN AIRCRAFT PARKING APRON EXTENSION AT HECTOR FIELD, FARGO, NORTH DAKOTA.

THE CITED INVITATION SOLICITED BIDS--- TO BE OPENED JULY 25, 1963--- FOR PERFORMING 23 ITEMS OF WORK. THE "PRICE SCHEDULE" LISTED THE VARIOUS ITEMS AND THE ESTIMATED QUANTITIES AND SET FORTH THE UNITS TO BE USED FOR BID PURPOSES AND PAYMENT PURPOSES. INCLUDED THEREIN WERE ITEMS 19 AND 20 COVERING THE CONSTRUCTION OF CHAIN LINK FENCE (NEW AND RELOCATION OF CHAIN LINK FENCE, RESPECTIVELY. THE ESTIMATED QUANTITY UNDER ITEM 19 WAS SHOWN AS 640 LINEAL FEET AND UNDER ITEM 20 THE QUANTITY WAS SHOWN AS 530 LINEAL FEET. THREE BIDS WERE RECEIVED. THE BID OF ASHBACH CONSTRUCTION COMPANY WAS IN THE AMOUNT OF $294,101. YOUR BID WAS IN THE AMOUNT OF $294,352.20 AND THE THIRD BIDDER SUBMITTED A BID IN THE AMOUNT OF $314,845.40. PRIOR TO OPENING OF BIDS ASHBACH HAD SUBMITTED A TELEGRAPHIC MODIFICATION OF ITS BID.

IT IS STATED IN THE LETTER OF AUGUST 2, 1963, FROM YOUR ATTORNEY, THAT ON JULY 25, 1963, THE DATE BIDS WERE OPENED, YOU BECAME AWARE THAT THERE WAS A POSSIBLE ERROR IN THE GOVERNMENT'S ESTIMATED QUANTITIES FOR ITEMS 19 AND 20. IN REVIEWING PAGE 9 OF THE SCALE PLANS FOR THE PROJECT YOU ASCERTAINED THAT THE AMOUNT OF NEW FENCE (NEW), ITEM 19, WAS APPROXIMATELY 940 LINEAL FEET AND THE AMOUNT OF RELOCATED FENCE, ITEM 20, WAS APPROXIMATELY 680 LINEAL FEET, INSTEAD OF 640 LINEAL FEET AND 530 LINEAL FEET AS SHOWN BY THE GOVERNMENT IN THE INVITATION FOR BIDS. ASHBACH'S BID ON ITEMS 19 AND 20 WAS $4.50 AND $2.20, RESPECTIVELY, PER LINEAL FOOT WHILE YOUR BID WAS $3.40 AND $1.80, RESPECTIVELY, PER LINEAL FOOT. THE ADMINISTRATIVE OFFICE REPORTS THAT THE FOOTAGE OF NEW FENCE ACTUALLY REQUIRED, AS COMPUTED FROM THE DRAWINGS, WILL BE 946 WHILE 685 FEET OF FENCE WILL BE REQUIRED TO BE RELOCATED. IF THESE REVISED FIGURES ARE USED IN COMPUTING THE TOTAL BID PRICE, THE BID OF ASHBACH WILL BE $295,819 AND YOUR TOTAL BID WILL BE $295,671.60 OR A DIFFERENCE OF $147.40.

THE MATTER RESOLVES ITSELF INTO THE QUESTION AS TO WHETHER THE AWARD SHOULD BE MADE TO YOUR FIRM BASED ON A RECOMPUTATION OF THE BIDS TO REFLECT THE "NEW" ESTIMATED QUANTITIES OF FENCING OR WHETHER THIS AWARD SHOULD BE MADE TO ASHBACH ON THE BASIS OF THE BIDS AS ORIGINALLY SUBMITTED DISREGARDING THE "NEW" ESTIMATE OF REQUIRED FENCING.

IF THE CONTRACTING OFFICER WERE TO RECOMPUTE THE BIDS ON THE BASIS OF THE "NEW" ESTIMATED QUANTITIES OF FENCING, HE MUST ASSUME, OF COURSE, THAT THE UNIT PRICES QUOTED BY THE SEVERAL BIDDERS FOR FENCING WOULD HAVE REMAINED THE SAME FOR THE LARGER QUANTITY OF FENCING. WHILE IT IS ARGUED IN YOUR BEHALF THAT THE SCALE PLANS FOR THE FENCE WERE RECEIVED BY ALL OF THE BIDDERS AND THAT "EACH EITHER KNEW OR SHOULD HAVE KNOWN THE ACTUAL AMOUNT OF FENCING REQUIRED," NEVERTHELESS IT IS SUBMITTED IN THE LETTER OF AUGUST 2 THAT YOU DID NOT BRING THIS MATTER TO THE ATTENTION OF THE CONTRACTING OFFICER UNTIL JULY 27, 1963, OR TWO DAYS AFTER THE BIDS WERE OPENED. THE THEORY OF RECOMPUTING THE ESTIMATES OF THE VARIOUS ITEMS OF WORK WERE TO BE FOLLOWED IT WOULD BE NECESSARY, BEFORE AN AWARD COULD BE MADE, TO RECOMPUTE ALL BIDS BY RECHECKING EACH ITEM OF THE SCHEDULE TO SEE IF IT WAS POSSIBLE TO DEVELOP A BETTER ESTIMATE AND THEN APPLY THE UNIT PRICES SUBMITTED BY EACH BIDDER TO THESE NEWLY DEVELOPED ESTIMATES. SUCH A METHOD OF EVALUATING BIDS WAS OBVIOUSLY NOT INTENDED AT THE TIME THE INVITATION WAS ISSUED NOR WOULD SUCH A PROCEDURE BE FAIR TO THE BIDDERS WHO HAD A RIGHT TO EXPECT THAT THEIR BIDS WOULD BE CONSIDERED AS SUBMITTED. WHILE YOU CONTEND THAT THE CONTRACTING OFFICER SHOULD CONSIDER AN ADMITTEDLY MORE ACCURATE ESTIMATE WITH REFERENCE TO TWO ITEMS OF THE SCHEDULE YOU ARE WILLING TO ACCEPT, WITHOUT CHECKING, THE GOVERNMENT'S ESTIMATES ON THE REMAINING ITEMS BASED ON ESTIMATED QUANTITIES. FOR EXAMPLE, IF THE GOVERNMENT'S ESTIMATED QUANTITY ON ITEMS 12, 13 AND 14 SHOULD PROVE TO BE LOWER THAN ACTUALLY WILL BE REQUIRED--- YOUR BID PRICES BEING HIGHER THAN ASHBACH'S BID PRICES--- THE COST TO THE GOVERNMENT IF IT ACCEPTED YOUR BID COULD BE CONSIDERABLY MORE THAN $147.40, WHICH IS THE DIFFERENCE BETWEEN ASHBACH'S BID AND YOUR BID, AS RECOMPUTED IN ACCORDANCE WITH YOUR CONTENTION. THE APPROPRIATION OF THE AMOUNT OF WORK MAY NOT BE ACCURATE BUT THIS FACT IS RECOGNIZED BY THE GOVERNMENT AND BY THE BIDDERS. TO THIS END THE SPECIFICATIONS INCLUDE A PROVISION IN THE "PAYMENT" ARTICLE (SW-03) FOR AN ADJUSTMENT IN THE CONTRACT PRICE BASED ON ACTUAL PERFORMANCE.

WHILE THE INSTANT INVITATION DID NOT CONTAIN DEFINITE LANGUAGE TO THE EFFECT THAT THE EVALUATION OF THE BIDS WOULD BE ON THE BASIS OF A TOTAL LUMP SUM FOR THE ITEMS INCLUDED IN THE AWARD, IT IS BELIEVED THAT THE INVITATION AS ISSUED WAS SUFFICIENTLY DEFINITE TO APPRISE ALL INTERESTED BIDDERS THAT AWARD OF THE CONTRACT WOULD BE MADE TO THE LOWEST RESPONSIBLE BIDDER SUBMITTING THE LOWEST BID BASED ON THE ESTIMATES SHOWN IN THE SCHEDULE. TO MAKE AWARD ON SOME OTHER BASIS WOULD BE AN UNJUSTIFIED DEPARTURE FROM ESTABLISHED POLICY. WITH REGARD TO THE CASE CONSIDERED IN 40 COMP. GEN. 561, REFERRED TO IN YOUR LETTER, THE REPORTED FACTS SHOW THAT THE FIRM WHICH WAS AWARDED THE CONTRACT WAS THE LOW BIDDER AND REMAINED THE LOW BIDDER WHEN THE BIDS WERE EVALUATED ON THE CORRECT QUANTITY ESTIMATE WHICH WAS ABOUT TEN TIMES HIGHER THAN THAT SHOWN IN THE SCHEDULE AND AS TO WHICH IT WAS REPORTED BY THE ADMINISTRATIVE OFFICE INVOLVED THAT ALL BIDDERS WERE AWARE OF THE ERROR AND BID ON THE SAME BASIS.

WITH REGARD TO YOUR REQUEST THAT THE ASHBACH TELEGRAPHIC MODIFICATION OF ITS BID ON ITEM 15 BE REVIEWED TO ASCERTAIN WHETHER IT WAS INEFFECTIVE BECAUSE OF A VIOLATION OF THE PROVISIONS OF PARAGRAPH 5 (D) OF STANDARD FORM 22 PROHIBITING A DISCLOSURE OF THE ORIGINAL OR REVISED BID, THE COPY OF THE TELEGRAM INVOLVED SHOWS ONLY THAT THE PRICE ON ITEMS 15 WAS TO BE REDUCED BY $3.20 PER CUBIC YARD.

IN VIEW OF THE FOREGOING, AND IF OTHERWISE PROPER, WE FIND NO BASIS FOR DISAGREEING WITH THE RECOMMENDATION OF THE OFFICE OF THE CHIEF, NATIONAL GUARD BUREAU, THAT THE CONTRACT SHOULD BE AWARDED TO ASHBACH AND YOUR PROTEST MUST THEREFORE BE DENIED.

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