B-152315, SEP. 4, 1963

B-152315: Sep 4, 1963

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED AUGUST 14. THE TWO OTHER BIDS ON THE STORAGE TANK WERE IN THE AMOUNTS OF $13. 250 AND THE GOVERNMENT'S ESTIMATE WAS $11. THE BID OF THE GARLAND STEEL COMPANY WAS ACCEPTED ON AUGUST 6. THE COMPANY WAS ONLY INTERESTED IN RECOVERING THE COST OF THE NECESSARY ADDITIONAL MATERIALS REQUIRED FOR THE CONSTRUCTION OF THE STORAGE TANK. THAT THE REPRESENTATIVES WERE INFORMED THAT THE COMPANY SHOULD SUBMIT A STATEMENT IN WRITING EXPLAINING THE ERROR IN ITS BID. THE COMPANY ADVISED THAT ITS BID PRICE WAS BASED ON FURNISHING A TANK WITH A HEIGHT OF 32 FEET AND A DIAMETER OF 21 FEET RATHER THAN 26 FEET WHICH. WOULD BE NECESSARY FOR THE TANK TO HAVE THE REQUIRED CAPACITY OF 125.

B-152315, SEP. 4, 1963

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED AUGUST 14, 1963, WITH ENCLOSURE, FROM THE ASSISTANT AREA DIRECTOR (ADM.) (CONTRACTING OFFICER), BUREAU OF INDIAN AFFAIRS, PHOENIX, ARIZONA, REQUESTING A DECISION AS TO WHETHER THE RELIEF SOUGHT BY THE GARLAND STEEL COMPANY, PHOENIX,ARIZONA, UNDER CONTRACT NO. 14-20-0450-4611 MAY BE GRANTED.

THE PHOENIX AREA OFFICE, BUREAU OF INDIAN AFFAIRS, BY SPECIFICATIONS NO. PM-450-64-23A-2, REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED FOR THE CONSTRUCTION OF A 125,000 GALLON DOMESTIC WATER STEEL STORAGE TANK AT FORT APACHE INDIAN AGENCY, WHITERIVER, ARIZONA. IN RESPONSE THE GARLAND STEEL COMPANY SUBMITTED A BID DATED AUGUST 1, 1963, OFFERING TO CONSTRUCT THE STORAGE TANK AND TO FURNISH THE NECESSARY ACCESSORIES FOR THE LUMP SUM OF $9,200. THE TWO OTHER BIDS ON THE STORAGE TANK WERE IN THE AMOUNTS OF $13,360 AND $17,250 AND THE GOVERNMENT'S ESTIMATE WAS $11,000. THE BID OF THE GARLAND STEEL COMPANY WAS ACCEPTED ON AUGUST 6, 1963.

IN HIS LETTER OF AUGUST 14, 1963, THE CONTRACTING OFFICER STATES THAT ON AUGUST 7, 1963, REPRESENTATIVES OF THE GARLAND STEEL COMPANY CONTRACTED THE ACTING AREA PLANT MANAGEMENT OFFICER AND ALLEGED THAT THE COMPANY HAD MADE AN ERROR OF $4,000 IN ITS BID ON THE STORAGE TANK; THAT THE REPRESENTATIVES STATED THAT ALTHOUGH THE COMPANY HAD MADE AN ERROR IN THE AMOUNT OF $4,000, THE COMPANY WAS ONLY INTERESTED IN RECOVERING THE COST OF THE NECESSARY ADDITIONAL MATERIALS REQUIRED FOR THE CONSTRUCTION OF THE STORAGE TANK; AND THAT THE REPRESENTATIVES WERE INFORMED THAT THE COMPANY SHOULD SUBMIT A STATEMENT IN WRITING EXPLAINING THE ERROR IN ITS BID.

BY LETTER DATED AUGUST 12, 1963, THE COMPANY ADVISED THAT ITS BID PRICE WAS BASED ON FURNISHING A TANK WITH A HEIGHT OF 32 FEET AND A DIAMETER OF 21 FEET RATHER THAN 26 FEET WHICH, IT STATED, WOULD BE NECESSARY FOR THE TANK TO HAVE THE REQUIRED CAPACITY OF 125,000 GALLONS. THE COMPANY REQUESTED THAT THE CONTRACT PRICE OF THE STORAGE TANK BE INCREASED BY $940 TO COVER THE ACTUAL COST OF THE ADDITIONAL MATERIALS REQUIRED FOR THE CONSTRUCTION OF THE LARGER STORAGE TANK. IN SUPPORT OF ITS REQUEST FOR AN INCREASE, THE COMPANY SUBMITTED ITS ORIGINAL AND REVISED ESTIMATE SHEETS.

IN ITS LETTER OF AUGUST 12, 1963, THE COMPANY STATES THAT IT QUALIFIED ITS BID ON THE FACE SHEET OF ITS BID, AS FOLLOWS: "ONE 125,000 GAL. WATER STORAGE TANK 21 FEET 0 INCHES DIA BY 32 FEET 0 INCHES HIGH ERECTED ON FOUNDATION SUPPLIED BY OTHERS INCLUDED ARE ALL ACCESSORIES AS SPECIFIED. TANK TO BE CLEANED BY WIRE BRUSHING AND PAINTED AS PER SPECIFICATIONS FOR THE SUM OF, NINE THOUSAND TWO HUNDRED DOLLARS $9,200.000.'

THE PRIMARY QUESTION FOR CONSIDERATION IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. PARAGRAPH 1A OF THE TECHNICAL PROVISIONS PROVIDES THAT THE STORAGE TANK SHALL HAVE A CAPACITY OF NOT LESS THAN 125,000 GALLONS AND PARAGRAPH 1D THEREOF PROVIDES THAT THE HEIGHT OF THE TANK SHALL NOT BE LESS THAN 32 FEET. THE PLANS (DRAWINGS) SHOW THE DIAMETER OF THE STORAGE TANK AS BEING 26 FEET. SINCE THE COMPANY INDICATED IN ITS BID THAT IT PROPOSED TO FURNISH A WATER STORAGE TANK MEASURING 21 FEET IN DIAMETER AND 32 FEET IN HEIGHT WHICH ADMITTEDLY WILL NOT HAVE A CAPACITY OF 125,000 GALLONS IT SEEMS CLEAR THAT THE BID OF THE GARLAND STEEL COMPANY IS NONRESPONSIVE TO THE INVITATION.

THE PROCUREMENT IN QUESTION IS GOVERNED BY SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 395, 41 U.S.C. 253 (B), WHICH PROVIDES IN PART THAT ,AWARD SHALL BE MADE * * * TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED * * *.' THE QUOTED LANGUAGE HAS BEEN HELD TO LIMIT AWARD WITH CERTAIN EXCEPTIONS NOT APPLICABLE HERE TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER. FURTHER, AWARD CONTRARY TO THAT RULE IS A NULLITY AND CONFERS NO RIGHTS ON THE CONTRACTOR AGAINST THE UNITED STATES. SEE 37 COMP. GEN. 330, 331; AND 40 ID. 679, 682. SEE ALSO PRESTEX INC. V. UNITED STATES, CT.CL. NO. 415-61, DECIDED JULY 12, 1963. IT IS OUR OPINION THAT SINCE THE BID OF THE GARLAND STEEL COMPANY WAS NONRESPONSIVE TO THE INVITATION, NO VALID CONTRACT WAS EVER AWARDED TO THE COMPANY. FURTHERMORE, THE RULE IS WELL SETTLED THAT A NONRESPONSIVE BID MAY NOT BE CORRECTED TO MAKE THE BID RESPONSIVE TO THE INVITATION. SEE 38 COMP. GEN. 819, 821; 40 ID. 432, 435.

ACCORDINGLY SINCE IT APPEARS THAT NO WORK HAS BEEN PERFORMED UNDER THE PURPORTED CONTRACT THE AWARD SHOULD BE CANCELLED WITHOUT LIABILITY TO EITHER PARTY.