B-153248, JAN. 29, 1964

B-153248: Jan 29, 1964

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FEDERAL HOUSING ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9. HENSON TO HAVE BEEN MADE IN HIS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 6605. BIDS UNDER THE INVITATION WERE OPENED ON DECEMBER 27. 792 WAS SUBMITTED BY MR. TWO OTHER BIDS WERE RECEIVED IN THE AMOUNTS OF $84. HENSON ADVISED THE CONTRACTING OFFICER AS FOLLOWS: "THE ATTACHED COPY OF TELEGRAM WHICH WAS RECEIVED BY ME AS AMENDMENT NO. 1. WAS GARBLED. ALSO SPECIFICATIONS WERE GARBLED. OR THE EXTERIOR STUCCO COMPLETE AND THAT IS THE WAY I HAVE INTERPRETED THE SPECIFICATIONS. SUCH REQUIREMENT WAS ADDED TO THE SPECIFICATIONS BY TELEGRAM OF DECEMBER 20. THE THIRD PARAGRAPH OF THIS PROVISION OF THE SPECIFICATIONS CONCERNS STUCCO SURFACES AND IS AS FOLLOWS: "ALL NEW STUCCO SURFACES AND DRYWALL OF GARAGE SHALL RECEIVE ONE PRIME COAT OF LATEX BASE PAINT AS SPECIFIED AND THIS SHALL NOT BE CONSTRUED AS A COAT OF PAINT.

B-153248, JAN. 29, 1964

TO MR. OSBORNE S. KOERNER, DIRECTOR, GENERAL SERVICES DIVISION, FEDERAL HOUSING ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1964, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR ALLEGED BY MR. GLENN H. HENSON TO HAVE BEEN MADE IN HIS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 6605, DATED DECEMBER 6, 1963, AS AMENDED, FOR GENERAL RECONDITIONING AND PAINTING OF 68 SINGLE DWELLINGS ON THE EXTERIOR AND 58 OF THE SAME DWELLINGS ON THE INTERIOR AT PARAMOUNT ESTATES, RIVERSIDE, CALIFORNIA.

BIDS UNDER THE INVITATION WERE OPENED ON DECEMBER 27, 1963, AND THE LOW BID IN THE AMOUNT OF $56,792 WAS SUBMITTED BY MR. HENSON ON THAT DATE. TWO OTHER BIDS WERE RECEIVED IN THE AMOUNTS OF $84,938 AND $89,400. LETTER DATED DECEMBER 31, 1963, MR. HENSON ADVISED THE CONTRACTING OFFICER AS FOLLOWS:

"THE ATTACHED COPY OF TELEGRAM WHICH WAS RECEIVED BY ME AS AMENDMENT NO. 1, WAS GARBLED. ALSO SPECIFICATIONS WERE GARBLED. I READ THE TELEGRAM AND SPECIFICATIONS AND FIGURED THE WORK ACCORDING TO THE WAY I READ THE SPECIFICATIONS.

"I DID NOT FIGURE ANY PAINTING OF THE EXTERIOR TRIM COMPLETE, OR THE EXTERIOR STUCCO COMPLETE AND THAT IS THE WAY I HAVE INTERPRETED THE SPECIFICATIONS.

"TO PAINT THE ENTIRE TRIM AND STUCCO COMPLETE ON 68 DWELLINGS, WOULD BE AN ADDITIONAL COST OF $22,100.00 WHICH WOULD MAKE MY TOTAL CONTRACT PRICE $78,892.00.'

THE SPECIFICATIONS AS ORIGINALLY ISSUED DID NOT INCLUDE THE APPLICATION OF A FINISH COAT OF PAINT TO EXTERIOR WOODWORK, BUT SUCH REQUIREMENT WAS ADDED TO THE SPECIFICATIONS BY TELEGRAM OF DECEMBER 20, 1963, WHICH CONSTITUTED AMENDMENT NO. 1 TO THE INVITATION. YOU STATE THAT THE TELEGRAM AS RELEASED TO THE TELEGRAPH COMPANY PROVIDED IN PERTINENT PART FOR THE ADDITION ON PAGE 13 OF THE SPECIFICATION OF THE NEW SENTENCE "THEREAFTER ALL WOODWORK SHALL RECEIVE A FINISH COAT OF TITANIUM-LEAD-ZINC AND OIL PAINT" AT THE END OF THE SECOND PARAGRAPH OF THE PROVISION CONCERNING EXTERIOR PAINTING - PREPARATION AND APPLICATION. THE PARAGRAPH PROVIDED:

"ALL BARE SURFACES OR SURFACES SANDED DOWN TO ORIGINAL WOOD SURFACES SHALL BE SPOT PRIMED WITH EXTERIOR PRIMER AS SPECIFIED. ALL NEW WOOD SHALL RECEIVE ONE PRIME COAT OF PAINT AS SPECIFIED. ALL PREVIOUSLY VARNISHED SURFACES SUCH AS FRONT ENTRANCE DOORS SHALL BE SANDED TO A SMOOTH FINISH, SEALED, AND TWO COATS OF SPAR VARNISH AS SPECIFIED, APPLIED.'

THE THIRD PARAGRAPH OF THIS PROVISION OF THE SPECIFICATIONS CONCERNS STUCCO SURFACES AND IS AS FOLLOWS:

"ALL NEW STUCCO SURFACES AND DRYWALL OF GARAGE SHALL RECEIVE ONE PRIME COAT OF LATEX BASE PAINT AS SPECIFIED AND THIS SHALL NOT BE CONSTRUED AS A COAT OF PAINT. THEREAFTER, ALL STUCCO SURFACES SHALL RECEIVE ONE FINISH COAT OF LATEX BASE PAINT.'

THE TELEGRAM AS RECEIVED BY MR. HENSON STATED THE NEW SENTENCE TO BE ADDED TO THE THIRD PARAGRAPH AS "THEREAFTER "NIIDICMDWORK" SHALL RECEIVE A FINISH COAT OF TITANIUM-LEAD-ZINC AND OIL PAINT.' AT THE END OF THE TELEGRAM THE SPELLING "NIIDICMDWORK" WAS REPEATED TOGETHER WITH ALL FIGURES APPEARING IN THE TELEGRAM BY WAY OF VERIFICATION.

YOU ASK (1) WHETHER THE REASONS GIVEN BY THE BIDDER ARE SUFFICIENT TO PERMIT THE AMOUNT OF THE BID TO BE INCREASED; (2) SHOULD MR. HENSON BE HELD TO HIS BID; OR (3) SHOULD THE BID BE ELIMINATED FROM CONSIDERATION IN THE MAKING OF AN AWARD?

SINCE THE MESSAGE WAS OBVIOUSLY GARBLED AND TIME WAS NOT A PROHIBITIVE FACTOR, IT APPEARS THAT THE EXERCISE OF A REASONABLE DEGREE OF PRUDENCE BY MR. HANSON WOULD HAVE REQUIRED A VERIFICATION OF THE MESSAGE EITHER FROM THE TELEGRAPH COMPANY OR FROM THE GOVERNMENT AGENCY AS TO THE EXACT WOOD SURFACES WHICH WERE TO RECEIVE THE FINISH COST OF PAINT, PRIOR TO ACKNOWLEDGING RECEIPT OF THE AMENDMENT ON HIS BID AND INCORPORATING SUCH ADDITIONAL REQUIREMENT INTO THE WORK UPON WHICH HE WAS BIDDING.

WHILE THE GOVERNMENT HAS THE RESPONSIBILITY TO FURNISH COMPLETE BIDDING INFORMATION, BIDDERS HAVE A CONCOMITANT DUTY TO ASCERTAIN WHETHER THE DATA BEFORE THEM IS SUFFICIENT TO BID INTELLIGENTLY. FURTHER, INASMUCH AS THE THIRD PARAGRAPH OF THE PROVISION PLAINLY STATES THAT ,ALL" STUCCO SURFACES SHALL RECEIVE A FINISH COAT OF PAINT, THE RECORD IS NOT REGARDED AS PROVIDING AN ADEQUATE BASIS FOR THE INTERPRETATION WHICH MR. HENSON STATES HE GAVE TO THE SPECIFICATIONS IN THAT RESPECT SO AS TO AFFECT HIS BIDDING RIGHTS IN THE MATTER.

IN SUPPORT, HOWEVER, OF HIS STATEMENT THAT HE DID NOT FIGURE ANY PAINTING OF THE COMPLETE EXTERIOR TRIM OR ALL EXTERIOR STUCCO SURFACES, MR. HENSON HAS SUBMITTED ITEMIZED WORKSHEETS ON WHICH HIS BID WAS COMPUTED SHOWING THE CHARGE AND WORK TO BE PERFORMED ON EACH OF THE DWELLINGS CONCERNED. AS ALLEGED BY MR. HENSON, THE WORKSHEETS DO NOT SHOW THAT THE PAINTING OF EITHER THE EXTERIOR WOOD TRIM OR ALL STUCCO SURFACES WERE FACTORS INCLUDED IN THE COMPUTATION OF HIS BID PRICE.

THE BASIC GENERAL RULE IS THAT BIDS MAY NOT BE CHANGED AFTER THE TIME FIXED FOR OPENING. TO JUSTIFY CORRECTION OF A BID THE BIDDER MUST ESTABLISH BY CONVINCING EVIDENCE THAT THE PRICE BID IS IN ERROR, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE PRICE WHICH WAS INTENDED AND WOULD HAVE BEEN SUBMITTED IN THE ABSENCE OF ERROR. SUCH EXCEPTION TO THE GENERAL RULE, WHICH PERMITS CORRECTION OF A BID UPON SUFFICIENT EVIDENCE TO ESTABLISH THAT THE BIDDER ACTUALLY INTENDED TO BID AN AMOUNT OTHER THAN THAT SET OUT IN THE BID FORM, DOES NOT EXTEND TO PERMITTING A BIDDER TO RECALCULATE AND CHANGE HIS BID TO INCLUDE FACTORS WHICH HE DID NOT HAVE IN MIND WHEN THE BID WAS PREPARED AND SUBMITTED. 17 COMP. GEN. 575, 577. HERE, IT IS CLEARLY INDICATED THAT MR. HENSON IN PROCESSING HIS BID DID NOT CONTEMPLATE PAINTING ALL EXTERIOR WOODWORK AND ALL STUCCO SURFACES REQUIRED BY THE SPECIFICATIONS, AS AMENDED, AND WE BELIEVE THAT THE RECORD FAIRLY ESTABLISHES THAT THE OMISSION OF SUCH WORK FROM HIS BID COMPUTATIONS WAS NOT DUE TO ANY AMBIGUITY IN THE ORIGINAL SPECIFICATIONS OR NEGLIGENCE ON THE PART OF GOVERNMENT PERSONNEL IN EFFECTING THE AMENDMENT THERETO.

WHILE WE MUST THEREFORE CONCLUDE THAT THE BID PRICE OF MR. HENSON MAY NOT BE RESTATED AS $78,892 AND ACCEPTED IN THAT AMOUNT FOR THE COMPLETE WORK COVERED BY THE SPECIFICATIONS, IT APPEARS THAT THE DIFFERENCE BETWEEN HIS BID PRICE OF $56,792 AND THE OTHER BID PRICES OF $84,938 AND $89,400 IS SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. UNDER SUCH CIRCUMSTANCES IT IS DOUBTFUL THAT ACCEPTANCE OF THE BID WOULD CONSTITUTE A VALID AND BINDING CONTRACT REQUIRING MR. HENSON TO PERFORM FOR THE AMOUNT QUOTED IN HIS BID. SEE ALTA ELECTRIC AND MECHANICAL COMPANY V. UNITED STATES, 90 CT.CL. 466, 476, AND KEMP V. UNITED STATES, 38 F.SUPP. 568.

ACCORDINGLY, MR. HENSON'S BID MAY BE DISREGARDED IN MAKING AN AWARD UNDER INVITATION FOR BIDS NO. 6605. IN THE EVENT A CONTRACT IS AWARDED TO ANY BIDDER UNDER THE ABOVE INVITATION, A COPY OF THIS LETTER SHOULD BE ATTACHED TO THE FIRST PAYMENT VOUCHER.