B-159226, JUL. 19, 1966

B-159226: Jul 19, 1966

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TO DINGER CONTRACTING COMPANY: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 18. ON THE GROUNDS THAT THE SPECIFICATIONS WERE CONFUSING AND MISLEADING. THE ABOVE-REFERENCED INVITATION WAS ISSUED ON APRIL 1. AWARD WAS MADE TO THE LOW BIDDER. DINGER CONTRACTING COMPANY PROTESTS THIS AWARD ON THE GROUNDS THAT THE SPECIFICATIONS WERE CONFUSING AND MISLEADING THEREBY DEPRIVING ALL BIDDERS OF AN EQUAL OPPORTUNITY TO SUBMIT A COMPETITIVE BID ON THE SAME REQUIREMENTS. THE PROTESTANT CLAIMS THE SPECIFICATIONS WERE CONFUSING AND MISLEADING IN THREE RESPECTS: FIRST. THE MEANING OF THE TERM "SOIL CEMENT" IS NOT CLEAR. THAT THE AMOUNT OF SOIL-CEMENT NEEDED FOR BACK-FILLING THE TRENCHES WAS NOT ASCERTAINABLE FROM THE SPECIFICATIONS AND DRAWINGS.

B-159226, JUL. 19, 1966

TO DINGER CONTRACTING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 18, 1966, AND CORRESPONDENCE OF SAME DATE AND MAY 19, 1966, PROTESTING AGAINST AN AWARD TO ANY COMPANY PURSUANT TO INVITATION FOR BIDS NO. NBY-67676, ISSUED BY THE BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, ON THE GROUNDS THAT THE SPECIFICATIONS WERE CONFUSING AND MISLEADING.

THE ABOVE-REFERENCED INVITATION WAS ISSUED ON APRIL 1, 1966, AND SOLICITED BIDS FOR THE REMOVAL OF EXISTING AIRCRAFT FUELING POINTS AND INSTALLATION OF A NEW JET AIRCRAFT FUELING SYSTEM AT CHARLESTON AIR FORCE BASE, CHARLESTON, SOUTH CAROLINA.

TWELVE FIRMS SUBMITTED BIDS IN RESPONSE TO THE INVITATION, THE LOW BID OF $697,257 BEING SLIGHTLY MORE THAN NINE-THOUSAND DOLLARS LOWER THAN THE DINGER CONTRACTING COMPANY BID OF $706,412. AWARD WAS MADE TO THE LOW BIDDER, FRANK A. MCBRIDE COMPANY, BRUNSWICK, GEORGIA, ON JUNE 9, 1966. DINGER CONTRACTING COMPANY PROTESTS THIS AWARD ON THE GROUNDS THAT THE SPECIFICATIONS WERE CONFUSING AND MISLEADING THEREBY DEPRIVING ALL BIDDERS OF AN EQUAL OPPORTUNITY TO SUBMIT A COMPETITIVE BID ON THE SAME REQUIREMENTS. DINGER, THEREFORE, PROTESTS THAT ALL BIDS SHOULD BE REJECTED AND THE JOB READVERTISED.

THE PROTESTANT CLAIMS THE SPECIFICATIONS WERE CONFUSING AND MISLEADING IN THREE RESPECTS: FIRST, THE AMOUNT OF SOIL-CEMENT NEEDED TO BACK-FILL THE TRENCHES COULD NOT BE DETERMINED FROM THE SPECIFICATIONS OR THE DRAWINGS; SECOND, THE MEANING OF THE TERM "SOIL CEMENT" IS NOT CLEAR; AND THIRD, THE OMISSION OF BORINGS FOR THE APRON TRENCH EXCAVATIONS DID NOT SHOW THE POSSIBLE EXISTENCE OF UNDERGROUND WATER. WE DO NOT AGREE WITH THESE CONTENTIONS.

IN REGARD TO DINGER'S FIRST CLAIM, THAT THE AMOUNT OF SOIL-CEMENT NEEDED FOR BACK-FILLING THE TRENCHES WAS NOT ASCERTAINABLE FROM THE SPECIFICATIONS AND DRAWINGS, WE NOTE IT IS TRUE THE PRECISE AMOUNT OF BACK -FILL IS NOT GIVEN IN THE SPECIFICATIONS. TO DO SO WOULD BE MOST IMPRACTICABLE, IF NOT IMPOSSIBLE, INASMUCH AS SOME OF THE TRENCHES ARE LIKELY TO BE OF DEPTHS AND WIDTHS NOT FULLY DETERMINABLE IN ADVANCE BECAUSE OF VARIOUS ROCK FORMATIONS AND OTHER UNDERGROUND CONDITIONS WHICH REQUIRE ADDITIONAL UNFORESEEABLE DIGGING. HOWEVER, THE SPECIFICATIONS AND DRAWINGS DO INDICATE THE LINEAL LENGTH OF THE PIPE; THE IFB STATES THAT APPROXIMATELY 12,000 LINEAR FEET OF VARIOUS SIZE PIPING WILL BE NEEDED FOR THE JOB. IF THIS ESTIMATE DID NOT SATISFY A PROSPECTIVE BIDDER, AND WELL IT MIGHT NOT, HE COULD SCALE THE LENGTH OF THE PIPING NEEDED FROM THE "FUEL PIPING PLAN" DRAWINGS. IN ADDITION, THE DRAWINGS AND THE IFB ARE EXPLICIT AS TO THE NUMBER OF FUELING POINTS THAT ARE REQUIRED AND, THUS, THE CONTRACTOR KNOWS HOW MANY TRENCHES MUST BE DUG. WITH ALL THIS INFORMATION AT HAND, AN EXPERIENCED CONTRACTOR SUCH AS DINGER SHOULD HAVE HAD NO TROUBLE IN MAKING A REASONABLY ACCURATE ESTIMATE OF THE AMOUNT OF BACKFILL NECESSARY TO FILL THESE TRENCHES.

SOMEWHAT ALONG THE SAME LINES, DINGER ARGUES THAT THE TERM "SOIL CEMENT" AS USED IN THE SPECIFICATIONS AND DRAWINGS WAS CONFUSING IN THAT HE COULD NOT DETERMINE THE CORRECT COMBINATION OF SOIL AND CEMENT TO BE MIXED TOGETHER AND THAT THIS UNCERTAINTY SERVED TO INCREASE HIS BID. IN THIS REGARD, WE HAVE BEEN INFORMED BY THE DEPARTMENT OF THE NAVY THAT "SOIL- CEMENT" HAS A DEFINITE MEANING AND IS A MIXTURE OF APPROXIMATELY 90 PERCENT SOIL AND 10 PERCENT CEMENT. THE GOVERNMENT ESTIMATE FOR THE IN PLACE PRICE OF THE SOIL-CEMENT WAS $10 PER CUBIC YARD AND THE PRICE QUOTED TO DINGER BY TWO CONCRETE COMPANIES IN CHARLESTON WAS $10.50 PER CUBIC YARD. WE DO NOT BELIEVE THAT DINGER OR THE OTHER BIDDERS WERE PREJUDICED BY THE USE OF THIS TERM. HOWEVER, EVEN IF THE CONTRACTORS REALLY DID NOT KNOW PRECISELY WHAT THE TERM MEANT, THE SUBCONTRACTORS, THAT IS, THE CONCRETE COMPANIES, CERTAINLY DID AND FIXED THEIR PRICES ACCORDINGLY. THEREFORE, THE ARGUMENT ADVANCED THAT "SOIL-CEMENT" COULD INDICATE SEVERAL DIFFERENT COMBINATIONS OF SOIL AND CEMENT IS, WE FEEL, WITHOUT MERIT.

DINGER'S THIRD CONTENTION IS THAT NO BORINGS WERE SHOWN FOR THE APRON TRENCH EXCAVATIONS, THEREBY CAUSING UNCERTAINTY AS TO THE POSSIBILITY OF UNDERGROUND WATER WHICH WOULD RESULT IN INCREASED BIDS. DINGER STATES THE LOCAL CONTRACTORS WHO WERE CONVINCED A WATER PROBLEM EXISTED REFLECTED THIS IN THEIR BIDS WHICH WERE IN THE $800,000 TO $900,000 RANGE, AS COMPARED TO THE BIDS OF NON-LOCAL CONTRACTORS WHOSE BIDS WERE IN THE $700,000 RANGE. ASSUMING, ARGUENDO, THIS TO BE TRUE, WE DO NOT KNOW HOW DINGER WAS PREJUDICED BY THIS SPECIAL KNOWLEDGE OF THE CHARLESTON CONTRACTORS. INDEED, IT APPEARS DINGER WAS AIDED SINCE HE UNDERBID ALL OF THE LOCAL CONTRACTORS AND THEY ALONE CAN CLAIM TO HAVE BEEN PREJUDICED BY THE OMISSION OF BORINGS. THE SPECIFICATIONS DID SHOW BORINGS FOR THE NEW PUMPHOUSE WHICH INDICATED WATER THERE AT LEVELS FROM 4 FEET 10 INCHES TO 5 FEET 2 INCHES BELOW THE SURFACE. IT IS INTERESTING TO NOTE THAT NONE OF THE CHARLESTON CONTRACTORS HAS PROTESTED THE AWARD IN THIS CASE. FURTHERMORE, THE ADMINISTRATIVE REPORT IN THIS CASE INDICATES IT IS NOT THE GENERAL PRACTICE TO SHOW BORINGS FOR APRON TRENCH EXCAVATIONS.

FINALLY, THE SCALE OF OFFERS ENCLOSED WITH THE ADMINISTRATIVE REPORT DISCLOSES THE FOUR LOW BIDDERS WERE WITHIN A RANGE OF FIVE PERCENT OF ONE ANOTHER.

IT IS OUR VIEW THE FACTS AND CIRCUMSTANCES IN THIS CASE INDICATE THAT SOME DEGREE OF ESTIMATING WAS REQUIRED OF THE BIDDERS, BUT THAT THIS WAS NOT AN UNREASONABLE REQUIREMENT NOR UNSUSCEPTIBLE OF REASONABLE ACCURACY. ACCORDINGLY, THE PROTEST OF DINGER CONTRACTING COMPANY IS DENIED.