B-161879, NOV. 20, 1967

B-161879, NOV. 20, 1967

BIDS - SPECIFICATIONS - AMBIGUOUS DECISION TO SECY. OF THE ARMY CONCERNING PROTEST OF WILLIAMS CONTRACTING INC., LOW BIDDER, FOR PAINTING 170 BUILDINGS AT FORT MCCLELLAN. A LOW BIDDER WHO DID NOT INCLUDE IN HIS BID CERTAIN WORK THAT WAS NOT IN ANY OF THE JOB DESCRIPTIONS BUT WAS REQUIRED UNDER GENERAL CONDITIONS MUST BE CONSIDERED TO HAVE PROPERLY INTERPRETED THE INVITATION SINCE A GENERAL PROVISION REQUIRING BIDDERS TO INSPECT THE SITE MAY NOT IMPOSE AN OBLIGATION TO DO MORE THAN IS SPECIFICALLY REQUIRED. FURTHER A PROVISION IN A GENERAL CONDITION TO PERFORM WORK NOT SPECIFICALLY CALLED FOR IS APPLICABLE TO SITUATIONS WHERE THERE IS AN OMISSION IN THE SPECIFICATIONS AND NOT TO AN OMISSION OF WORK FROM THE JOB DESCRIPTION. SINCE THE LOW BIDDER'S INTERPRETATION WAS NOT CONSISTANT WITH GOVERNMENT NEEDS, AWARD WOULD NOT HAVE BEEN PROPER. THE WORK SHOULD HAVE BEEN READVERTISED. HOWEVER SINCE CONTRACT WAS AWARDED TO NEXT LOW BIDDER AND WORK IS 76 PERCENT COMPLETE CORRECTIVE ACTION IS NOT IN INTEREST OF GOVERNMENT. IMPROVEMENT IN SIMILAR FUTURE JOB DESCRIPTIONS IS RECOMMENDED.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OASA/I AND L) (PP) OF SEPTEMBER 6, 1967, REPORTING ON THE PROTEST OF WILLIAMS CONTRACTING INC. AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. DABC0567B0043.

THE INVITATION PROVIDED THAT BIDS FOR THE WORK DESCRIBED THEREIN WOULD BE RECEIVED UNTIL 11 M., JUNE 21, 1967,"IN STRICT ACCORDANCE WITH BID SHEETS, SPECIFICATIONS AND AMENDMENTS.' IT WAS FURTHER PROVIDED: "MAGNITUDE: MAGNITUDE OF THIS INVITATION COVERS CAULKING, REPOINTING, EXTERIOR PAINTING, AND WATERPROOFING OF 170 BUILDINGS.'

UNDER THE INVITATION HEADING,"DESCRIPTION OF WORK," SUBHEADING, "WORK TO BE DONE," IT IS STATED IN PARAGRAPH "A": "FURNISH ALL PLANT, LABOR, MATERIAL AND EQUIPMENT NECESSARY FOR EXTERIOR PAINTING AND WATERPROOFING OF ONE HUNDRED SEVENTY (170) BUILDINGS, FORT MCCLELLAN, ALABAMA, IN STRICT COMPLIANCE WITH SPECIFICATIONS PART III TECHNICAL PROVISIONS, AND AS LISTED ON THE BID SHEETS.' PARAGRAPH "B" STATES: "WORK SHALL BE LIMITED TO SPECIFICATIONS AS SET FORTH IN SPECIFICATIONS PART III, TECHNICAL PROVISIONS, AND AS LISTED ON THE BID SHEETS.' THE LAST PARAGRAPH ON THE REVERSE SIDE OF THE INVITATION ADMONISHED BIDDERS: "BIDDERS SHOULD CAREFULLY EXAMINE THE SPECIFICATIONS, MUST VISIT THE SITE OF WORK AND FULLY INFORM THEMSELVES AS TO ALL THE CONDITIONS AND MATTERS WHICH CAN IN ANY WAY AFFECT THE WORK OR THE COST THEREOF. SHOULD A BIDDER FIND DISCREPANCIES IN OR OMISSIONS FROM SPECIFICATIONS OTHER DOCUMENTS OR SHOULD HE BE IN DOUBT AS TO THEIR MEANING, HE SHOULD AT ONCE NOTIFY THE CONTRACTING OFFICER AND OBTAIN CLARIFICATION PRIOR TO SUBMITTING A BID.' IN ADDITION, THE INSTRUCTIONS TO BIDDERS PROVIDED:

"CONDITIONS AFFECTING THE WORK. BIDDERS SHOULD VISIT THE SITE AND TAKE SUCH STEPS AS MAY BE REASONABLY NECESSARY TO ASCERTAIN THE NATURE AND LOCATION OF THE WORK, AND THE GENERAL AND LOCAL CONDITIONS WHICH CAN AFFECT THE WORK OR THE COST THEREOF. FAILURE TO DO SO WILL NOT RELIEVE BIDDERS FROM RESPONSIBILITY FOR ESTIMATING PROPERLY THE DIFFICULTY OR COST OF SUCCESSFULLY PERFORMING THE WORK. THE GOVERNMENT WILL ASSUME NO RESPONSIBILITY FOR ANY UNDERSTANDING OR REPRESENTATIONS CONCERNING CONDITIONS MADE BY ANY OF ITS OFFICERS OR AGENTS PRIOR TO THE EXECUTION OF THE CONTRACT, UNLESS INCLUDED IN THE INVITATION FOR BIDS, THE SPECIFICATIONS, OR RELATED DOCUMENTS.'

A "BID SHEET" WAS PROVIDED TO BIDDERS TO BID A SEPARATE PER JOB PRICE FOR EACH OF THE 170 BUILDINGS. THE FIRST LIST OF 32 BUILDINGS WAS PRECEDED BY A JOB DESCRIPTION AS FOLLOWS: "BLAST CLEAN, CUT OUT AND REPOINT CRACKS, OTHER SURFACE PREPARATION AS SPECIFIED, THEN APPLICATION OF ONE BASE FILLER COAT AND ONE FINISH COAT OF EMULSION ON MASONRY SURFACES; SPOT PRIME AND ONE FINISH COAT OF OIL PAINT ON TRIM IN ACCORDANCE WITH SPECIFICATIONS, TO THE FOLLOWING BUILDINGS: " THE JOB DESCRIPTION PRECEDING THE NEXT LISTED BUILDING WAS AS FOLLOWS: "EXISTING PAINTED SURFACES TO BE GIVEN SAME TREATMENT AS ITEMS NO. 1 THRU 32 AND UNPAINTED PORTION OF MASONRY, CONCRETE OR STUCCO TO RECEIVE ONE PENETRATING SEALANT AND ONE FINISH COAT OF EMULSION IN ACCORDANCE WITH SPECIFICATIONS, TO THE FOLLOWING BUILDING: " THE JOB DESCRIPTION FOR THE NEXT THREE BUILDINGS STATED: "SURFACE PREPARATION AND APPLICATION OF ONE COAT OF SEALANT AND ONE FINISH COAT OF EMULSION TO MASONRY, CONCRETE, OR STUCCO SURFACES. TRIM TO RECEIVE SURFACE PREPARATION SPOT PRIME, AND TWO FINISH COATS OF OIL PAINT IN ACCORDANCE WITH SPECIFICATIONS, TO THE FOLLOWING BUILDINGS: THE JOB DESCRIPTION FOR THE NEXT FOUR BUILDINGS STATED: "SURFACE PREPARATION INCLUDING REMOVAL OF RUST, APPLICATION OF METAL BONDING PRIMER AND TWO FINISH COATS OF ALUMINUM PAINT TO METAL PORTION OF BUILDINGS. MASONRY PORTION OF BUILDINGS TO BE GIVEN SAME TREATMENT AS ABOVE IN ACCORDANCE WITH SPECIFICATIONS, TO THE FOLLOWING BUILDINGS: " THE JOB DESCRIPTION FOR THE REMAINING 130 BUILDINGS READ: "CLEANING, SURFACE PREPARATION, APPLICATION OF ONE PRIMER COAT AND ONE FINISH COAT TO WOOD SIDING BUILDINGS (INCLUDING ASBESTOS SIDING) IN ACCORDANCE WITH SPECIFICATIONS, TO FOLLOWING BUILDINGS: "

AT THE END OF THE LISTING OF BUILDINGS, SPACE WAS PROVIDED FOR A "TOTAL AGGREGATE BID.' THE ,AWARD" NOTICE WHICH FOLLOWED IT STATED THAT BIDDERS WERE REQUIRED TO BID ON EACH ITEM IN ORDER TO BE RESPONSIVE AND THAT AWARD WOULD BE BASED ON THE LOWEST RESPONSIVE TOTAL AGGREGATE BID FOR ITEMS 1 THROUGH 170. HOWEVER, THE NEXT PARAGRAPH PROVIDED THAT THE GOVERNMENT RESERVED THE RIGHT TO AWARD FROM THE LOWEST RESPONSIVE TOTAL AGGREGATE BID ANY OF THE ITEMS OR ANY COMBINATION THEREOF. BID SHEET PROVISION 1,"INCREASE-DECREASE," FURTHER PROVIDED THAT THE GOVERNMENT MAY DECREASE THE DOLLAR AMOUNT OF THE LUMP-SUM BID BY NO MORE THAN 15 PERCENT BY ADDING OR DELETING BUILDINGS OF THE TYPE SHOWN ON THE BID SHEETS AT THE UNIT PRICES QUOTED BY THE BIDDER. IT WAS PROVIDED THAT ANY DECREASE IN SCOPE OF THE WORK WOULD BE MADE KNOWN TO THE SUCCESSFUL BIDDER AT THE TIME OF AWARD OR WITHIN 30 DAYS THEREAFTER.

ARTICLE GC-1 OF THE GENERAL CONDITIONS TO THE SPECIFICATIONS STATES IN PART:

"* * * THE WORK SHALL BE COMPLETE, AND ALL WORK, MATERIAL AND SERVICE NOT EXPRESSLY CALLED FOR IN THE SPECIFICATIONS OR NOT SHOWN ON THE DRAWINGS WHICH MAY BE NECESSARY FOR COMPLETE AND PROPER CONSTRUCTION TO CARRY OUT THE CONTRACT IN GOOD FAITH SHALL BE PERFORMED, FURNISHED AND INSTALLED BY THE CONTRACTOR AT NO INCREASE IN COST TO THE GOVERNMENT.'

ARTICLE GC-4 PROVIDES THAT THE CONTRACTOR ACKNOWLEDGES THAT HE HAS INVESTIGATED THE SITE AND HAS SATISFIED HIMSELF AS TO THE CONDITIONS AT THE SITE. IT STATES FURTHER THAT ANY FAILURE BY THE CONTRACTOR TO ACQUAINT HIMSELF WITH THE AVAILABLE INFORMATION WILL NOT RELIEVE HIM FROM RESPONSIBILITY FOR ESTIMATING PROPERLY THE DIFFICULTY OR COST OF SUCCESSFULLY PERFORMING THE WORK AND THAT THE GOVERNMENT ASSUMES NO RESPONSIBILITY FOR ANY CONCLUSIONS OR INTERPRETATIONS MADE BY THE CONTRACTOR ON THE BASIS OF THE INFORMATION MADE AVAILABLE BY THE GOVERNMENT.

ARTICLE SC-2 (B) OF THE SPECIAL CONDITIONS PROVIDES THAT OMISSIONS FROM THE DRAWINGS OR SPECIFICATIONS OR THE MISDESCRIPTION OF DETAILS OF WORK WHICH ARE MANIFESTLY NECESSARY TO CARRY OUT THE INTENT OF THE DRAWINGS AND SPECIFICATIONS, OR WHICH ARE CUSTOMARILY PERFORMED, SHALL NOT RELIEVE THE CONTRACTOR FROM PERFORMING SUCH OMITTED OR MISDESCRIBED DETAILS OF THE WORK BUT SHALL BE PERFORMED AS IF FULLY AND CORRECTLY SET FORTH AND DESCRIBED IN THE DRAWINGS AND SPECIFICATIONS.

ALSO, ATTACHED TO THE INVITATION FOR BIDS WERE SPECIFICATIONS FOR CAULKING, REPOINTING, EXTERIOR PAINTING AND WATERPROOFING.

THREE BIDS WERE RECEIVED UNDER THE INVITATION FOR BIDS. WILLIAMS CONTRACTING INC. SUBMITTED THE LOWEST TOTAL BID IN THE AMOUNT OF $116,421. THE TOTALS OF THE NEXT TWO BIDS WERE $138,916.35 AND $154,264.50. THE GOVERNMENT ESTIMATE FOR THE JOB WAS $149,304.50. BECAUSE OF THE VARIATION BETWEEN THE LOW BID AND THE OTHER BIDS AND THE GOVERNMENT ESTIMATE, AN ERROR WAS SUSPECTED IN THE LOW BID AND THE BIDDER WAS REQUESTED TO VERIFY THE BID.

HOWEVER, BY CONFERENCE AND BY LETTER, THE BIDDER (WILLIAMS) MAINTAINED THAT IT MADE NO ERROR IN BID WITH THE EXCEPTION OF POSSIBLY ONE BUILDING WHICH IT WAS WILLING TO WAIVE. WILLIAMS EXPLAINED THAT, AS A RESULT OF ITS INTERPRETATION OF THE BID SHEET AND SPECIFICATIONS, ITS BID DID NOT PROVIDE FOR CAULKING ANY OF THE 170 BUILDINGS OR FOR PAINTING THE CONCRETE SURFACE ON THE BUILDINGS LISTED IN THE FIRST 32 ITEMS. WITH RESPECT TO THE ONE BUILDING ON WHICH THE BIDDER WAS WILLING TO WAIVE ERROR, THE BID WAS $880. THE OTHER BIDDERS BID $5,376 AND $7,010 ON THAT ITEM. THE GOVERNMENT'S ESTIMATE FOR THE ITEM WAS $6,006.

THE BIDDER MAINTAINED THAT ITS INTERPRETATION OF THE BID SHEETS AND SPECIFICATIONS WAS REASONABLE AND THAT IF AN AWARD COULD NOT BE MADE TO IT, THE INVITATION SHOULD BE CANCELED OR ITS PROTEST FORWARDED TO OUR OFFICE FOR A DECISION. HOWEVER, THE CONTRACTING OFFICER DECIDED THAT IT WAS CLEAR AND UNMISTAKABLE THAT THE BIDDER HAD MISINTERPRETED THE GOVERNMENT'S REQUIREMENTS; THEREFORE, SHE REJECTED THE BID AS AN ERRONEOUS BID RELYING UPON ASPR 2-406.3 (E) (2) WHICH PROVIDES FOR BID REJECTION WHEN THERE ARE "INDICATIONS OF ERROR SO CLEAR, AS REASONABLY TO JUSTIFY THE CONCLUSION THAT ACCEPTANCE OF THE BID WOULD BE UNFAIR TO THE BIDDER OR TO OTHER BONA FIDE BIDDERS.'

THE ISSUE IN THIS CASE IS WHETHER THE BIDDER OR THE CONTRACTING OFFICER HAD THE CORRECT INTERPRETATION OF THE ADVERTISED SPECIFICATIONS.

CAULKING IS NOT PROVIDED FOR IN ANY OF THE JOB DESCRIPTIONS SET OUT IN THE ABOVE-QUOTED BID SHEETS. MOREOVER, IN CONTRAST TO THE QUOTED BID SHEET DESCRIPTIONS FOR ITEM 33 AND ITEMS 34 THROUGH 36, WHICH REQUIRED CONCRETE TO BE PAINTED, THE BID SHEET DESCRIPTION FOR ITEMS 1 THROUGH 32 MAKES NO MENTION OF CONCRETE IN ANY RESPECT. THE SPECIFICATIONS WHICH ARE ATTACHED TO THE INVITATION DESCRIBE HOW VARIOUS WORK IS TO BE DONE, BUT MAKE NO REFERENCE AS TO THE SPECIFIC BUILDINGS UPON WHICH THE WORK IS TO BE ACCOMPLISHED.

IN COBB BROS. CONSTRUCTION CO., INC., BCA NO. 275, OCTOBER 9, 1943 (1 CCF 732), IT WAS HELD:

"BUT WHERE THE CONTRACT IS SEPARATED INTO BID ITEMS, FOR WHICH UNIT PRICES ARE STIPULATED, AND IT IS DESIRED TO INCLUDE ALL OF THE WORK IN THE CONTRACT, IT IS THE DUTY OF THE CONTRACTING OFFICER TO COMPRISE THE TOTALITY OF THE WORK DESIRED TO BE PERFORMED IN THE SEPARATE ITEMS FOR WHICH BIDS ARE INVITED AND THE CONTRACT AWARDED. IN SUCH CASES, THE DRAWINGS AND SPECIFICATIONS ARE APPLICABLE AND CONTROLLING AS TO THE WORK TO BE PERFORMED ONLY TO THE EXTENT OF THE WORK DESCRIBED AND INCLUDED IN THE SEPARATE BID ITEMS. THE COST OF WORK REQUIRED UNDER THE DRAWINGS AND SPECIFICATIONS BUT NOT INCLUDED IN THE SCHEDULE OF BID ITEMS CANNOT BE SHIFTED TO THE CONTRACTOR. TO THAT EXTENT THE SCHEDULE OF BID ITEMS CONTROLS THE DRAWINGS AND SPECIFICATIONS, BECAUSE IT IS THE BASIC POINT OF DEPARTURE OF ANY INQUIRY TO DETERMINE WHAT THE CONTRACTOR WAS OBLIGATED TO DO.'

WHILE THE GENERAL CONDITIONS ATTACHED TO THE INVITATION IMPOSE UPON THE BIDDER THE RESPONSIBILITY OF INSPECTING THE WORK SITE, SUCH AN EXAMINATION IS FOR THE PURPOSE OF OBSERVING CONDITIONS AT THE SITE, AND WE DO NOT BELIEVE THAT SUCH A PROVISION SHOULD BE VIEWED AS IMPOSING UPON A BIDDER A CONTRACT OBLIGATION TO DO MORE THAN IS SPECIFICALLY REQUIRED BY THE CONTRACT. ALTHOUGH IT IS STATED IN THE GENERAL CONDITIONS THAT WORK, MATERIAL AND SERVICE NOT EXPRESSLY CALLED FOR IN THE SPECIFICATIONS WHICH MAY BE NECESSARY FOR COMPLETE AND PROPER CONSTRUCTION TO CARRY OUT THE CONTRACT IN GOOD FAITH SHALL BE PERFORMED, FURNISHED AND INSTALLED AT NO INCREASE IN COST TO THE GOVERNMENT, THAT PROVISION APPLIES TO A SITUATION WHERE THERE IS AN OMISSION IN THE SPECIFICATIONS AND NOT TO AN OMISSION OF WORK FROM THE JOB DESCRIPTIONS INCLUDED IN THE BID SHEETS.

IN VIEW OF THE FOREGOING, WE BELIEVE THAT THE INTERPRETATION PLACED UPON THE INVITATION FOR BIDS BY WILLIAMS CONTRACTING WAS PROPER. HOWEVER, SINCE SUCH AN INTERPRETATION APPARENTLY WAS NOT CONSISTENT WITH THE NEEDS OF THE GOVERNMENT, IT WOULD NOT HAVE BEEN PROPER TO MAKE AN AWARD TO WILLIAMS. RATHER, IN OUR OPINION, THE INVITATION SHOULD HAVE BEEN CANCELED AND READVERTISED ON TERMS ACCURATELY STATING THE GOVERNMENT'S REQUIREMENTS.

OUR OFFICE WAS ADVISED RECENTLY THAT THE CONTRACT AWARDED TO THE NEXT LOW BIDDER ON JUNE 26, 1967, WAS 76-PERCENT COMPLETE. IN VIEW THEREOF, IT WOULD NOT BE IN THE INTERESTS OF THE GOVERNMENT TO TAKE CORRECTIVE ACTION AT THIS LATE DATE. HOWEVER, WE RECOMMEND THAT THE PROCUREMENT BE REVIEWED FOR THE PURPOSE OF IMPROVING JOB DESCRIPTIONS THAT MAY BE INCLUDED IN BID SHEETS COVERING SIMILAR FUTURE PROCUREMENTS.