B-164995, AUG. 26, 1968

B-164995: Aug 26, 1968

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DRIVER: REFERENCE IS MADE TO LETTER DATED AUGUST 1. IT IS STATED THAT THE ORIGINAL REQUISITION AND SPECIFICATIONS SUBMITTED BY THE ENGINEERING DIVISION CALLED FOR APPROXIMATELY 13. HE REPLIED THAT HIS MEASUREMENTS WERE SCALED FROM AN ENGINEERING MAP OF THE HOSPITAL GROUNDS. HE STATED THAT IT WAS THE ONLY ONE THE ENGINEERING DIVISION HAD AND HE COULD NOT RELEASE IT. WAS SUBSEQUENTLY USED AS A PART OF THE SPECIFICATIONS. THE SUPERVISOR OF MAINTENANCE THEN CONCEDED THAT HIS SCALING OF THE ENGINEERING MAP MIGHT HAVE BEEN IN ERROR. WERE ISSUED ON APRIL 17. TWO BIDS WERE RECEIVED AND OPENED ON MAY 7. TRU-LAY PAVING COMPANY WAS THE APPARENT LOW BIDDER. AWARD FOR THE WORK WAS MADE ON MAY 8. V687C-157 WAS ASSIGNED TO TRU-LAY PAVING COMPANY IN THE AMOUNT OF ITS BID.

B-164995, AUG. 26, 1968

TO MR. DRIVER:

REFERENCE IS MADE TO LETTER DATED AUGUST 1, 1968, WITH ENCLOSURES, FROM THE DIRECTOR, SUPPLY SERVICE, DEPARTMENT OF MEDICINE AND SURGERY, CONCERNING THE CLAIM OF TRU-LAY PAVING COMPANY, INCORPORATED, FOR ADDITIONAL SUMS ARISING OUT OF INVITATION FOR BIDS NO. 68-19 AND CONTRACT NO. V687C-157 FOR SEAL COATING CERTAIN ROADWAYS AND PARKING AREA SURFACES AT THE VETERANS ADMINISTRATION HOSPITAL, WALLA WALLA, WASHINGTON.

IT IS STATED THAT THE ORIGINAL REQUISITION AND SPECIFICATIONS SUBMITTED BY THE ENGINEERING DIVISION CALLED FOR APPROXIMATELY 13,200 SQUARE YARDS OF SEAL COATING. QUESTIONING THE ACCURACY OF THE MEASUREMENTS, AND PRIOR TO COMPILING THE SPECIFICATIONS AND REQUIREMENTS OF THE BID, THE CONTRACTING OFFICER ASKED THE SUPERVISOR OF MAINTENANCE SECTION (ENGINEERING DIVISION) HOW HE HAD ARRIVED AT AN ESTIMATE OF 13,200 SQUARE YARDS. HE REPLIED THAT HIS MEASUREMENTS WERE SCALED FROM AN ENGINEERING MAP OF THE HOSPITAL GROUNDS. WHEN ASKED TO FURNISH THE MAP IN ORDER TO REPRODUCE THE MAP AND INCLUDE IT WITH THE GENERAL SPECIFICATIONS, HE STATED THAT IT WAS THE ONLY ONE THE ENGINEERING DIVISION HAD AND HE COULD NOT RELEASE IT. A SIMILAR BUT INACCURATELY SCALED MAP, OR DRAWING, WAS SUBSEQUENTLY USED AS A PART OF THE SPECIFICATIONS. THE CONTRACTING OFFICER MEASURED THE AREA AND ARRIVED AT A FIGURE OF APPROXIMATELY 9,000 SQUARE YARDS AS THE AREA TO BE SEAL-COATED. THE SUPERVISOR OF MAINTENANCE THEN CONCEDED THAT HIS SCALING OF THE ENGINEERING MAP MIGHT HAVE BEEN IN ERROR.

INVITATIONS FOR BIDS, PREDICATED ON APPROXIMATELY 9,000 SQUARE YARDS TO BE SEAL-COATED, WERE ISSUED ON APRIL 17, 1968. TWO BIDS WERE RECEIVED AND OPENED ON MAY 7, 1968. TRU-LAY PAVING COMPANY WAS THE APPARENT LOW BIDDER, SUBMITTING AN OFFER OF $2,450. AWARD FOR THE WORK WAS MADE ON MAY 8, 1968, AND CONTRACT NO. V687C-157 WAS ASSIGNED TO TRU-LAY PAVING COMPANY IN THE AMOUNT OF ITS BID. ON JUNE 14, 1968, AFTER THE WORK HAD BEEN SATISFACTORILY COMPLETED, THE CONTRACTOR'S SUPERVISING FOREMAN INFORMED THE CONTRACTING OFFICER THAT HE HAD ARRIVED AT A MEASUREMENT OF 13,256 SQUARE YARDS. THE FOREMAN FURTHER STATED THAT THE CONTRACTOR HAD BID ON ONLY 9,000 SQUARE YARDS. ON JUNE 19, 1968, THE CONTRACTOR SUBMITTED A CLAIM FOR $1,134 FOR AN ADDITIONAL 4,200 SQUARE YARDS AT $0.27 PER SQUARE YARD, THE APPROXIMATE BID RATE.

IN AN EFFORT TO VERIFY THE AREA ACTUALLY COVERED, THE CONTRACTING OFFICER CONTACTED THE UNSUCCESSFUL BIDDER, WHO ADVISED THAT HE HAD NOT MEASURED THE AREA, BUT USED THE SPECIFICATION FIGURE IN PREPARING HIS BID. THE CONTRACTING OFFICER, DECIDING AN ERROR HAD BEEN MADE, REQUESTED A REMEASUREMENT BY THE ENGINEERING DIVISION. THE CHIEF, ENGINEERING DIVISION, SUBMITTED A MEMORANDUM STATING THAT THEIR SCALED DRAWING STILL CALCULATED TO BE 13,200 SQUARE YARDS.

THE CONTRACTOR'S CLAIM IN THE AMOUNT OF $1,134, FOR 4,200 SQUARE YARDS IN EXCESS OF THE APPROXIMATED CONTRACT FIGURE, IS SUBMITTED HERE SINCE, UNDER FPR 1-2.406-4 (I), AN AGENCY ADMINISTRATIVE DETERMINATION IS PRECLUDED WHERE THE DOLLAR AMOUNT REQUESTED BY THE CONTRACTOR EXCEEDS $1,000.

THE CONTRACT AS WRITTEN CALLS FOR SEAL COATING ROADWAYS AND PARKING AREAS AT THE VA HOSPITAL, WALLA WALLA, WASHINGTON, IN ACCORDANCE WITH GENERAL SPECIFICATIONS E-68-3, WHICH HAS THE FOLLOWING HEADING: "SPECIFICATIONS FOR FURNISHING ALL LABOR, EQUIPMENT AND MATERIAL AND NECESSARY ITEMS TO APPLY APPROXIMATELY 9,000 SQUARE YARDS OF SEAL COATING ON ROADWAYS AND PARKING AREA AT THE VETERANS ADMINISTRATION HOSPITAL, WALLA WALLA, WASHINGTON. "GENERAL AREAS TO COVER WITH SEAL COATING: "BEGIN AT MAIN ENTRANCE ROADWAY, STARTING AT FIRST LIGHT STANDARD EAST OF WELL HOUSE NO. 99, AND PROCEED WEST PAST ADMINISTRATION BUILDING NO. 77 AND COMPLETELY ENCIRCLE AREA KNOWN LOCALLY AS -THE PARADE GROUND- (SEE ATTACHED DRAWING), INCLUDING THE SHORT ACCESS ROAD ON WEST END OF BUILDING NO. 68, AND THE TWO CONNECTING ROADWAYS EXTENDING WEST TO AND INCLUDING THE PARKING AREA BEHIND BUILDING NO. 86 AND ANNEX BUILDING T-6.'

IT IS, WE THINK, SIGNIFICANT THAT THE SPECIFICATION CALLS FOR THE CONTRACTOR "TO APPLY APPROXIMATELY 9,000 SQUARE YARDS OF SEAL COATING" IN CERTAIN "GENERAL AREAS.'

BOTH PARTIES MUST BE PRESUMED TO KNOW THAT SOME VARIATION IN QUANTITY MIGHT BE EXPECTED BECAUSE OF THE DESCRIPTION OF THE WORK AS "APPROXIMATELY" 9,000 SQUARE YARDS. HOWEVER, THIS ESTIMATE WAS SO ERRONEOUS THAT THE CONTRACTOR IS, IN OUR OPINION, ENTITLED TO AN ADJUSTMENT OF THE CONTRACT PRICE. SEE EASTERN SERVICE MANAGEMENT COMPANY V UNITED STATES, 243 F.SUPP. 302.

THE RATE PER SQUARE YARD USED AS A MEASURE FOR ESTABLISHING THE VALUE OF THE EXTRA WORK IS SLIGHTLY LESS THAN THE RATE USED BY THE CONTRACTOR IN THE PREPARATION OF HIS BID AND APPEARS REASONABLE. ACCORDINGLY, PAYMENT OF THE AMOUNT CLAIMED, $1,134, IF OTHERWISE PROPER, MAY BE MADE TO THE CLAIMANT.

A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER COVERING THE PAYMENT.