B-170165, AUG. 31, 1970

B-170165: Aug 31, 1970

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LOW BIDDER WHO WHEN REQUESTED TO VERIFY BID ADVISED THAT HE HAD BID ON BASIS OF A DRAWING THAT DID NOT REQUIRE WORK ON PORTION OF ROOF MUST HAVE ADMINISTRATIVE DETERMINATION THAT PROTESTANT'S INTERPRETATION WAS UNREASONABLE UPHELD IN VIEW OF REVIEW OF INVITATION AND DRAWINGS WHICH SUPPORT CONCLUSION THAT ALL ROOFING WAS TO BE PERFORMED. TO BARENBAUM AND BARENBAUM: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6. WERE AS FOLLOWS: S. 383.00 THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK WAS $150. KANE WAS REQUESTED TO VERIFY ITS BID. KANE ADVISED THAT ITS BID WAS CORRECT AS SUBMITTED AND THAT THE "BID PRICE IS BASED ON PLANS AND SPECIFICATIONS AS INTERPRETED FOR THE MAIN ROOF ONLY. THE GOVERNMENT INTENDED THAT THE SOUTHWEST CORNER WAS TO BE INCLUDED.

B-170165, AUG. 31, 1970

BID PROTEST -- MISTAKE DENYING PROTEST OF LOW BIDDER AGAINST AWARD OF ROOFING CONTRACT TO KULZER ROOFING, INC., BY DEFENSE SUPPLY AGENCY ON BASIS OF MISTAKE. LOW BIDDER WHO WHEN REQUESTED TO VERIFY BID ADVISED THAT HE HAD BID ON BASIS OF A DRAWING THAT DID NOT REQUIRE WORK ON PORTION OF ROOF MUST HAVE ADMINISTRATIVE DETERMINATION THAT PROTESTANT'S INTERPRETATION WAS UNREASONABLE UPHELD IN VIEW OF REVIEW OF INVITATION AND DRAWINGS WHICH SUPPORT CONCLUSION THAT ALL ROOFING WAS TO BE PERFORMED.

TO BARENBAUM AND BARENBAUM:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1970, PROTESTING ON BEHALF OF S. KANE & SON, INCORPORATED (KANE), AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. DSA 100-70-B-1419, ISSUED BY THE DEFENSE SUPPLY AGENCY, DEFENSE PERSONNEL SUPPORT CENTER, PHILADELPHIA, PENNSYLVANIA.

THE INVITATION ISSUED ON MAY 7, 1970, REQUESTED BIDS FOR ROOF REPAIRS, BUILDING NO. 6, IN ACCORDANCE WITH ATTACHED SPECIFICATIONS AND DRAWING. THE THREE BIDS RECEIVED AND OPENED ON JUNE 7, 1970, WERE AS FOLLOWS:

S. KANE & SON, INC. $119,456.00

KULZER ROOFING, INC. 154,178.00

BROMLEY COMPANY 294,383.00

THE GOVERNMENT'S ESTIMATE OF THE COST OF THE WORK WAS $150,000.00. VIEW OF THE WIDE VARIATION IN THE BIDS AND THE GOVERNMENT'S ESTIMATE, KANE WAS REQUESTED TO VERIFY ITS BID. BY LETTER DATED JUNE 11, 1970, KANE ADVISED THAT ITS BID WAS CORRECT AS SUBMITTED AND THAT THE "BID PRICE IS BASED ON PLANS AND SPECIFICATIONS AS INTERPRETED FOR THE MAIN ROOF ONLY, IN THE AMOUNT OF $119,456.00". THEREAFTER KANE ADVISED THAT ITS BID INCLUDED ONLY THE MAIN RECTANGULAR PORTION OF THE ROOF WITHOUT THE PROTRUSION ON THE SOUTHWEST CORNER, AS INDICATED ON THE KEY PLAN ON THE BOTTOM OF SHEET 1 OF THE DRAWING. THE GOVERNMENT INTENDED THAT THE SOUTHWEST CORNER WAS TO BE INCLUDED. KANE MAINTAINED THAT SINCE THE PROTRUSION AT THE SOUTHWEST CORNER WAS NOT SHOWN ON THE KEY PLAN, IT WAS NOT TO BE INCLUDED. KANE REFUSED TO PERFORM ALL THE WORK FOR THE AMOUNT BID, BUT OFFERED TO PERFORM THE WORK ON PROTRUSION AT THE SOUTHWEST CORNER, WHICH IT CONSIDERED TO BE ADDITIONAL WORK, FOR THE AMOUNT OF $13,000.00. HOWEVER, HEADQUARTERS, DEFENSE SUPPLY AGENCY, REFUSED TO APPROVE AN AWARD TO KANE ON THAT BASIS, SINCE IT WAS CONCLUDED THAT KANE'S INTERPRETATION OF THE SOLICITATION WAS UNREASONABLE, AND THAT THE RECTANGULAR PROTRUSION ON THE SOUTHWEST CORNER OF THE BUILDING WAS CLEARLY INCLUDED AS A PART OF THE AREA TO BE RE-ROOFED. THEREFORE, KANE'S BID WAS DISREGARDED ON ACCOUNT OF MISTAKE, AND THE AWARD WAS MADE TO KULZER ROOFING, INCORPORATED.

DUE TO LENGTH OF THE BUILDING THE DRAWING CONSISTS OF 3 SHEETS EACH OF WHICH COVERS A DIFFERENT AREA OF THE ROOF. ON THE BOTTOM OF EACH SHEET IS A SMALL DRAWING WITH THE LEGEND "KEY PLAN (NO SCALE) SHADED AREA INDICATES WORK ON THIS DRAWING." THIS KEY PLAN ON SHEET 1 DOES NOT INCLUDE THE ADDITIONAL RECTANGULAR PROTRUSION AT THE SOUTHWEST CORNER. HOWEVER, THE MAIN DRAWING ON PAGE 1 WHICH SHOWS THE DETAILS OF WORK TO BE PERFORMED INCLUDES SUCH PROTRUSION AND SHOWS DIMENSIONS, LOCATION OF DRAINS AND VENTS, AND CONTAINS THE STATEMENT "NEW BUILT UP ROOF (SLAG SURFACED) OVER NEW 2" INSULATION." ALSO, SUCH DRAWING SHOWS THE ELEVATOR SHAFT WHICH EXTENDS BEYOND THE ROOF AND CONTAINS THE STATEMENT WITH ARROWS POINTING TO THE EXTENDED SHAFT "PENTHOUSE ROOF, NEW SLAG SURFACED BUILT UP ROOF OVER NEW 2" INSULLATION". FURTHERMORE, THE ENTIRE ROOF AREA, INCLUDING THE PROTRUSION AT THE SOUTHWEST CORNER, IS ENCLOSED WITH A CONTINUOUS PARAPET WALL.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES INVOLVED, WE ALSO BELIEVE THAT KANE'S RELIANCE ON THE KEY PLAN AS INCLUDING ALL THE WORK TO BE PERFORMED WAS UNREASONABLE. ACCORDINGLY, WE FIND NO LEGAL BASIS TO QUESTION THE ADMINISTRATIVE ACTION TAKEN AND, THEREFORE, THE PROTEST MUST BE DENIED.