B-177517, MAR 19, 1973

B-177517: Mar 19, 1973

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WAS MISINFORMED TO ITS DETRIMENT BY THE CONTRACTING AGENCY. SINCE THE REQUESTED PRICE INCREASE IS FAIR AND REASONABLE AND DOES NOT DISPLACE THE CONTRACTOR AS THE LOWEST BIDDER. SECRETARY: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 22. TWO OF WHICH ARE NOT INVOLVED HERE. " DELINEATED THE GEOGRAPHIC BOUNDARIES OF EACH ZONE AND FURTHER PROVIDED: "IF ADDITIONAL INFORMATION ON ZONES IS DESIRED. VOWELL WAS IN POSSESSION OF MAPS USED IN PREVIOUS SOLICITATIONS. THE ZONES WERE RENUMBERED SO THAT ZONE 2 BECAME ZONE 1 AND ZONE 3 BECAME ZONE 2. WAS ADVISED THAT THE ZONES WERE THE SAME AS THOSE SHOWN ON THE MAPS THAT HAD BEEN INCLUDED IN PREVIOUS SOLICITATIONS WHICH VOWELL HAD IN ITS POSSESSION. THIS WAS ERRONEOUS SINCE THE ZONES HAD.

B-177517, MAR 19, 1973

CONTRACT - REFORMATION - MISINFORMED CONTRACTOR DECISION ALLOWING REFORMATION OF A CONTRACT BETWEEN THE VOWELL CONSTRUCTION COMPANY AND THE BUREAU OF RECLAMATION FOR THE DELIVERY OF READY-MIXED CONCRETE. SINCE THE CONTRACTOR, SEEKING ADDITIONAL INFORMATION IN STRICT ACCORDANCE WITH THE PROVISIONS OF THE SOLICITATION, WAS MISINFORMED TO ITS DETRIMENT BY THE CONTRACTING AGENCY, AND SINCE THE REQUESTED PRICE INCREASE IS FAIR AND REASONABLE AND DOES NOT DISPLACE THE CONTRACTOR AS THE LOWEST BIDDER, THE CONTRACT MAY BE REFORMED IN ACCORDANCE WITH THE CONTRACTOR'S PREVIOUSLY PUBLISHED PRICE LIST.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 22, 1972, FROM THE ACTING DIRECTOR OF SURVEY AND REVIEW, REQUESTING OUR DECISION WHETHER CONTRACT NO. 14-06-500-1976 BETWEEN THE BUREAU OF RECLAMATION AND THE VOWELL CONSTRUCTION COMPANY MAY BE REFORMED BECAUSE THE CONTRACT DID NOT EXPRESS THE ACTUAL INTENTION OF THE PARTIES.

THE BIDDING SCHEDULE INVOLVED CONSISTED OF SIX ITEMS, TWO OF WHICH ARE NOT INVOLVED HERE. ITEMS 1 AND 2 CALLED FOR DELIVERY OF READY MIXED CONCRETE TO ZONE 1, AND ITEMS 3 AND 4 CALLED FOR DELIVERY OF READY-MIXED CONCRETE TO ZONE 2.

CLAUSE B-4 OF THE CONTRACT SPECIAL PROVISIONS, ENTITLED "ZONE BOUNDARIES," DELINEATED THE GEOGRAPHIC BOUNDARIES OF EACH ZONE AND FURTHER PROVIDED: "IF ADDITIONAL INFORMATION ON ZONES IS DESIRED, THE BIDDERS MAY CONTACT MR. GUY B. O'ROARK, BUREAU OF RECLAMATION, RIO GRANDE PROJECT.

VOWELL WAS IN POSSESSION OF MAPS USED IN PREVIOUS SOLICITATIONS. THESE MAPS DELINEATED 3 ZONES IDENTIFIED AS ZONE 1, 2, AND 3. THE INSTANT SOLICITATION DID NOT INCLUDE A MAP OR DRAWING BUT DESCRIBED, UNDER PARAGRAPH B-4 OF THE SPECIAL PROVISIONS, ZONES BY GEOGRAPHIC BOUNDARIES ONLY, AS INDICATED ABOVE. ALTHOUGH THE SOLICITATION ADOPTED IDENTICAL BOUNDARY LINES WITH THOSE USED PREVIOUSLY, THE ZONES WERE RENUMBERED SO THAT ZONE 2 BECAME ZONE 1 AND ZONE 3 BECAME ZONE 2.

PRIOR TO SUBMISSION OF ITS BID, VOWELL TELEPHONED THE EL PASO OFFICE FOR CLARIFICATION OF THE ZONE NUMBERS, AND WAS ADVISED THAT THE ZONES WERE THE SAME AS THOSE SHOWN ON THE MAPS THAT HAD BEEN INCLUDED IN PREVIOUS SOLICITATIONS WHICH VOWELL HAD IN ITS POSSESSION. THIS WAS ERRONEOUS SINCE THE ZONES HAD, IN FACT, BEEN RENUMBERED.

IN RELIANCE UPON SUCH ADVICE, VOWELL SUBMITTED A BID BASED ON THE ZONES ENUMERATED IN THE OLD MAPS. HAD THE CONTRACTOR COMPUTED ITS BID ON THE BASIS OF THE PROPER ZONES, THE BIDS WOULD HAVE BEEN $11.02 PER CUBIC YARD FOR ITEMS 1 AND 2 INSTEAD OF $10.02, AND $12.10 PER CUBIC YARD FOR ITEMS 3 AND 4 INSTEAD OF $11.10. THE FOREGOING REFLECTS A TOTAL ESTIMATED CONTRACT PRICE INCREASE OF $17,040.

THE BUREAU OF RECLAMATION CONSIDERS THE REQUESTED PRICE INCREASE, WHICH IS BASED ON VOWELL'S PUBLISHED PRICE LIST PUBLICLY AVAILABLE PRIOR TO BID OPENING, TO BE FAIR AND REASONABLE AND REPRESENTS WHAT THE CONTRACTOR WOULD HAVE BID BUT FOR THE MISINFORMATION FURNISHED BY THE GOVERNMENT. FURTHER, WE ARE ADVISED THAT THE INCREASE IN THE CONTRACT PRICE WOULD NOT DISPLACE THE CONTRACTOR AS THE LOWEST BIDDER UNDER THE ADVERTISED BIDDING SCHEDULE.

THE CONTRACTOR, SEEKING ADDITIONAL INFORMATION WITH RESPECT TO THE ZONES, IN STRICT ACCORDANCE WITH THE PROVISION OF THE SOLICITATION, WAS ADMITTEDLY MISINFORMED TO ITS DETRIMENT BY SOMEONE SPEAKING FOR AND IN THE ABSENCE OF THE INDIVIDUAL DESIGNATED IN THE SOLICITATION. IN THE CIRCUMSTANCES, THE CONTRACT MAY BE REFORMED TO REFLECT A PRICE OF $11.02 PER CUBIC YARD FOR ITEMS 1 AND 2 AND $12.10 PER CUBIC YARD FOR ITEMS 3 AND 4.