B-58637, JULY 17, 1946, 26 COMP. GEN. 49

B-58637: Jul 17, 1946

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WHO FURNISHED THE REQUIRED DEPOSIT ON THE DAY IMMEDIATELY FOLLOWING THE DAY BIDS WERE OPENED. 1946: I HAVE YOUR LETTER OF JUNE 20. BIDS WERE SOLICITED FROM 23 WRECKERS FOR THE PURCHASE AND REMOVAL OF 7 CONDEMNED BUILDINGS AT GALLINGER MUNICIPAL HOSPITAL. IN RESPONSE THE FOLLOWING BIDS WERE RECEIVED AND OPENED AT 2:00 P.M. A DEPOSIT OF $500 AS A GUARANTEE THAT THE PURCHASER WILL REMOVE THE BUILDINGS AND MATERIALS IN ACCORDANCE WITH THE PROPOSAL. CLAIMING HIS BID WAS THE HIGHEST COMPLYING WITH INSTRUCTIONS TO BIDDERS. IT IS REQUESTED THAT THE COMMISSIONERS BE ADVISED WHETHER THEY MAY NOT ACCEPT THE OFFICER OF THE GENERAL WRECKING COMPANY OR WHETHER THE BID OF THE GENERAL WRECKING COMPANY SHOULD BE DISREGARDED IN MAKING THE AWARDS AND THE AWARD MADE TO THE SECOND HIGH BIDDER.

B-58637, JULY 17, 1946, 26 COMP. GEN. 49

BIDS - REJECTION - SECURITY FURNISHING DEFICIENCIES THE FACT THAT THE HIGH BIDDER IN RESPONSE TO AN INVITATION TO BID FOR THE PURCHASE AND REMOVAL OF CERTAIN CONDEMNED BUILDINGS FAILED, INADVERTENTLY, TO ACCOMPANY HIS BID WITH A CASH DEPOSIT GUARANTEEING PERFORMANCE, AS REQUIRED BY THE INVITATION TO BID, BEING MERELY AN IMMATERIAL DEFICIENCY IN THE BID AND IN NOWISE AFFECTING THE BID PRICE OR PREJUDICING OTHER BIDDERS, AFFORDS NO LEGAL BASIS FOR NOT AWARDING THE CONTRACT TO SUCH OTHERWISE ELIGIBLE HIGH BIDDER, WHO FURNISHED THE REQUIRED DEPOSIT ON THE DAY IMMEDIATELY FOLLOWING THE DAY BIDS WERE OPENED.

ACTING COMPTROLLER GENERAL YATES TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, JULY 17, 1946:

I HAVE YOUR LETTER OF JUNE 20, 1946, AS FOLLOWS:

ON MAY 1, 1946, BIDS WERE SOLICITED FROM 23 WRECKERS FOR THE PURCHASE AND REMOVAL OF 7 CONDEMNED BUILDINGS AT GALLINGER MUNICIPAL HOSPITAL, AND IN RESPONSE THE FOLLOWING BIDS WERE RECEIVED AND OPENED AT 2:00 P.M. MAY 13, 1946:

CHART

1. GENERAL WRECKING COMPANY, BRENTWOOD ROAD AND W

STREET NE --------------------------------------- $1,501.76

2. DEPENDABLE WRECKING COMPANY, ARLINGTON, VA. -- 1,400.00

3. L. S. RORER, 473 H STREET NW ------------------- 1,105.00

4. ACE WRECKING AND BUILDING MATERIAL COMPANY,

4002 MINNESOTA AVENUE NE ----------------------- 1,005.55

5. I. S. BAPTIST, 5036 SHERIFF ROAD NE ----------- 900.00

6. THE PINES WRECKING COMPANY, 2423 N. 16TH STREET,

ARLINGTON, VA. ---------------------------------- 500.00

7. CLEVELAND WRECKING COMPANY, PHILADELPHIA, PA.

CHARGE ------------------------------------------- 3,850.00

PARAGRAPH 3 OF " INSTRUCTIONS TO BIDDERS" REQUESTS, IN ADDITION TO DEPOSIT OF THE PURCHASE PRICE, A DEPOSIT OF $500 AS A GUARANTEE THAT THE PURCHASER WILL REMOVE THE BUILDINGS AND MATERIALS IN ACCORDANCE WITH THE PROPOSAL. THE GENERAL WRECKING COMPANY WHICH SUBMITTED THE HIGH BID FAILED TO ENCLOSE A CERTIFIED CHECK FOR $500 AS A GUARANTEE AS REQUESTED. ALL THE OTHER BIDDERS COMPLIED WITH THE REQUIREMENTS OF THE PROPOSAL. IMMEDIATELY UPON THE OPENING OF BIDS, MR. ALEXANDER BULLOCK, REPRESENTING THE DEPENDABLE WRECKING COMPANY, UPON LEARNING THAT THE GENERAL WRECKING COMPANY HAD NOT COMPLIED WITH INSTRUCTIONS TO FURNISH A $500 GUARANTEE DEPOSIT, IMMEDIATELY ENTERED HIS ORAL PROTEST, CLAIMING HIS BID WAS THE HIGHEST COMPLYING WITH INSTRUCTIONS TO BIDDERS, AND ON MAY 20, 1946, SUBMITTED THEIR CERTIFIED CHECK FOR $500 AS A GUARANTEE TO THE AUDITOR.

IT IS REQUESTED THAT THE COMMISSIONERS BE ADVISED WHETHER THEY MAY NOT ACCEPT THE OFFICER OF THE GENERAL WRECKING COMPANY OR WHETHER THE BID OF THE GENERAL WRECKING COMPANY SHOULD BE DISREGARDED IN MAKING THE AWARDS AND THE AWARD MADE TO THE SECOND HIGH BIDDER, THE DEPENDABLE WRECKING COMPANY.

THE PROPOSAL IN QUESTION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

3. IN ADDITION TO THE PURCHASE PRICE, A DEPOSIT OF $500.00 WILL BE REQUIRED AS A GUARANTEE THAT THE PURCHASER WILL REMOVE THE BUILDING AND ALL MATERIALS AND ANY DEBRIS INCIDENT THERETO, FILLING ALL TRENCHES, CELLARS, AND EXCAVATIONS TO THE LEVEL OF THE EXISTING GRADE WITHIN 60 DAYS FROM THE DATE OF RECEIPT OF THE COMMISSIONERS' ORDER ACCEPTING HIS OR THEIR PROPOSAL; FAILING TO DO SO, THE PURCHASE AND DEPOSIT MONEY WILL BE FORFEITED TO THE DISTRICT OF COLUMBIA. THE COMMISSIONERS WILL THEN DISPOSE OF THE PROPERTY IN SUCH MANNER AS THEY MAY DEEM TO THE BEST INTEREST OF THE DISTRICT OF COLUMBIA.

4. A CERTIFIED CHECK PAYABLE TO THE ORDER OF THE COLLECTOR OF TAXES, D.C., EQUAL TO THE AMOUNT OF THE PROPOSAL, TOGETHER WITH A CERTIFIED CHECK, COVERING THE REQUIRED DEPOSIT MUST BE SUBMITTED WITH PROPOSAL AS A GUARANTEE THAT THE BIDDER WILL CARRY OUT THE TERMS AS SET FORTH.

5. THE RIGHT IS RESERVED BY THE COMMISSIONERS TO REJECT ANY OR ALL PROPOSALS IF IT IS DEEMED TO THE BEST INTEREST OF THE DISTRICT OF COLUMBIA.

IT IS REPORTED BY THE PROPERTY SURVEY OFFICER THAT AS SOON AS THE SEALED BIDS WERE OPENED AND THE BIDS ANNOUNCED TO THE BIDDERS IN ATTENDANCE--- AT WHICH TIME IT WAS NOTED THAT WHILE THE GENERAL WRECKING COMPANY HAD SUBMITTED WITH ITS PROPOSAL A CERTIFIED CHECK IN THE TOTAL AMOUNT OF ITS BID, IT HAD FAILED TO ENCLOSE A CERTIFIED CHECK IN THE AMOUNT OF $500 AS A GUARANTEE AS REQUIRED BY THE PROPOSAL--- MESSRS. MILZMAN AND HOFFMAN OF THE GENERAL WRECKING COMPANY DECLARED THAT THE DEPOSIT OF THE GUARANTEE HAD BEEN OMITTED THROUGH INADVERTENCE AND THAT A CERTIFIED CHECK FOR THE CORRECT AMOUNT THEREOF WOULD BE SUBMITTED AT ONCE. IT IS OF RECORD THAT THE GENERAL WRECKING COMPANY SUBMITTED THEIR CERTIFIED CHECK IN THE AMOUNT OF $500 TO COVER SAID GUARANTEE THE NEXT DAY, OR, ON MAY 14, 1946.

IT LONG HAS BEEN RECOGNIZED THAT IN CONNECTION WITH THE AWARDING OF PUBLIC CONTRACTS NO BIDDER ACQUIRES AN ABSOLUTE RIGHT TO AN AWARD OF PUBLIC BUSINESS BUT, RATHER, THE PUBLIC INTEREST IS FIRST FOR CONSIDERATION IN THE MAKING OF SUCH AWARD. ALSO, IT CONSISTENTLY HAS BEEN HELD THAT THE BID OF AN OTHERWISE LOW BIDDER FOR FURNISHING SUPPLIES TO THE GOVERNMENT MAY NOT BE SUMMARILY REJECTED BECAUSE OF FAILURE TO FURNISH SOMETHING THAT IS REQUIRED IN THE INVITATION TO BID BUT WHICH DOES NOT AFFECT, IN ANY WAY, THE PRICE, QUALITY, ETC., OF THE ARTICLES TO BE FURNISHED. THUS, IT HAS BEEN HELD THAT A LOW BIDDER WHO FAILED TO SUBMIT WITH ITS BID A SAMPLE OF THE SUPPLIES TO BE FURNISHED AS REQUIRED IN THE INVITATION TO BID, MAY SUBSEQUENTLY BE AFFORDED THE OPPORTUNITY TO COMPLY WITH SUCH REQUIREMENT. SEE 16 COMP. GEN. 65. ALSO, IN A NUMBER OF DECISIONS OF THE ACCOUNTING OFFICERS, IT HAS BEEN HELD THAT THE FAILURE OF A BIDDER TO SUBMIT A BID BOND WITH ITS BID, AS REQUIRED BY THE INVITATION TO BID, IS NOT A MATERIAL DEFICIENCY IN THE BID, BUT, RATHER, IS AN INFORMALITY WHICH MAY BE WAIVED BY A CONTRACTING OFFICER WHEN SUCH ACTION IS IN THE PUBLIC INTEREST. SEE 14 COMP. GEN. 305, ID. 559; 16 ID. 493, ID. 809.

IN THE PRESENT CASE, WHILE THE BOND REQUIRED TO BE FURNISHED WITH THE BID WAS FOR THE PURPOSE OF GUARANTEEING THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THAT THE CONTRACTOR WOULD ENTER ON THE PERFORMANCE OF, AND WOULD SATISFACTORILY COMPLETE, THE WORK REQUIRED UNDER THE PROPOSAL, SUCH BOND WAS IN THE NATURE OF SECURITY TO INDEMNIFY THE DISTRICT OF COLUMBIA IN THE EVENT OF ITS FAILURE PROPERLY TO COMPLETE THE WORK INVOLVED, AND WAS TO BE REFUNDED TO THE CONTRACTOR UPON THE SUCCESSFUL COMPLETION OF THE PROJECT. CLEARLY, SUCH BOND DID NOT AFFECT, IN ANY WAY, THE AGREED PRICE OF THE WORK TO BE PERFORMED. NOR DOES IT APPEAR THAT THE GENERAL WRECKING COMPANY, BY ITS FAILURE TO HAVE FURNISHED SUCH BOND WITH ITS BID, WAS ATTEMPTING TO, OR DID, OBTAIN ANY UNDUE ADVANTAGE THEREBY TO THE DETRIMENT OF THE DEPENDABLE WRECKING COMPANY OR ANY OF THE OTHER BIDDERS.

CONSIDERING SUCH CIRCUMSTANCES IN THE LIGHT OF THE REFERRED-TO DECISIONS OF THE ACCOUNTING OFFICERS, AND HAVING REGARD FOR THE FACT THAT A CERTIFIED CHECK IN THE AMOUNT OF THE REQUIRED GUARANTEE WAS FURNISHED BY THE GENERAL WRECKING COMPANY ON MAY 14, 1946, THE DAY IMMEDIATELY FOLLOWING THE PRESCRIBED DATE FOR THE OPENING OF THE BIDS, THERE IS PERCEIVED NO LEGAL BASIS FOR NOT AWARDING THE CONTRACT TO THE GENERAL WRECKING COMPANY, UNDER WHOSE BID THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS TO RECEIVE $101.76 MORE THAN UNDER THE BID OF THE DEPENDABLE WRECKING COMPANY, THE NEXT HIGH BIDDER.

THE SEVERAL BIDS, TOGETHER WITH ALL RELATED CORRESPONDENCE, ARE RETURNED HEREWITH.