B-166173, APR. 22, 1969

B-166173, APR. 22, 1969

TO SOUTHEASTERN CONTROL AND CABLE TESTING, INC.:

WE REFER TO YOUR LETTER OF APRIL 9, 1969, REQUESTING US TO RECONSIDER OUR DECISION TO YOU OF APRIL 1, 1969, DENYING YOUR PROTEST AGAINST THE CANCELLATION OF INVITATION FOR BIDS NO. N62467-67-C-0599, FOR THE PROCUREMENT OF AN AIRFIELD LIGHTING SYSTEM FOR WHITING FIELD NAVAL AIR STATION, MILTON, FLORIDA.

IT IS YOUR CONTENTION THAT IN OUR DECISION WE WERE MISTAKEN AS TO THE THICKNESS OF THE CONCRETE SURFACE TO BE CUT. WE STATED IN OUR DECISION THAT "IN THIS CASE, THE PLANS INCORPORATED BY REFERENCE IN THE INVITATION CALLED FOR BIDDERS TO USE AS ONE ITEM IN DETERMINING THEIR BID PRICES A PAVEMENT THICKNESS OF 1 INCH.' HOWEVER, YOU STATE THAT "NOWHERE IN THE PLANS AND SPECIFICATIONS ARE WE ABLE TO FIND A STATEMENT THAT THE PAVEMENT TO BE CUT AND REMOVED WOULD BE ONE INCH.' IN YOUR APRIL 9 LETTER YOU FURTHER RELATE:

"* * * IT IS NOT UNCOMMON FOR AN OWNER TO HAVE NO KNOWLEDGE AS TO THE THICKNESS OF PAVEMENT TO BE CUT AND IT IS NOT UNCOMMON FOR PLANS AND SPECIFICATIONS OF THIS KIND TO NOT LIST THE THICKNESS OF PAVEMENT TO BE CUT BUT ONLY THE THICKNESS OF PAVEMENT TO BE REPLACED. * * *

"IT IS REPEATED THAT THE SPECIFICATION OF THE THICKNESS OF PAVEMENT TO BE REPLACED WITHOUT THE SPECIFICATION OF THE THICKNESS OF PAVEMENT TO BE CUT IS NOT AT ALL UNCOMMON. THIS FACT CANNOT BE OVER EMPHASIZED. THUS, YOU ARE TAKING A SPURIOUS POSITION ABOUT A PRACTICE IN COMPILING PLANS AND SPECIFICATIONS OF THIS KIND THAT IS SO USUAL THAT IT IS CONSIDERED STANDARD OPERATING PROCEDURE.'

YOUR APRIL 9 LETTER ALSO CONTAINS AN ARGUMENT TO THE EFFECT THAT OUR DECISION ASSUMED THAT HAD BIDDERS KNOWN THAT THE DEPTH OF EXISTING PAVEMENT WAS 7 TO 9 INCHES, THEIR BIDS WOULD HAVE BEEN LESS. YOU STATE THAT THE ASSUMPTION THAT "THE GREATER THE COST TO THE CONTRACTOR, THE LESS THE BID PRICE" IS THE HEIGHT OF ABSURDITY.

WE HAVE AGAIN REVIEWED THE PLANS AND SPECIFICATIONS SUPPLIED BY THE DEPARTMENT OF THE NAVY IN RESPONSE TO YOUR PROTEST. WE NOTE ESPECIALLY THAT NAVFAC DRAWING NO. 1024828 INCLUDES CROSS SECTIONS OF REPLACEMENT PAVEMENT FOR RUNWAY AND TAXIWAY AREAS AS WELL AS FOR NONRUNWAY AND NONTAXIWAY AREAS. THESE CROSS-SECTION DRAWINGS SHOW ASPHALTIC CONCRETE THICKNESSES FOR REPLACEMENT PAVEMENT ONLY. THEREFORE, THIS WOULD APPEAR TO SUBSTANTIATE YOUR STATEMENT CONCERNING THE BUSINESS PRACTICE OF SPECIFYING THE THICKNESS OF PAVEMENT TO BE REPLACED WITHOUT SPECIFYING THE THICKNESS OF PAVEMENT TO BE CUT. HOWEVER, WE ALSO NOTE ON THE ABOVE- REFERENCED DRAWING THAT FOR BOTH RUNWAY AND TAXIWAY PAVEMENT AND NONRUNWAY AND NONTAXIWAY PAVEMENT THERE ARE LINES INDICATIVE OF THE THICKNESS OF THE EXISTING ASPHALTIC CONCRETE. IN THE CASE OF NONRUNWAY AND NONTAXIWAY PAVEMENT, THE EXISTING CONCRETE THICKNESS IS SHOWN TO BE NEARLY IDENTICAL TO THE 1 INCH THICKNESS SPECIFIED FOR REPLACEMENT PAVEMENT. IN THE CASE OF RUNWAY AND TAXIWAY PAVEMENT, THE THICKNESS OF THE EXISTING ASPHALTIC CONCRETE IS SHOWN TO BE SLIGHTLY LESS THAN THE TOTAL 3-1/2 INCHES REQUIRED FOR REPLACEMENT PAVEMENT. NEITHER CROSS SECTION IS DRAWN TO SCALE. HOWEVER, NEITHER CROSS SECTION ON THE DRAWING SHOWS THE EXISTING PAVEMENT TO EVEN APPROXIMATE THE ACTUAL THICKNESS OF 7 TO 9 INCHES. IN VIEW THEREOF, WHILE WE AGREE THAT NO THICKNESS OF EXISTING PAVEMENT WAS STATED AS SUCH IN THE PLANS AND SPECIFICATIONS, WE ARE UNABLE TO REACH A CONCLUSION DIFFERENT FROM THAT IN OUR EARLIER DECISION. EVEN WITHOUT SPECIFYING THE EXACT THICKNESS OF EXISTING CONCRETE PAVEMENT, IT IS CLEAR THAT THE DRAWINGS WERE INACCURATE AND INADEQUATE TO DESCRIBE THE EXISTING STATE OF FACTS, AND THEREFORE WERE MISLEADING TO BIDDERS.

WE AGREE THAT IT WOULD BE ABSURD TO ASSUME THAT A CONTRACTOR WOULD LOWER HIS BID PRICE IN THE FACE OF GREATER COSTS. HOWEVER, SUCH WAS NOT THE IMPORT OF OUR DECISION. RATHER, THE CONTROLLING CONSIDERATION WAS THAT THE NAVY WOULD BE UNABLE FROM THE FACE OF THE BIDS TO ASSURE ITSELF THAT ALL BIDDERS WERE COMPETING ON A COMMON BASIS. THEREFORE, IN FAIRNESS TO ALL BIDDERS AND IN ORDER TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, THE NAVY DECIDED TO CANCEL THE INVITATION. IT IS TRUE THAT A BIDDER WHO HAD BEEN LED TO BELIEVE THAT ONLY 1 TO 3 INCHES OF CONCRETE WOULD HAVE TO BE REMOVED WOULD, ON READVERTISEMENT, PROBABLY RAISE HIS BID IN LIGHT OF KNOWLEDGE OF THE ACTUAL STATE OF AFFAIRS. HOWEVER, HAD AN AWARD BEEN MADE UNDER THE ORIGINAL INVITATION, WE THINK THAT A CONTRACTOR WOULD HAVE HAD A REASONABLE LEGAL BASIS FOR LATER ASSERTING A CLAIM FOR INCREASED COSTS & O- 8 & 5 & & 3 & & 9 # E &-- V UNITED STATES, 168 CT.CL. 692. FOR THIS REASON NOT ONLY DOES READVERTISEMENT ASSURE BIDDERS THAT THE COMPETITION WILL BE ON AN EQUAL BASIS BUT ALSO RELIEVES THE GOVERNMENT FROM A POTENTIAL CONTRACT LIABILITY.

ACCORDINGLY, WE FIND NO REASON TO DEPART FROM OUR DECISION OF APRIL 1, 1969.