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B-152853, MARCH 5, 1964, 43 COMP. GEN. 579

B-152853 Mar 05, 1964
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WHICH TOTALS SHOULD HAVE BEEN INCLUDED BUT WERE OMITTED FROM THE BIDS UNDER AN INVITATION PROVIDING IN CASE OF VARIATION BETWEEN UNIT PRICE AND EXTENSION. ARE NOT BIDS REFLECTING LUMP-SUM ADJUSTMENTS OF UNIT PRICE TOTALS PERMITTED UNDER THE "SPECIAL BID CONDITION" OF THE INVITATION. THE AWARD TO OTHER THAN THE BIDDER FAILING TO INDICATE THAT THE TOTALS STATED WERE INTENDED AS BID FIGURES WITHOUT REFERENCE TO ITEM QUOTATIONS WAS VALID AND PROPER. 1964: REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 8. BIDS WERE OPENED ON OCTOBER 24. EIGHT BIDS WERE RECEIVED. FOR BASE SCHEDULE B (RIGID PAVEMENT ALTERNATE) FULLER WARRIOR'S "TOTAL ALTERNATE B BASE BID" FIGURE WAS THE IDENTICAL AMOUNT . NOTE NO. 3 OF THE BID SCHEDULE STATED: "ALL OF THE EXTENSIONS OF THE UNIT PRICES SHOWN WILL BE SUBJECT TO VERIFICATION BY THE GOVERNMENT.

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B-152853, MARCH 5, 1964, 43 COMP. GEN. 579

BIDS - EVALUATION - AGGREGATE V. SEPARABLE ITEMS, PRICES, ETC. - TOTAL OF UNIT PRICES V. LUMP-SUM ADJUSTMENT PRICE LOW AGGREGATE, ALTERNATE BIDS ON TWO BASE SCHEDULES IN AMOUNTS LESS THAN THE TOTALS OF THE UNIT ITEMS, WHICH TOTALS SHOULD HAVE BEEN INCLUDED BUT WERE OMITTED FROM THE BIDS UNDER AN INVITATION PROVIDING IN CASE OF VARIATION BETWEEN UNIT PRICE AND EXTENSION, THE UNIT PRICE GOVERNS, ARE NOT BIDS REFLECTING LUMP-SUM ADJUSTMENTS OF UNIT PRICE TOTALS PERMITTED UNDER THE "SPECIAL BID CONDITION" OF THE INVITATION, WITH PROVISION FOR PRORATING THE LUMP-SUM ADJUSTMENT TO INDIVIDUAL UNIT PRICES, AND THE STATING OF THE MATHEMATICAL SUMS OF THE INDIVIDUAL ITEMS OF BOTH BASE SCHEDULES BEING NECESSARY TO ESTABLISH THE OFFERING OF LUMP-SUM ADJUSTMENTS, AND TO AVOID GIVING THE BIDDER AN OPTION TO ELECT AFTER BID OPENING TO STAND ON THE LUMP-SUM TOTALS OR ALLEGE ERROR, THE AWARD TO OTHER THAN THE BIDDER FAILING TO INDICATE THAT THE TOTALS STATED WERE INTENDED AS BID FIGURES WITHOUT REFERENCE TO ITEM QUOTATIONS WAS VALID AND PROPER.

TO SELLERS, CONNER AND CUNEO, MARCH 5, 1964:

REFERENCE IS MADE TO YOUR TELEGRAM OF NOVEMBER 8, 1963, SUPPLEMENTED BY LETTER OF NOVEMBER 12 AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF GEORGE A. FULLER COMPANY-WARRIOR CONSTRUCTORS, INC., A JOINT VENTURE, AGAINST REJECTION OF ITS BID UNDER IFB NO. ENG/NASA/-01-076-64 11, ISSUED BY THE MOBILE DISTRICT, CORPS OF ENGINEERS, UNITED STATES ARMY.

PURSUANT TO THE TERMS OF THE INVITATION, WHICH COVERED CONSTRUCTION OF SATURN SECOND STAGE (S-II) TEST FACILITIES AT MISSISSIPPI TEST FACILITY, BIDS WERE OPENED ON OCTOBER 24, 1963. EIGHT BIDS WERE RECEIVED, ONLY TWO OF WHICH REQUIRE CONSIDERATION IN CONNECTION WITH THIS PROTEST.

ON BASE SCHEDULE A (FLEXIBLE PAVEMENT ALTERNATE) WHICH CONSISTED OF 118 ITEMS OF WORK AND 15 ARTICLES OF SHOP EQUIPMENT, FULLER-WARRIOR INSERTED AS ITS "TOTAL ALTERNATE A BASE BID" (ITEMS 1 THROUGH 119O) THE FIGURE $13,232,000.00. THE JOINT VENTURE OF C. H. LEAVELL AND CO. AND PETER KIEWIT SUBMITTED A "TOTAL ALTERNATE A BASE BID" OF $13,391,872.64. FOR BASE SCHEDULE B (RIGID PAVEMENT ALTERNATE) FULLER WARRIOR'S "TOTAL ALTERNATE B BASE BID" FIGURE WAS THE IDENTICAL AMOUNT -- $13,232,000--- QUOTED FOR ALTERNATE A. LEAVELL AND KIEWIT DID NOT SUBMIT A BID PRICE ON ALTERNATE B.

NOTE NO. 3 OF THE BID SCHEDULE STATED: "ALL OF THE EXTENSIONS OF THE UNIT PRICES SHOWN WILL BE SUBJECT TO VERIFICATION BY THE GOVERNMENT. IN CASE OF VARIATION BETWEEN THE UNIT PRICE AND THE EXTENSION, THE UNIT PRICE WILL BE CONSIDERED TO BE THE BID.'

PURSUANT TO THIS PROVISION, THE PRICE EXTENSIONS OF THE FULLER WARRIOR BID WERE CHECKED AND CORRECTED. THE CORRECTED ITEM FIGURES WERE THEN ADDED AND IT WAS FOUND THAT THE TOTAL OF THE ITEM PRICES FOR ALTERNATE A WAS $13,834,037.73, OR $602,037.73 MORE THAN THE $13,232,000.00 INSERTED BY THE BIDDER ON THE LINE "TOTAL ALTERNATE A BASE BID" (ITEMS 1 THROUGH 119O). THE TOTAL OF THE ITEM PRICES FOR ALTERNATE A, AS SUBMITTED AND WITHOUT CORRECTION, WAS $13,834,468.25, OR $602,468.25 MORE THAN THE "TOTAL" BID FIGURE. UNDER ALTERNATE B THE CORRECTED TOTAL OF THE ITEM PRICES WAS $13,828,261.62, OR $596,261.62 MORE THAN THE "TOTAL" STATED IN THE BID.

THESE DIFFERENCES WERE BROUGHT TO THE ATTENTION OF FULLER-WARRIOR REPRESENTATIVES BY THE PROCURING DISTRICT, AND THE BIDDER'S REPRESENTATIVES EXPLAINED THAT THE "TOTAL" AMOUNT STATED IN THE BID HAD BEEN INTENDED TO REFLECT A LUMP-SUM DEDUCTION FROM THE ACTUAL TOTAL OF THE ITEMS INCLUDED, IN ACCORDANCE WITH THEIR INTERPRETATION OF A "SPECIAL BID CONDITION" APPEARING ON PAGE UP-26 OF THE BID SCHEDULE, WHICH INTERPRETATION THEY UNDERSTOOD HAD BEEN CONCURRED IN ORALLY BY REPRESENTATIVES OF THE DISTRICT ENGINEER'S OFFICE WHOM THEY HAD CONSULTED BEFORE BIDDING.

FOLLOWING MEETINGS BETWEEN PERSONNEL OF THE MOBILE DISTRICT AND REPRESENTATIVES OF BOTH FULLER-WARRIOR AND LEAVELL-KIEWIT (WHO HAD PROTESTED AGAINST AWARD OF A CONTRACT TO FULLER-WARRIOR) THE DISTRICT ENGINEER UNDER DATE OF OCTOBER 31, 1963, SUBMITTED THE MATTER THROUGH THE DIVISION ENGINEER TO THE CHIEF OF ENGINEERS, WITH THE FOLLOWING RECOMMENDATION:

AFTER WEIGHING THE FACTS AND STUDYING THE EVIDENCE SUBMITTED, AND AFTER ADVICE OF LEGAL COUNSEL, I AM CONVINCED THAT THE FULLER-WARRIOR JOINT VENTURE BIDDER HAS MADE A REASONABLE INTERPRETATION OF THE SPECIFICATIONS AND THAT THEY ARE IN FACT THE LOW BIDDER ON ALTERNATE BID A AND ALTERNATE BID B, AND THAT AWARD SHOULD BE MADE TO THIS FIRM ON THE BASIS OF ALTERNATE B.

UNDER DATE OF NOVEMBER 6, AND AFTER CONFERRING WITH COUNSEL FOR LEAVELL- KIEWIT, THE OFFICE OF THE CHIEF OF ENGINEERS RETURNED THE FILE BY INDORSEMENT READING AS FOLLOWS:

THE SUBJECT ACTION HAS BEEN REVIEWED AND THE AMOUNT OF $13,232,000 EACH FOR BASE BIDS A AND B ARE NOT CONSIDERED PROPER FOR CONSIDERATION AS THE BID OF THE JOINT VENTURE OF GEORGE A. FULLER COMPANY AND WARRIOR CONSTRUCTORS IN VIEW OF THE CIRCUMSTANCES SET FORTH IN THE REPORT OF THE CONTRACTING OFFICER. THE PROTEST OF LEAVELL AND COMPANY AND PETER KIEWIT SONS' COMPANY AGAINST THE CONSIDERATION OF FULLER WARRIOR AS LOW BIDDER IS THEREFORE SUSTAINED. AWARD ACTION CONSISTENT HEREWITH MAY BE TAKEN IF OTHERWISE PROPER.

ON THE MORNING OF NOVEMBER 8 A TELEGRAPHIC PROTEST AGAINST REJECTION OF THE FULLER-WARRIOR BID WAS RECEIVED IN THIS OFFICE AND COUNSEL FOR THAT BIDDER, WHO HAD PREVIOUSLY MADE AN UNSUCCESSFUL EFFORT TO OBTAIN AN INTERVIEW WITH PERSONNEL OF THE OFFICE OF THE CHIEF OF ENGINEERS, PRESENTED ADDITIONAL DOCUMENTATION OF ITS PROTEST. THE OFFICE OF THE CHIEF OF ENGINEERS WAS ADVISED ON THAT DAY OF THE RECEIPT OF THE PROTEST AND OF THE APPARENTLY SUBSTANTIAL NATURE OF THE GROUNDS PRESENTED. AWARD OF THE CONTRACT TO LEAVELL-KIEWIT WAS NEVERTHELESS MADE AT FOUR O-CLOCK ON THAT AFTERNOON.

ON THE MERITS, THE SINGLE QUESTION PRESENTED IS WHETHER THE ADMINISTRATIVE OFFICE WAS JUSTIFIED IN REFUSING TO CONSIDER THE FULLER WARRIOR BID AS AN OFFER TO PERFORM THE WORK ITEMIZED UNDER EITHER SCHEDULE A OR SCHEDULE B FOR THE PRICE OF $13,232,000 INSERTED AS THE TOTAL UNDER EACH SCHEDULE, AND THE ADDITIONAL WORK DESIGNATED AS OPTION NO. 1 UNDER EITHER SCHEDULE FOR $2,622,575.

IN SUPPORT OF ITS CONCLUSION THAT "THE AMOUNT OF $13,232,000 EACH FOR BASE BIDS A AND B ARE NOT CONSIDERED PROPER FOR CONSIDERATION AS THE BID OF THE JOINT VENTURE," THE OFFICE OF THE CHIEF OF ENGINEERS POINTS OUT THAT THE BIDDING FORM SPECIFICALLY REQUIRES BIDDERS TO QUOTE INDIVIDUAL LUMP-SUM OR UNIT PRICES (WITH EXTENSIONS FOR THE QUANTITIES INDICATED) ON EACH OF THE MORE THAN 100 INDIVIDUAL ITEMS COMPRISING EACH OF THE ALTERNATE SCHEDULES; THAT THE WORD "TOTAL" NECESSARILY CALLS FOR THE MATHEMATICAL SUM OF THE INDIVIDUAL ITEMS LISTED ABOVE; THAT THE LANGUAGE OF THE BID FORM IS "* * * THE UNDERSIGNED HEREBY PROPOSES TO PERFORM * * * IN STRICT COMPLIANCE WITH * * * FOR THE CONSIDERATION OF THE UNIT PRICES STATED OPPOSITE EACH ITEM OF THE UNIT PRICE SCHEDULE * * *; " AND THAT ANY OTHER INTERPRETATION OF THE BID WOULD IN EFFECT GIVE THE BIDDER AN OPTION TO ELECT AFTER BID OPENING TO STAND ON ITS STATED TOTAL BID OR TO ALLEGE ERROR AND ATTEMPT TO HAVE THE CORRECTED TOTAL OF ITS ITEM BIDS CONSIDERED AS ITS BID.

FULLER-WARRIOR'S CONTENTION, WHICH WAS FULLY DEVELOPED BY THE DISTRICT ENGINEER AS SET OUT IN HIS SUBMISSION OF OCTOBER 31 TO THE CHIEF OF ENGINEERS, IS BASED UPON THE "SPECIAL BID CONDITION" APPEARING ON PAGE UP- 26 OF THE UNIT PRICE SCHEDULE, WHICH PROVIDES AS FOLLOWS:

IF A BID OR MODIFICATION TO A BID BASED ON UNIT PRICES IS SUBMITTED AND PROVIDES FOR A LUMP-SUM ADJUSTMENT TO THE TOTAL ESTIMATED COST, THE APPLICATION OF THE LUMP-SUM ADJUSTMENT TO EACH UNIT PRICE, INCLUDING LUMP- SUM UNITS, IN THE BID SCHEDULE MUST BE STATED OR, IF IT IS NOT STATED, THE BIDDER AGREES THAT THE LUMP-SUM ADJUSTMENT SHALL BE APPLIED ON A PRORATE BASIS TO EVERY UNIT PRICE IN THE BID SCHEDULE.

SIMPLY STATED, FULLER-WARRIOR'S POSITION IS THAT ITS QUOTATION OF $13,232,000 AS ITS "TOTAL BASE BID" FOR EACH OF THE ALTERNATES AMOUNTED TO --- OR IN THE LANGUAGE OF THE QUOTED CONDITION DID "PROVIDE FOR"--- A LUMP -SUM ADJUSTMENT TO THE TOTAL ESTIMATED COST, THE AMOUNT OF THE ADJUSTMENT BEING THE DIFFERENCE BETWEEN THE "TOTAL BASE BID" AND THE SUM OF THE INDIVIDUAL ITEMS, AND THE APPORTIONMENT OR ALLOCATION OF THE ADJUSTMENT BEING FOR PRO-RATING TO THE SEVERAL INDIVIDUAL UNIT PRICES IN ACCORDANCE WITH THE SPECIAL BID CONDITION.

THE OFFICE OF THE CHIEF OF ENGINEERS CONTENDS THAT THE ONLY WAY IN WHICH IT COULD BE CLEARLY SHOWN THAT A LUMP-SUM ADJUSTMENT WAS BEING OFFERED BY A BIDDER WAS TO SHOW A MATHEMATICAL TOTAL FOR THE ITEMS INCLUDED, AND THEN TO INSERT THE AMOUNT OF ANY ADJUSTMENT OFFERED.

THE PROTESTING BIDDER DOES NOT REST ITS CASE SOLELY ON THE FACT OF THE BID, BUT POINTS OUT FURTHER FACTS WHICH IT CONTENDS PUT THE GOVERNMENT ON ACTUAL NOTICE OF THE INTENT OF THEIR BID, AND IN FACT COMMIT THE GOVERNMENT TO ITS INTERPRETATION OF ITS BID. THE FACTS RELIED ON ARE THAT ABOUT 10 DAYS BEFORE THE BID OPENING DATE, MR. W. E. GAREY, CONSTRUCTION MANAGER OF THE JOINT VENTURE, UNDERTOOK TO CHECK WITH THE DISTRICT ENGINEER'S OFFICE, FOR THE PURPOSE OF CONFIRMING AND CLARIFYING FULLER- WARRIOR'S INTERPRETATION OF THE BIDDING REQUIREMENTS AND TO MAKE CERTAIN THAT THEIR INTENDED METHOD OF BIDDING WOULD BE ACCEPTABLE. MR. GAREY'S INITIAL CONTACT WAS WITH COLONEL DAVID ROBERTS, DEPUTY DISTRICT ENGINEER FOR NASA SUPPORT. AFTER STATING HIS QUESTION, MR. GAREY WAS REFERRED TO ANOTHER EMPLOYEE OF THE DISTRICT ENGINEER'S OFFICE, WHO IN TURN REFERRED HIM ON TO ANOTHER. AFTER SOME TEN OR TWELVE REFERRALS, MR. GAREY FINALLY WAS PUT IN TOUCH WITH MR. HIGGINS, CHIEF OF THE PROCUREMENT BRANCH, WHO UNDERTOOK TO ANSWER MR. GAREY'S QUESTION.

THE EXACT NATURE OF THE CONVERSATION BETWEEN MESSRS. HIGGINS AND GAREY IS IN DISPUTE, EACH GIVING A DIFFERENT VERSION. THERE SEEMS TO BE SUBSTANTIAL AGREEMENT, HOWEVER, THAT MR. GAREY WAS ADVISED THAT A BID CONTAINING ONLY TOTAL PRICES FOR EACH OF THE ALTERNATE SCHEDULES AND OPTIONS WOULD BE CONSIDERED NONRESPONSIVE, AND THAT ANY MODIFICATION OF TOTAL BID PRICES SHOULD CITE THE SCHEDULE ITEMS TO WHICH SUCH MODIFICATION SHOULD APPLY, ELSE THE GOVERNMENT WOULD HAVE TO PRORATE THE MODIFICATION TO ALL ITEMS OF THE SCHEDULE. ACCORDING TO MR. GAREY, HE EXPLAINED IN CONSIDERABLE DETAIL HOW THE FULLER COMPANY PROPOSED TO GET ITS FINAL BID FIGURES IN, AND MR. HIGGINS INDICATED CONCURRENCE THEREIN. MR. HIGGINS STATES THAT THE PROCEDURE FOR BIDDING, AS ALLEGED BY FULLER-WARRIOR, WAS NEVER UNDERSTOOD BY HIM, AND THAT HE DID NOT CONCUR IN ANY UNDERSTANDING THAT THERE WOULD BE A DIFFERENCE BETWEEN THE ITEM TOTALS AND THE TOTAL BID.

WE BELIEVE IT CAN PROPERLY BE CONCLUDED FROM THE STATEMENTS OF BOTH PARTIES THAT THE SPECIFIC QUESTION, WHETHER A LUMP-SUM ADJUSTMENT WOULD HAVE TO BE EXPRESSLY DESIGNATED AS SUCH, WAS NEITHER ASKED NOR ANSWERED. VIEWING THE BID FROM THE POSITION OF THE CONTRACTING OFFICER AT THE TIME OF BID OPENING, WE THUS SEE A BID WHICH ON ITS FACE APPEARS TO GIVE AS A TOTAL OF AN ITEMIZED SCHEDULE A FIGURE WHICH, WHEN CHECKED, IS FOUND TO BE ERRONEOUS BY APPROXIMATELY $600,000. UNDER THE TERMS OF THE INVITATION, THE STATED UNIT PRICES OF INDIVIDUAL ITEMS ARE GIVEN PREFERENCE OVER THE PRICE EXTENSIONS IN THE EVENT OF DISCREPANCIES BETWEEN THEM, AND THE LANGUAGE OF THE BID FORM IS THAT THE BIDDER OFFERS TO PERFORM THE WORK FOR "THE UNIT PRICES STATED OPPOSITE EACH ITEM OF THE UNIT PRICE SCHEDULE.' THE PAYMENT PROVISIONS OF THE CONTRACT FORM THEREFORE RELATE ALL PAYMENTS TO THE INDIVIDUAL ITEM PRICES STATED IN THE SCHEDULE. IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, WE FEEL THAT THE NORMAL INTERPRETATION OF THE BID WOULD BE THAT THE INDIVIDUAL ITEM PRICES STATED IN THE SCHEDULE (WHETHER LUMP-SUM UNITS OR ESTIMATED QUANTITIES AT UNIT RATES) WOULD CONTROL AND THE STATED TOTAL WOULD BE SUBJECT TO CORRECTION TO CONFORM TO THE ACTUAL TOTAL OF THE ITEM PRICES.

HERE, HOWEVER, THE BIDDER CONTENDS THAT THERE WERE CLEAR INDICATIONS TO THE CONTRARY, IN THAT THE LANGUAGE OF THE SPECIAL CONDITION QUOTED ABOVE PERMITTED THE SUBMISSION OF A BID PROVIDING FOR A LUMP-SUM ADJUSTMENT TO THE TOTAL ESTIMATED COST, TO BE PRO-RATED OVER ALL THE UNIT PRICES, AND THAT THE FACT THAT THE TOTAL STATED IN ITS BID WAS SO OBVIOUSLY UNRELATED TO THE ACTUAL TOTAL OF THE ITEMS REQUIRED THE CONCLUSION (ESPECIALLY IN THE LIGHT OF THE BIDDER'S PRIOR INQUIRIES OF THE DISTRICT ENGINEER'S STAFF) THAT THE TOTAL STATED WAS INTENDED AS A NET BID REFLECTING SUCH A LUMP-SUM ADJUSTMENT.

FACED WITH THIS PROBLEM, THE CONTRACTING OFFICER CALLED ON THE BIDDER FOR EXPLANATION OF ITS BID AND PERMITTED IT TO SUBMIT WORKPAPERS AND OTHER EVIDENCE INDICATING HOW IT HAD COMPUTED ITS BID AND THAT IT HAD DELIBERATELY INSERTED THE $13,232,000 FIGURE AT THE LAST POSSIBLE MOMENT AS ITS INTENDED TOTAL BID ON EACH SCHEDULE. THE CONTRACTING OFFICER WAS CONVINCED OF THE TRUTH OF THE BIDDER'S EXPLANATIONS AND RECOMMENDED AWARD OF A CONTRACT ON THAT BASIS.

WITHOUT QUESTIONING THE CONTRACTING OFFICER'S CONCLUSION OR THE BIDDER'S ENTIRE GOOD FAITH, WE BELIEVE THAT IN THE CIRCUMSTANCES THE CONTRACTING OFFICER DEPARTED FROM PROPER COMPETITIVE BIDDING PROCEDURE IN PERMITTING THE BIDDER TO BRING IN SUCH EXTRANEOUS EVIDENCE TO ESTABLISH ITS INTENTION. HAD IT BEEN MORE TO ITS INTEREST, AS DETERMINED AFTER EXPOSURE OF ALL THE BIDS, THE BIDDER COULD HAVE UNDERTAKEN, MERELY BY FAILING TO PRESENT ANY CONTRARY SHOWING, TO HAVE ITS BID CONSIDERED IN THE AMOUNT OF THE CORRECTED TOTAL. UNDER SUCH CIRCUMSTANCES, WE HAVE SERIOUS DOUBT WHETHER THE BIDDER COULD HAVE BEEN REQUIRED TO PERFORM AT THE $13,232,000 FIGURE, AND IT APPEARS TO HAVE BEEN FOR THIS REASON THAT THE OFFICE OF THE CHIEF OF ENGINEERS, REJECTED THE CONTRACTING OFFICER'S RECOMMENDATION. UNDER THE PROVISIONS OF PARAGRAPH 1 OF STANDARD FORM 22, INSTRUCTION TO BIDDERS, WHICH WAS INCLUDED IN THE IFB BY REFERENCE, BIDDERS WERE ADVISED AS FOLLOWS:

1. EXPLANATION TO BIDDERS. ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., MUST BE REQUESTED IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH BIDDERS BEFORE THE SUBMISSION OF THEIR BIDS. ANY INTERPRETATION MADE WILL BE IN THE FORM OF AN AMENDMENT OF THE INVITATION FOR BIDS, DRAWINGS, SPECIFICATIONS, ETC., AND WILL BE FURNISHED TO ALL PROSPECTIVE BIDDERS. ITS RECEIPT BY THE BIDDER MUST BE ACKNOWLEDGED IN THE SPACE PROVIDED ON THE BID FORM (STANDARD FORM 21) OR BY LETTER OR TELEGRAM RECEIVED BEFORE THE TIME SET FOR OPENING OF BIDS. ORAL EXPLANATION OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING.

CLEARLY, FULLER-WARRIOR COULD, AND SHOULD, HAVE AVAILED ITSELF OF THE OPPORTUNITY UNDER THIS INSTRUCTION TO HAVE ANY DOUBT RELATIVE TO THE INTENT OF THE LUMP-SUM ADJUSTMENT PROVISION OF THE INVITATION CLARIFIED BY WRITTEN AMENDMENT TO THE INVITATION. ADDITIONALLY, SINCE THE AMBIGUITY IN ITS BID WAS CREATED BY THE BIDDER, AND COULD READILY HAVE BEEN AVOIDED BY MERELY INCLUDING IN THE BID SOME REFERENCE, HOWEVER WORDED, TO SHOW THAT THE AMOUNT STATED AS THE TOTAL WAS KNOWINGLY AND PURPOSELY DIFFERENT FROM THE MATHEMATICAL TOTAL OF THE ITEMS, OR THAT IT INCLUDED A LUMP-SUM ADJUSTMENT, OR ANY OTHER CLEAR INDICATION THAT THE TOTAL STATED WAS INTENDED AS THE BID FIGURE WITHOUT REFERENCE TO THE ITEM QUOTATIONS, WE DO NOT FEEL THAT WE CAN PROPERLY REFUSE TO REGARD THE AWARD MADE AS A VALID AND PROPER ONE. REINER V. UNITED STATES, CT.CL. NO. 431-57, DECEMBER 13, 1963.

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