B-182601, JUN 3, 1975

B-182601, JUN 3, 1975

REQUEST BY AGENCY FOR DECISION ON ALLEGED DOUBTFUL "ERROR IN BID" WHERE CONTRACTOR CLAIMS INCREASE IN PRICE ON BASIS THAT IT NEVER AGREED TO FURNISH AT ITS BID PRICE CERTAIN REQUIREMENTS DISCOVERED AFTER AWARD TO HAVE BEEN EXCLUDED FROM COPY OF SPECIFICATION ORIGINALLY FURNISHED TO BIDDER, MAY NOT BE CONSIDERED UNDER BID CORRECTION PROCEDURES.

SWEITZER CONSTRUCTION COMPANY:

THE VETERANS ADMINISTRATION HAS REQUESTED A DECISION AS TO WHETHER AN ALLEGED MISTAKE MAY BE CORRECTED AFTER CONTRACT AWARD. THE MATTER WAS SUBMITTED HERE PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1 2.406-4(J) (1963 ED.), WHICH PROVIDES FOR THE SUBMISSION TO THIS OFFICE OF DOUBTFUL CASES INVOLVING POSSIBLE CORRECTION OF MISTAKE IN BID PRICE.

CONTRACT NO. V618-C-694 WAS AWARDED TO THE SWEITZER CONSTRUCTION COMPANY FOR THE CONSTRUCTION OF AN EDUCATION BUILDING AND CONNECTING CORRIDOR AT THE VETERANS ADMINISTRATION HOSPITAL IN MINNEAPOLIS, MINNESOTA. THE CONTRACT WAS AWARDED PURSUANT TO TWO-STEP FORMAL ADVERTISING PROCEDURES.

APPARENTLY, SWEITZER'S SECOND TIER SUBCONTRACTOR FOR THE ELECTRICAL WORK SUBMITTED ITS QUOTATION AND PROPOSAL ON THE BASIS OF A COPY OF THE GOVERNMENT'S SPECIFICATION WHICH CONTAINED A BLANK PAGE 32. AFTER THE CONTRACT WAS AWARDED TO SWEITZER, THE ELECTRICAL SUBCONTRACTOR RECEIVED ADDITIONAL COPIES OF THE SPECIFICATION. IN COMPARING THESE SUBSEQUENT COPIES WITH THE ORIGINAL WORK COPY OF THE SPECIFICATION THE SUBCONTRACTOR DISCOVERED THAT SPECIFICATIONS WERE INCLUDED ON PAGE 32 OF THE FORMER COPIES. PAGE 32 GENERALLY REQUIRED CONDUITS FOR TELEPHONE SYSTEMS, CONDUITS FOR A CLOSED CIRCUIT TELEVISION SYSTEM AND A LIGHTNING PROTECTION SYSTEM. SUBSEQUENTLY, THE VETERANS ADMINISTRATION DECIDED THAT THE BUILDING SHOULD NOT BE EQUIPPED WITH A LIGHTNING PROTECTION SYSTEM. HOWEVER, SWEITZER HAS REQUESTED AN ADDITIONAL $5,898 TO FURNISH BOTH CONDUIT SYSTEMS.

THE SOLICITATION REQUIRED OFFERORS TO SUBMIT DURING THE FIRST STEP OF THIS PROCUREMENT A TECHNICAL PROPOSAL TO ENABLE THE GOVERNMENT TO DETERMINE THE ACCEPTABILITY OF THE WORK OFFERED. SPECIFICALLY, OFFERORS WERE REQUIRED, IN PART, TO SUBMIT DESCRIPTIVE MATERIAL OF THE ELECTRICAL SYSTEMS TOGETHER WITH ATTENDANT FIXTURES AND ACCESSORIES. THE ELECTRICAL DRAWING SUBMITTED WITH SWEITZER'S FIRST STEP PROPOSAL WAS PREPARED BY THE SECOND TIER ELECTRICAL SUBCONTRACTOR. NONE OF THE WORK REQUIRED ON PAGE 32 OF THE SPECIFICATION IS SHOWN ON THE ELECTRICAL DRAWING EXCEPT THAT TELEPHONE OUTLETS ONLY ARE SHOWN IN EACH ROOM. RELATED TELEPHONE CONDUIT RUNS AND MAIN PHONE PANEL, ALTHOUGH LISTED AMONG THE REQUIREMENTS ON PAGE 32 OF THE SPECIFICATION, ARE NOT SHOWN ON THE ELECTRICAL DRAWING. AS TO THE TELEPHONE OUTLETS, THE SUBCONTRACTOR HAS ADVISED THAT THEIR INCLUSION IN THE DRAWINGS REPRESENTS THE CUSTOM AND USAGE OF THE TRADE IN THAT GEOGRAPHICAL AREA.

THE AGENCY STATES THAT IT IS NOT IN A GOOD POSITION TO DISPUTE SWEITZER'S CONTENTION THAT THE SPECIFICATION UPON WHICH IT BASED ITS PROPOSAL DID NOT INCLUDE REQUIREMENTS ON PAGE 32. NOR HAS THE AGENCY SO ARGUED. IN THIS CONNECTION, PAGE 32 IS ALSO BLANK ON THE AGENCY'S LEGAL FILE COPY OF THE SPECIFICATION. IN ADDITION, PAGES 34, 36, 42, 58, 96, 102 AND 116 ARE ALSO BLANK BUT EXAMINATION OF THE SPECIFICATION CLEARLY SHOWS THAT THESE OTHER BLANK PAGES WERE INTENDED TO BE BLANK PAGES. WITH REGARD TO PAGE 32, THE PROJECT DIRECTOR STATES THAT IN HIS OPINION A CONTRACTOR SHOULD HAVE BEEN ON NOTICE BY READING THE SPECIFICATION THAT PAGE 32 CONTAINED SPECIFICATION REQUIREMENTS AND THE CONTRACTOR SHOULD HAVE INQUIRED ABOUT THE BLANK PAGE PRIOR TO BIDDING. ON THE OTHER HAND THE AGENCY'S SUPPLY SERVICE DIRECTOR POINTS OUT THAT THE WORDING AT THE TOP OF PAGE 33 "IS NOT INCONSISTENT" WITH THE "GENERAL SENSE OF" THE PROVISIONS AT THE BOTTOM OF PAGE 31. MOREOVER, IN TWO-STEP FORMAL ADVERTISING IT IS INCUMBENT UPON THE GOVERNMENT TO DETERMINE THE ACCEPTABILITY OF THE FIRST STEP PROPOSALS. SEE FPR SEC. 1-2.503-1(B) (1963 ED.). THE GOVERNMENT IN THIS CASE ACCEPTED THE ELECTRICAL DRAWING WHICH OBVIOUSLY DID NOT PROPOSE TO MEET THE SPECIFICATION REQUIREMENTS OF PAGE 32.

WE FIND NO INDICATION OF A MISTAKE IN BID. RATHER THE ISSUE RELATES TO WHAT THE CONTRACT REQUIRED. ACCORDINGLY, THIS MATTER IS NOT FOR CONSIDERATION UNDER THE PRINCIPLES APPLICABLE TO CORRECTION OF MISTAKES IN BID.