B-141798, FEB. 29, 1960

B-141798, FEB. 29, 1960

TO HONORABLE FRANKLIN FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

IN LETTER OF JANUARY 22, 1960, YOU REQUESTED A DECISION WHETHER LEASE NO. GS-04B-4955, DATED MAY 21, 1959, MAY BE AMENDED TO COMPENSATE THE LESSOR, THE AUCHTER COMPANY, JACKSONVILLE, FLORIDA, FOR ADDITIONAL EXPENSES ALLEGEDLY INCURRED IN MEETING THE REQUIREMENTS OF THE FLORIDA STATE BOARD OF HEALTH IN THE CONSTRUCTION OF A SEWERAGE DISPOSAL FACILITY INCLUDED IN THE PROPERTY LEASED TO THE GOVERNMENT.

YOU STATE THAT THERE WOULD APPEAR TO BE A CONFLICT BETWEEN PARAGRAPH 23 OF THE GENERAL PROVISIONS WHICH SPECIFIES:

"SEWERAGE DISPOSAL PLANT: THE SUCCESSFUL BIDDER WILL ALSO BE RESPONSIBLE FOR PROVIDING ADEQUATE SEWERAGE DISPOSAL FACILITIES THROUGH THE CONSTRUCTION, OPERATION AND MAINTENANCE OF THE NECESSARY SEWAGE DISPOSAL SYSTEM. THE SYSTEM SHALL BE DESIGNED FOR AN AVERAGE FLOW OF 40,000 GALLONS PER DAY AND A TOTAL AIR ADDITION OF 190 CFM. THE INTEGRATED DIGESTION PLANT SHALL BE CONSTRUCTED IN ACCORDANCE WITH APPLICABLE DRAWINGS AND SPECIFICATIONS AND SHALL COMPLY WITH STATE HEALTH AND LOCAL AUTHORITIES. IF ALTERNATE TYPES OF DISPOSAL PLANTS ARE PROPOSED THE BIDDER WILL SUBMIT DETAILED PLANS AND SPECIFICATIONS FOR APPROVAL BY THE CONTRACTING OFFICER. ANY SEWAGE DISPOSAL SYSTEM MUST BE CONSTRUCTED, OPERATED AND MAINTAINED IN ACCORDANCE WITH APPLICABLE ORDINANCES AND REGULATIONS OF STATE AND LOCAL AUTHORITIES.'

AND THE SPECIFICATIONS FOR THE SEWERAGE TREATMENT PLANT WHICH START OUT BY PROVIDING:

"SCOPE THE WORK COVERED BY THIS SECTION CONSISTS OF FURNISHING ALL PLANT, LABOR, EQUIPMENT AND MATERIALS, AND PERFORMING ALL OPERATIONS IN CONNECTION WITH INSTALLATION OF A SEWERAGE DISPOSAL PLANT IN STRICT ACCORDANCE WITH THIS SECTION OF THE SPECIFICATIONS AND THE APPLICABLE DRAWINGS.'

WE DO NOT AGREE THAT SUCH AN INCONSISTENCY EXISTS. THE EFFECT OF THE LANGUAGE IN PARAGRAPH 23 THAT THE SEWERAGE PLANT "SHALL BE CONSTRUCTED IN ACCORDANCE WITH APPLICABLE DRAWINGS AND SPECIFICATIONS" OBVIOUSLY IS TO INCORPORATE THE SPECIFICATIONS FOR THE SEWERAGE TREATMENT PLANT SO THAT, IN EFFECT, PARAGRAPH 23 PROVIDES THAT THE SEWERAGE PLANT SHALL BE CONSTRUCTED IN ACCORDANCE WITH APPLICABLE DRAWINGS AND IN "STRICT ACCORDANCE" WITH THE PARTICULAR SPECIFICATIONS, LIMITED TO THE EXTENT THAT THEY COMPLY WITH STATE AND LOCAL HEALTH AUTHORITIES. PARAGRAPH 23, THEREFORE, IMPOSES UPON THE BIDDER THE RESPONSIBILITY OF DETERMINING BEFORE BIDDING WHETHER THE SPECIFICATIONS COMPLY WITH LOCAL AND STATE STANDARDS. THE GOVERNMENT MADE NO WARRANTY THAT THEY DID SO COMPLY, BUT RATHER ADMONISHED BIDDERS FURTHER THAT THE SEWERAGE SYSTEM "MUST BE CONSTRUCTED * * * IN ACCORDANCE WITH APPLICABLE ORDINANCES AND REGULATIONS OF STATE AND LOCAL AUTHORITIES.' NOR CAN THE STATEMENT (IN THE MIDST OF THE TWO WARNINGS THAT THE CONSTRUCTION IS TO BE IN COMPLIANCE WITH LOCAL AND STATE REQUIREMENTS) THAT "IF ALTERNATE TYPES OF DISPOSAL PLANTS ARE PROPOSED THE BIDDER WILL SUBMIT DETAILED PLANS AND SPECIFICATIONS FOR APPROVAL BY THE CONTRACTING OFFICER," BE OVERLOOKED. CLEARLY, ALTHOUGH THE GOVERNMENT PROVIDED PARTICULAR SPECIFICATIONS IN THE INVITATION, IT MANIFESTED AN INTENTION THAT BIDDERS ASCERTAIN FOR THEMSELVES BEFORE BIDDING WHETHER THE SPECIFICATIONS MET THE LOCAL AND STATE STANDARDS, AND IN THE EVENT THAT THEY DID NOT, LEFT ROOM FOR THE BIDDERS TO SUBMIT ALTERNATE SPECIFICATIONS (WHICH DID COMPLY) FOR THE APPROVAL OF THE CONTRACTING OFFICER.

FAILURE TO TAKE ANY EXCEPTION TO THE SEWERAGE SYSTEM SPECIFICATIONS PRIOR TO SUBMITTING A BID INDICATES EITHER THAT THE BIDDER HAD DETERMINED THAT THE SPECIFICATIONS MET LOCAL AND STATE REQUIREMENTS OR THAT IT WAS PREPARED TO ASSUME THAT RISK, AND IS THEREFORE TANTAMOUNT TO A GUARANTEE OF THE PROPRIETY OF THESE SPECIFICATIONS, AND IN THE EVENT THEY ARE SUBSEQUENTLY DETERMINED TO BE INSUFFICIENT BY THE LOCAL OR STATE APPROVING AUTHORITY, THE CONTRACTOR WOULD BE REQUIRED TO OTHERWISE INSURE COMPLIANCE.

IF THE BIDDER HAD ANY DOUBT ABOUT THE REQUIREMENTS OF THE INVITATION, IT SHOULD HAVE REQUESTED CLARIFICATION PRIOR TO SUBMITTING ITS BID, AS PROVIDED BY PARAGRAPH 2 OF THE INSTRUCTIONS TO BIDDERS:

"EXPLANATION TO BIDDERS: ANY EXPLANATION DESIRED BY BIDDERS REGARDING THE MEANING OR INTERPRETATION OF THE CONDITIONS AND SPECIFICATIONS OF THE INVITATION MUST BE REQUESTED FROM THE ISSUING OFFICE IN WRITING AND WITH SUFFICIENT TIME ALLOWED FOR A REPLY TO REACH THEM BEFORE THE SUBMISSION OF THEIR BIDS.'

IN THIS CONNECTION, IT IS NOTED THAT, WHILE THE INVITATION WAS ISSUED ON AUGUST 18, 1958, THE BIDDER DID NOT SUBMIT A BID UNTIL OCTOBER 24, 1958, SO THAT THERE APPEARS TO HAVE BEEN AMPLE TIME TO SEEK ANY CLARIFICATION.

ON THE PRESENT RECORD, IT APPEARS THAT THE LESSOR WAS REQUIRED TO ASCERTAIN BEFORE SUBMITTING A BID WHETHER THE GOVERNMENT'S SPECIFICATIONS AND PLANS FOR THE SEWERAGE SYSTEM MET THE STANDARDS OF THE REQUIRED AUTHORITIES. HAVING FAILED TO MAKE A TIMELY INQUIRY AND HAVING DELAYED UNTIL AFTER THE AWARD OF THE LEASE, IT ASSUMED THE RESPONSIBILITY FOR ANY CHANGES REQUIRED BY THE FLORIDA STATE BOARD OF HEALTH. ACCORDINGLY, WE SEE NO LEGAL BASIS FOR AMENDING THE SUBJECT LEASE.

THE ENCLOSURES ACCOMPANYING YOUR LETTER OF JANUARY 22, 1960, ARE RETURNED HEREWITH.