B-125799, JAN. 25, 1956

B-125799, JAN. 25, 1956

TO HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 13, 1956, WITH ENCLOSURES, FROM THE EXECUTIVE ASSISTANT, CONSTRUCTION AND REAL ESTATE, FURNISHING THE REPORT REQUESTED IN OUR LETTER OF OCTOBER 25, 1955, RELATIVE TO AN ALLEGED ERROR IN A BID DATED AUGUST 16, 1955, SUBMITTED BY EDWARD J. ORR, ON WHICH CONTRACT NO. NOY-89894 FOR EXTERIOR PAINTING AT THE NAVAL RESERVE TRAINING CENTER, SCRANTON, PENNSYLVANIA, WAS BASED.

THE RECORD SHOWS THAT THE CONTRACTING OFFICER PROPERLY TOOK NOTICE OF THE PROBABILITY THAT MR. ORR'S BID OF $1,985 WAS ERRONEOUS SINCE THE ABSTRACT OF BIDS SHOWS THAT THE BID WAS OUT OF LINE WITH THE THREE OTHER BIDS OF $3,125, $3,850 AND $4,265. IT IS REPORTED THAT THE OFFICER IN CHARGE OF CONSTRUCTION, FOURTH NAVAL DISTRICT, VERBALLY REQUESTED THE CONTRACTOR TO VERIFY HIS BID AND THAT CONFIRMATION OF THE BID PRICE WAS RECEIVED BY TELEPHONE ON AUGUST 22, 1955.

WHEN THE NOTICE OF AWARD DATED AUGUST 22, 1955, WAS RECEIVED, IT WAS RETURNED BY MR. ORR UNSIGNED AND MARKED "CANCELLED.' BY LETTER OF AUGUST 26, 1955, HE ADVISED THAT HE DISCOVERED THAT AN ERROR OF $1,635 WAS MADE IN COMPUTING HIS BID PRICE FOR THE JOB, THAT HIS BID SHOULD HAVE BEEN $3,620 INSTEAD OF $1,985. HIS ORIGINAL WORKSHEET WAS FURNISHED WHICH ESTABLISHES THAT, AS ALLEGED, HIS BID PRICE WAS COMPUTED ON THE BASIS OF PAINTING THE EXTERIOR SURFACE OF ONLY ONE QUONSET-TYPE HUT, INSTEAD OF THREE HUTS AS REQUIRED BY THE INVITATION. SINCE THE WORKSHEET SHOWS THE EXTERIOR AREA OF ONE HUT WAS 8,177 SQUARE FEET, IT APPEARS THAT 16,354 SQUARE FEET OF EXTERIOR SURFACE REQUIRED TO BE PAINTED WAS OMITTED IN PREPARING THE BID AS HE CONTENDS.

GENERALLY, WHEN A BIDDER IS REQUESTED TO AND DOES VERIFY HIS BID, THE SUBSEQUENT ACCEPTANCE THEREOF CONSUMMATES A VALID AND BINDING CONTRACT. SEE 18 COMP. GEN. 942, 947. HOWEVER, SINCE IN THE PRESENT CASE NEITHER THE ALLEGED BID CONFIRMATION NOR THE REQUEST THEREFOR WAS IN WRITING, LESS WEIGHT SHOULD ATTACH THERETO THAN IF THE VERIFICATION WERE REQUESTED AND RECEIVED IN THE CUSTOMARY FORMAL MANNER. MOREOVER, SINCE MR. ORR'S BID PRICE WAS ABOUT HALF OF THE AVERAGE PRICE QUOTED BY THE OTHER BIDDERS, THE CONTRACTING OFFICER--- NOTWITHSTANDING THE BID CONFIRMATION--- STILL SHOULD HAVE SUSPECTED THAT THE BID OF $1,985 WAS ERRONEOUS. UNDER THE CIRCUMSTANCES, AND SINCE THE ERROR WAS ALLEGED AND ESTABLISHED PROMPTLY AFTER RECEIPT OF THE NOTICE OF AWARD, MR. ORR SHOULD NOT BE REQUIRED TO PERFORM THE PROJECT PAINT JOB AT THE PRICE QUOTED IN HIS BID.

ACCORDINGLY, IF NO WORK HAS BEEN DONE UNDER THE CONTRACT, AS THE RECORD INDICATES, THE AWARD SHOULD BE CANCELED. HOWEVER, IF THE CONTRACT WORK HAS BEEN PERFORMED, OR IS NOW BEING PERFORMED, PAYMENT IS AUTHORIZED TO BE MADE TO EDWARD J. ORR FOR THE FURNISHING OF THE MATERIALS AND SERVICES CALLED FOR UNDER THE CONTRACT AT A PRICE OF $3,125, THE AMOUNT OF THE NEXT LOWEST BID.