B-127149, MAR. 9, 1956

B-127149, MAR. 9, 1956

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 28, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR J. H. WISE AND SON, INC., ALLEGES IT MADE IN ITS BID OPENED ON JANUARY 24, 1956.

THE DISTRICT ENGINEER, WALLA WALLA DISTRICT, BY INVITATION NO. NEG 45-164 -56-21, AS AMENDED, REQUESTED BIDS FOR FURNISHING LABOR AND MATERIALS AND PERFORMING ALL WORK REQUIRED IN CONNECTION WITH THE CONSTRUCTION OF FOUR SQUADRON OPERATIONS BUILDINGS, ONE FIRE STATION, ROADWAYS AND UTILITIES AT MOUNTAIN HOME AIR FORCE BASE, ELMORE COUNTY, IDAHO, IN ACCORDANCE WITH CERTAIN SPECIFICATIONS AND DRAWINGS. BIDDERS WERE REQUIRED TO SUBMIT BIDS ON SCHEDULE A COVERING THE ENTIRE PROJECT; ON SCHEDULE B COVERING THE ENTIRE PROJECT LESS THE FIRE STATION AND RELATED TEMS; AND ON SCHEDULE C COVERING THE FIRE STATION AND THE WORK TO BE PERFORMED UNDER EACH SCHEDULE WAS BROKEN DOWN INTO VARIOUS ITEMS OF WORK AND ON EACH ITEM OF WORK BIDDERS WERE REQUIRED TO QUOTE UNIT OR JOB PRICES. PROSPECTIVE BIDDERS WERE ADVISED THAT, NOTWITHSTANDING OTHER PROVISIONS OF THE INVITATION TO BID CONCERNING THE METHOD OF AWARD, AWARD WOULD BE MADE AS A WHOLE TO ONE BIDDER UNDER SCHEDULE A, OR SEPARATELY BY BUILDINGS SITES AS LISTED UNDER SCHEDULES B AND C, WHICHEVER SHOULD BE IN THE BEST INTEREST OF THE GOVERNMENT.

IN RESPONSE TO THE INVITATION, J. H. WISE AND SON, INC., SUBMITTED A BID DATED JANUARY 24, 1956, OFFERING TO PERFORM THE WORK COVERED BY SCHEDULE A (BASIC BID) FOR THE AGGREGATE TOTAL PRICE OF $554,523.30; TO PERFORM THE WORK COVERED BY SCHEDULE B FOR THE AGGREGATE TOTAL PRICE OF $468,900.30 (NOT $468,681.90 AS SHOWN ON THE CORPORATION'S BID OR $467,900.30 AS SHOWN ON THE ABSTRACT OF BIDS); AND TO PERFORM THE WORK COVERED BY SCHEDULE C FOR THE AGGREGATE TOTAL PRICE OF $90,129. IN A REPORT DATED JANUARY 31, 1956, FROM THE CONTRACTING OFFICER, IT IS STATED THAT, AFTER THE BIDS WERE OPENED AND THE ABSTRACT OF BIDS PUBLISHED, THE PRESIDENT OF J. H. WISE AND SON, INC., TELEPHONED ALLEGING THAT AN ERROR HAD BEEN MADE IN THE CORPORATION'S BID ON SCHEDULE C. IN A CONFIRMING LETTER DATED JANUARY 27, 1956, THE CORPORATION STATED THAT IN COMPUTING ITS BID ON SCHEDULE C IT FAILED TO INCLUDE THE AMOUNT OF $6,327 TO COVER THE ITEMS OF JOB SUPERVISION AND ENGINEERING. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED THE ESTIMATE SHEETS USED IN COMPUTING ITS BID AND REQUESTED THAT ITS BID PRICE FOR ITEM 1 OF SCHEDULE C BE INCREASED FROM $74,741 TO $81,068, OR IN THE ALTERNATIVE, THAT IT BE PERMITTED TO WITHDRAW ITS BID ON THAT SCHEDULE. IN CONNECTION WITH THE CORPORATION'S ESTIMATE SHEETS, THE CONTRACTING OFFICER STATES IN HIS REPORT AS FOLLOWS:

"8. THE ATTACHED STATEMENT AND SUPPORTING DATA CONTAINS ON EXHIBIT 4 THE BIDDER'S ESTIMATE OF AN AMOUNT OF $6,327. FOR JOB SUPERVISION AND ENGINEERING. THIS WAS PREDICATED ON THE REQUIREMENT UNDER SC-1 FOR COMPLETE CONSTRUCTION OF THE ENTIRE WORK IN APPROXIMATELY 250 DAYS. THE COMPUTATION INCLUDED A SUPERINTENDENT'S SALARY FOR NINE MONTHS AND ENGINEERING EXPENSE FOR ONLY ONE MONTH.

"9. IN PREPARING THE BID FOR THE ENTIRE WORK UNDER SCHEDULE A THE BIDDER PRORATED THESE EXPENSES, PLACING 36.5 PERCENT INTO ITS COMPUTATION ON BID ITEM NO. 4 AND THE REMAINDER INTO BID ITEM NO. 3. THESE HANDWRITTEN COMPUTATIONS ARE SHOWN ON THE BIDDER'S EXHIBITS 2 AND 1.

"10. IN PREPARING THE ALTERNATE BID UNDER SCHEDULES B AND C. THE IDENTICAL PRICE FOR BID ITEMS 3 AND 4 WERE USED UNDER SCHEDULE B. THESE ITEMS THEN INCLUDED THE SAME PRORATED ALLOCATION OF SUPERVISION AND ENGINEERING COSTS.

"11. IN PREPARING THE SEPARATE BID UNDER SCHEDULE C THE UNIT PRICE USED UNDER SCHEDULE A WAS INCREASED BY AN AMOUNT OF $3141, SUMMARIZED ON BIDDER'S EXHIBIT 5. THERE IS NO EXPLANATION IN THE BIDDER'S DATA NOR HAS SUCH BEEN FURNISHED TO THIS OFFICE IN EXPLANATION OF THE NECESSITY FOR THE ADDED COSTS UNDER THIS SEPARATE SCHEDULE.

"12.I FIND NO EVIDENCE THAT THE BIDDER EVER INTENDED TO INCLUDE IN SCHEDULE C A SEPARATE ALLOWANCE FOR SUPERVISION AND ENGINEERING. MR. PAUL W. WISE STATED THAT HE DELIBERATELY ALLOCATED IT TO THE SQUADRON OPERATIONS BUILDINGS. HE FURTHER STATED THAT HE THOUGHT AN AWARD WOULD BE MADE FOR THE ENTIRE WORK UNDER SCHEDULE A OR POSSIBLY UNDER SCHEDULE B ALONE. HOWEVER, I AM UNABLE TO RECONCILE THIS STATEMENT WITH THE FACT THAT THE BIDDER INCREASED ITS BID UNDER ITEM NO. 1 IN THE COMPUTATION FOR SCHEDULE C.'

THE BID PRICE OF $90,129 QUOTED BY J. H. WISE AND SON, INC., FOR SCHEDULE C, WHEN COMPARED WITH THE PRICES SPECIFIED BY THE OTHER BIDDERS ON THAT SCHEDULE, IS NOT SO UNREASONABLY LOW AS TO SUGGEST ERROR IN ITS BID.

IT IS A WELL-ESTABLISHED RULE THAT, IN ORDER TO AUTHORIZE THE DISREGARDING, WITHDRAWAL, OR CORRECTION OF A BID ON THE BASIS OF MISTAKE ALLEGED AFTER OPENING, THE EVIDENCE OF THE MISTAKE MUST BE SUCH AS TO SHOW CONCLUSIVELY THAT A BONA FIDE MISTAKE WAS MADE AND MUST LEAVE NO ROOM FOR DOUBT THAT THE CLAIM OF ERROR WAS FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR AVOIDING THE CONSEQUENCES OF AN ILL-ADVISED BID. SUCH PROOF HAS NOT BEEN PRESENTED HERE.

ACCORDINGLY, ON THE BASIS OF THE FACTS OF RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR AUTHORIZING J. H. WISE AND SON, INC., TO WITHDRAW OR INCREASE ITS BID ON SCHEDULE C. SEE 9 COMP. GEN. 339; 14 ID. 78; AND 16 ID. 565.

A DUPLICATE SET OF THE PAPERS IN THE CASE IS BEING RETAINED. THE OTHER PAPERS ARE RETURNED.