B-136602, JUL. 11, 1958

B-136602, JUL. 11, 1958

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED JULY 1, 1958, FROM YOUR ASSISTANT GENERAL COUNSEL, FURNISHING A REPORT RELATIVE IN THE PROTEST OF THE SOUTHERN CONSTRUCTION COMPANY, LAKE CHARLES, LOUISIANA, IN CONNECTION WITH THE BID OF G. L. CHRISTIAN AND ASSOCIATES SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 16-605-58-63 ISSUED BY THE CONTRACTING OFFICER, LAKE CHARLES AIR FORCE BASE, LOUISIANA.

THE INVITATION REQUESTED BIDS FOR THE CONSTRUCTION OF A 300 UNIT TITLE VIII, ARMED SERVICES FAMILY HOUSING PROJECT AT THE LAKE CHARLES AIR FORCE BASE, LOUISIANA. THE INVITATION REQUESTED BIDDERS TO SUBMIT A "BASIC BID" WHICH WAS TO CONSIST OF A LUMP-SUM PRICE FOR THE CONSTRUCTION OF THE PROJECT ITSELF. IN ADDITION TO THE "BASIC BID" THE INVITATION REQUESTED QUOTATIONS ON 11 ,ADDITIVE ALTERNATES.' THESE "ADDITIVE ALTERNATES" CONSISTED OF CERTAIN EXTRA FEATURES SUCH AS AIR CONDITIONING SYSTEMS, GARBAGE DISPOSAL UNITS, CLOTHES WASHERS AND DRYERS, AND DISHWASHERS TO BE INCLUDED IN THE PROJECT AT THE OPTION OF THE GOVERNMENT.

THE FOUR BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE PUBLICLY OPENED ON JUNE 24, 1958, AS SCHEDULED. THE BID SUBMITTED BY G. L. CHRISTIAN AND ASSOCIATES WAS THE LAST TO BE OPENED. AS ADDITIVE ALTERNATE NO. 1 WAS BEING READ THE CONTRACTING OFFICER STATED "IT LOOKS LIKE $25,000.00 HERE, BUT I-M SURE IT IS $250,000.00; IT IS CLEARLY A TYPOGRAPHICAL ERROR.' THE FOUR BASIC BIDS AND THE QUOTATIONS ON ADDITIVE ALTERNATE NO. 1, COVERING AIR CONDITIONING SYSTEMS, WERE AS FOLLOWS:

TABLE

BIDDER BASIC BID ADDITIVE ALTERNATE NO. 1

SOUTHERN CONST. CO. $ 4,647,500 $ 298,990

T. C. BATESON CONST. CO. 4,926,800 320,000

FLORIDA BUILDERS, INC. 4,989,000 234,000

G. L. CHRISTIAN AND ASSOC. "4,425,262.00" "250,00.00"

THE FHA ESTIMATE FOR ADDITIVE ALTERNATE NO. 1 WAS $360.249.

IT IS REPORTED THAT AS SOON AS THE CONTRACTING OFFICER READ ALOUD THE FIRST ADDITIVE ALTERNATE QUOTATION AND STATED THAT IT WAS PROBABLY A TYPOGRAPHICAL ERROR, MR. G. L. CHRISTIAN, A PARTNER IN THE FIRM BEARING HIS NAME, AROSE AND STATED THAT THE BID ON ALTERNATE NO. 1 SHOULD READ $250,000.

IN SUPPORT OF THE ALLEGATION THAT THE PRICE FOR ALTERNATE NO. 1 WAS INTENDED AS $250,000, G. L. CHRISTIAN AND ASSOCIATES SUBMITTED AN AFFIDAVIT BY THE MEMBER OF THE PARTNERSHIP WHO IS STATED TO HAVE PREPARED THE BID AND AN AFFIDAVIT BY THE PERSON STATED TO HAVE TYPED THE BID. THESE AFFIDAVITS IT IS AVERRED THAT THE BID WAS PREPARED IN WORKSHEET FORM, A VERI-FAX COPY OF WHICH WAS ATTACHED AND CERTIFIED TO BE THE ORIGINAL AND NOT TO HAVE BEEN ALTERED OR CHANGED IN ANY RESPECT OR PARTICULAR; THAT THE ENTRY FOR ALTERNATE NO. 1 WAS $250,000 AND THAT ON JUNE 23, 1958, HE EMPLOYED A TYPIST TO COPY THE FIGURES AND INFORMATION SHOWN ON THE WORKSHEET FORM ON TO THE BID FORM WHICH WAS TO BE SUBMITTED. THE TYPIST AVERS THAT SHE WAS EMPLOYED ON THE EVENING OF JUNE 23, 1958, BY G. L. CHRISTIAN AND ASSOCIATES TO TYPE THE BID AND THAT IN THE TYPING OF SUCH BID IN THE ENTRY ON ALTERNATE NO. 1, SHE TYPED THE FIGURES--- $250,00.00; " THAT THE ENTRY ON THE WORKSHEET BID FORM FROM WHICH SHE WAS TYPING SHOWED THE ENTRY AS $250,000; THAT THE OMISSION OF THE ZERO BETWEEN THE COMMA AND THE DECIMAL POINT WAS SOLELY AN ERROR IN TYPING ON HER PART AND THAT THE ATTACHED VERI-FAX COPY OF THE "WORKSHEET" BID FORM IS AN EXACT COPY OF THE FORM FROM WHICH SHE TYPED.

A LETTER DATED JUNE 24, 1958, FROM THE SOUTHERN CONSTRUCTION CORPORATION TO THE CONTRACTING OFFICER IS AS FOLLOWS:

"WE, THE SOUTHERN CONSTRUCTION CORPORATION, LAKE CHARLES, LA., HEREBY REGISTER PROTEST TO YOUR ACCEPTING BID FROM G. L. CHRISTIANSON AND ASSOCIATES OF BEAUMONT, TEXAS. THIS PROTEST IS BASED ON BID ACCEPTANCE OF ALTERNATE NO. 1, IN THAT DURING READING OF THE BIDS, YOU DID READ BID QUOTE ON ALTERNATE NO. 1 AS TWENTY-FIVE THOUSAND DOLLARS ($25,000), SUBMITTED BY S. L. CHRISTIANSON AND ASSOCIATES OF BEAUMONT, TEXAS. FURTHER, YOU STATED THAT THIS WAS PROBABLY A TYPOGRAPHICAL ERROR AND, AT THAT TIME, AN INDIVIDUAL ATTENDING THE BID OPENING DID VERBALLY STATE THE BID QUOTE ON ALTERNATE NO. 1 SHOULD READ,"TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000).' THIS PROCEDURE IS ENTIRELY IRREGULARIN THAT CORRECTIONS WERE MADE AFTER BID OPENING.

"THEREFORE, BID FROM G. L. CHRISTIANSON AND ASSOCIATES, TO INCLUDE ALTERNATE NO. 1 AS BEING TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000), SHOULD BE REJECTED AND BID ON ALTERNATE NO. 1 SHOULD BE ACCEPTED AT TWENTY -FIVE THOUSAND DOLLARS ($25,000), WHICH APPARENTLY WAS THE FIGURE SHOWN ON THE BID.'

IT IS TO BE NOTED THAT THE FIGURE SHOWN IN THE CHRISTIAN BID FOR ALTERNATE NO. 1 IS NOT ,$25,000 BUT IS "$250,00.00," A FIGURE WHOLLY WITHOUT MEANING. THE AMOUNTS OF THE OTHER BIDS AND THE GOVERNMENT'SESTIMATE FOR THE ITEM WOULD APPEAR TO SUBSTANTIATE BEYOND QUESTION THAT THE ,$250,00.00" FIGURE WAS INTENDED TO BE $250,000. THE AMOUNT SHOWN ON THE WORKSHEET IS $250,000 AS ALLEGED. THE MISTAKE CLEARLY IS ONE OF A CLERICAL NATURE AND BOTH THE ERROR AND THE INTENDED PRICE ARE OBVIOUS ON THE FACE OF THE BID ITSELF CONSIDERING THE SURROUNDING CIRCUMSTANCES.

IN CONNECTION WITH THE STATEMENT BY THE PROTESTANT THAT THE PROPOSED CORRECTION OF THE CHRISTIAN BID "IS ENTIRELY IRREGULAR IN THAT CORRECTIONS WERE MADE AFTER BID OPENING," IT WAS STATED IN OUR DECISION OF NOVEMBER 26, 1956, 36 COMP. GEN. 431---

"AS A GENERAL RULE, BIDDERS ON PROPOSED GOVERNMENT CONTRACTS ARE NOT PERMITTED TO CHANGE THEIR BIDS AFTER OPENING. HOWEVER, THIS DOES NOT MEAN THAT A BIDDER SHOULD NOT BE AFFORDED AN OPPORTUNITY TO CLARIFY ANY APPARENT MISTAKE IN BID OR THAT IT IS UNFAIR TO THE OTHER BIDDERS TO PERMIT ANY SUCH ERROR TO BE CORRECTED UPON INDISPUTABLE PROOF OF WHAT WAS ACTUALLY INTENDED BY THE BIDDER. * * *"

IN THE INSTANT CASE THE CHRISTIAN BID WAS LOW ON EITHER BASIS AND, THEREFORE, THERE IS NO QUESTION WHATSOEVER AS TO ANY ADVANTAGE TO G. L. CHRISTIAN OR PREJUDICE TO OTHER BIDDERS. IN THE CIRCUMSTANCES INVOLVED, IT IS NOT BELIEVED THAT THE GOVERNMENT'S ACCEPTANCE OF THE CHRISTIAN BID ON ALTERNATE NO. 1 AS $25,000 WOULD HAVE RESULTED IN A VALID AND BINDING CONTRACT. SEE MOFFETT V. ROCHESTER, 178 U.S. 373; KEMP V. UNITED STATES, 38 F.SUPP. 568; AND SALIGMAN V. UNITED STATES, 56 F.SUPP. 505.

ACCORDINGLY, YOU ARE ADVISED THAT THE PROTEST OF SOUTHERN CONSTRUCTION CORPORATION MUST BE DENIED AND THAT THE CORRECTION OF THE BID OF G. L. CHRISTIAN AND ASSOCIATES ON ALTERNATE NO. 1 TO ..END :