B-141092, NOV. 10, 1959

B-141092, NOV. 10, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 26, 1959, WRITTEN ON BEHALF OF THE ASSISTANT SECRETARY (LOGISTICS) AND FORWARDING A FILE RELATIVE TO A BID SUBMITTED BY THE HENRY C. BECK COMPANY UNDER IFB NO. ENS-08-123-60-12 REQUESTING OUR ADVICE AS TO WHETHER AN ERROR ALLEGEDLY MADE IN SUCH BID MAY BE CORRECTED.

STATED BRIEFLY, THE RECORD BEFORE US INDICATES THAT THE INVITATION REQUESTED BIDS, TO BE OPENED ON OCTOBER 15, 1959, ON CERTAIN CONSTRUCTION WORK TO BE ACCOMPLISHED AT PATRICK AIR FORCE BASE. UNDER PARAGRAPH SC-1 OF THE SPECIAL CONDITIONS ATTACHED TO THE INVITATION, VARIOUS STAGES OF THE WORK WERE REQUIRED TO BE COMPLETED BY CERTAIN DATES, AND ALL WORK UNDER THE CONTRACT WAS REQUIRED TO BE COMPLETED BY AUGUST 1, 1960. THE COMPLETION PROVISION ON PAGE 2 OF STANDARD FORM 21, BID FORM (CONSTRUCTION CONTRACT), ACCOMPANYING THE INVITATION WAS THEREFORE AMENDED TO READ AS FOLLOWS:

"THE UNDERSIGNED AGREES THAT IF AWARDED THE CONTRACT, HE WILL COMMENCE THE WORK WITHIN 5 CALENDAR DAYS AFTER THE DATE RECEIPT OF NOTICE TO PROCEED, AND THAT HE WILL COMPLETE THE WORK AS SPECIFIED IN PARAGRAPH SC-1 OF THE SPECIFICATIONS.'

THE LOW BID WAS SUBMITTED BY THE HENRY C. BECK COMPANY, HOWEVER, THE BIDDER HAD INSERTED THE FIGURE "315" IN THE SPACE BETWEEN THE WORDS "WITHIN" AND "CALENDAR" IN THE ABOVE-QUOTED PORTION OF THE BID FORM. THE CONTRACTING OFFICER INTERPRETED SUCH INSERTION AS A QUALIFICATION BY THE BIDDER THAT ITS BID PRICE WAS BASED UPON COMPLETING THE WORK WITHIN 315 CALENDAR DAYS AFTER DATE OF RECEIPT OF NOTICE TO PROCEED, AND SINCE PERFORMANCE EXTENDING 315 DAYS FROM DATE OF BID OPENING WOULD HAVE RESULTED IN COMPLETION LATER THAN AUGUST 1, 1960, THE BIDDER WAS ADVISED ON OCTOBER 20 THAT ITS BID WAS NOT RESPONSIVE TO THE INVITATION AND MUST BE REJECTED.

IN PROTEST AGAINST SUCH REJECTION, THE BIDDER HAS SUBMITTED ITS ORIGINAL WORKSHEETS WHICH INDICATE THAT ITS BID PRICE WAS COMPUTED ON THE BASIS OF COMPLETION IN A PERIOD OF 280 DAYS, A PERIOD OF PERFORMANCE WHICH WOULD RESULT IN COMPLETION BY AUGUST 1, 1960, IN THE EVENT NOTICE TO PROCEED WAS RECEIVED WITHIN 10 DAYS FOLLOWING BID OPENING. ADDITIONALLY, THE BIDDER HAS SUBMITTED AN AFFIDAVIT, EXECUTED BY MR. T. SPENCER CROWLEY, VICE PRESIDENT-FLORIDA, OF THE HENRY C. BECK COMPANY, WHO PREPARED AND SUBMITTED THE BID, WHICH STATES THAT THE INSERTION OF THE FIGURE "315" WAS NOT INTENDED TO VARY THE SCHEDULE OF COMPLETION PRESCRIBED BY THE SPECIAL CONDITIONS, BUT WAS THE RESULT OF A HASTY CALCULATION MADE A HALF-HOUR BEFORE BID OPENING WHEN, IN REVIEWING THE BID AND SEEING A BLANK SPACE BETWEEN THE WORDS "WITHIN" AND "CALENDAR" ON THE BID FORM WHICH APPEARED TO REQUIRE COMPLETION, MR. CROWLEY MISTAKENLY CALCULATED 315 DAYS, RATHER THAN 285 DAYS, BETWEEN BID OPENING ON OCTOBER 15, 1959, AND COMPLETION ON AUGUST 1, 1960. IN VIEW THEREOF THE BIDDER REQUESTS THAT ITS BID BE CORRECTED BY DELETING THE FIGURE "315" AND BE CONSIDERED FOR AWARD AS CORRECTED.

THE QUESTION WHETHER INSERTION OF THE FIGURE "315" ON THE BID FORM RENDERED THE BID NONRESPONSIVE TO THE INVITATION DEPENDS UPON WHETHER SUCH INSERTION WOULD OPERATE, IN THE EVENT THE BID WERE ACCEPTED, TO RELIEVE THE BIDDER FROM COMPLETING ALL WORK UNDER THE CONTRACT BY AUGUST 1, 1960. AS AMENDED BY DELETION OF THE PHRASE "WITHIN CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED" AND ADDITION OF THE PHRASE "AS SPECIFIED IN PARAGRAPH SC-1 OF THE SPECIFICATIONS," THE BID FORM UNQUALIFIEDLY REQUIRED BIDDERS TO COMPLETE ALL WORK BY AUGUST 1, 1960, WITHOUT REFERENCE TO THE NUMBER OF CALENDAR DAYS WHICH MIGHT BE AVAILABLE FOR COMPLETION BETWEEN RECEIPT OF NOTICE TO PROCEED AND AUGUST 1, 1960. WHILE IT WAS WITHIN THE POWER OF A BIDDER TO QUALIFY ITS BID IN A MANNER WHICH WOULD HAVE RELIEVED THE BIDDER FROM ANY LEGAL OBLIGATION TO COMPLETE ALL WORK BY AUGUST 1, 1960, AT THE PRICE BID, IT IS OUR OPINION THAT SUCH RELIEF WOULD REQUIRE A CLEAR INDICATION BY THE BIDDER IN ITS BID THAT IT DID NOT INTEND TO BE BOUND BY THE COMPLETION PROVISIONS OF THE STANDARD CONDITIONS, AND THAT ITS BID PRICE WAS CONDITIONED UPON COMPLETION AT SOME OTHER DEFINITE DATE OR OVER A SPECIFIED PERIOD OF TIME. DELETION OF THE REFERENCE TO "CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED" EFFECTIVELY ELIMINATED THIS CONDITION FROM THE BID FORM AND FROM THE BID, AND RAISES SERIOUS QUESTION AS TO WHETHER THE ACT OF INSERTING THE FIGURE "315" IN SUCH DELETED PORTION OF THE BID FORM, WITH NO CHANGE IN WORDING "AS SPECIFIED IN PARAGRAPH SC-1 OF THE SPECIFICATIONS," WOULD OPERATE, AS A MATTER OF LAW, TO ALLOW THE CONTRACTOR 305 DAYS FROM THE DATE OF RECEIPT OF NOTICE TO PROCEED, OR FROM ANY OTHER DATE, IN WHICH TO COMPLETE ALL WORK IN THE EVENT ITS BID WAS ACCEPTED.

WHILE IT MAY BE CONTENDED THAT THE BIDDER'S ACTION CREATED AN AMBIGUITY IN ITS BID, THE RULE IS WELL ESTABLISHED THAT AN AMBIGUITY IN A CONTRACT OR BID IS TO BE CONSTRUED AGAINST THE PARTY WHO CREATED THE AMBIGUITY. SEE 12 AM.JUR., CONTRACTS, SEC. 252; WILLISTON ON CONTRACTS, SECTIONS 37 AND 621; 16 COMP. GEN. 569; B-133769, SEPTEMBER 20, 1957. WE ARE THEREFORE INCLINED TO THE VIEW THAT THE BIDDER WOULD HAVE BEEN REQUIRED TO COMPLETE ALL WORK BY AUGUST 1, 1960, IF A CONTRACT HAD BEEN AWARDED ON THE BASIS OF THE BID AS SUBMITTED. SO LONG AS THE BIDDER IS SPECIFICALLY REQUIRED TO COMPLETE PERFORMANCE BY THAT DATE WE SEE NO BASIS UPON WHICH IT CAN BE CONTENDED THAT THE BIDDER WOULD RECEIVE AN UNFAIR ADVANTAGE OVER OTHER BIDDERS. WE ARE THEREFORE OF THE OPINION THAT REJECTION OF THE BID AS NONRESPONSIVE, BECAUSE ACCEPTANCE WOULD HAVE PERMITTED THE CONTRACTOR A GREATER TIME FOR PERFORMANCE THAN WAS REQUIRED BY THE INVITATION AND THAN WOULD HAVE BEEN REQUIRED OF OTHER BY THE INVITATION AND THEN WOULD HAVE BEEN REQUIRED OF OTHER BIDDERS, WOULD BE IMPROPER.

IN VIEW OF THE ABOVE, WE SEE NO NECESSITY FOR CORRECTING THE BID SUBMITTED BY THE HENRY C. BECK COMPANY. ACCORDINGLY, IF OTHERWISE PROPER, A DEFINITIVE CONTRACT CALLING FOR COMPLETION AS SPECIFIED IN PARAGRAPH SC- 1 OF THE SPECIFICATIONS MAY BE EXECUTED WITH THE HENRY C. BECK COMPANY ON THE BASIS OF ITS BID AS SUBMITTED.

THE ENCLOSURES RECEIVED WITH THE LETTER FROM THE ASSISTANT SECRETARY ARE RETURNED.