B-141174, NOV. 20, 1959

B-141174, NOV. 20, 1959

TO MR. A. B. WEST, ACTING REGIONAL DIRECTOR, BUREAU OF RECLAMATION, REGION 3, U.S. DEPARTMENT OF THE INTERIOR:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 2, 1959, FILE 3-200, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN IN REGARD TO A MISTAKE ALLEGED TO HAVE BEEN MADE BY MR. EVERETT SQUIRES IN HIS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS OPENED OCTOBER 7, 1959, FOR FURNISHING WORK AND MATERIALS FOR THE CONSTRUCTION OF 10 DRAINAGE WELLS ON THE WELLTON-MOHAWK DIVISION, GILA PROJECT, ARIZONA.

IN ADDITION TO THE BID OF MR. SQUIRES IN THE AMOUNT OF $31,240, TWO OTHER BIDS WERE RECEIVED, ONE IN THE AMOUNT OF $38,400, AND THE OTHER IN THE AMOUNT OF $57,903.33. THE SCHEDULE OF WORK INCLUDED 13 ITEMS, INCLUDING ITEM NO. 9, WHICH CALLED FOR FURNISHING AND PLACING REINFORCEMENT BARS FOR CONCRETE SLAB AND PIER FOOTINGS. THE QUANTITY WAS SHOWN AS 1,600 POUNDS. MR. SQUIRES BID $36 AS THE UNIT PRICE AND EXTENDED THE TOTAL OF ITEM NO. 9 AS $360. THE OTHER UNIT PRICES BID WERE $1.50 AND $0.79, WITH EXTENDED TOTALS OF $2,400 AND $1,264. THE GOVERNMENT ESTIMATE FOR THE ITEM WAS $480. MINOR ERRORS--- NOT MATERIAL HERE--- ON ITEMS OTHER THAN ITEM NO. 9 WERE MADE BY MR. SQUIRES AS WELL AS BY ANOTHER BIDDER. OBVIOUSLY, HOWEVER, THE BID OF MR. SQUIRES ON ITEM NO. 9 IS SUBJECT TO QUESTION SINCE THE QUANTITY (UNIT) OF 1,600 POUNDS WHEN MULTIPLIED BY THE UNIT PRICE OF $36 DOES NOT EQUAL $360. MR. SQUIRES WAS PRESENT AT THE OPENING OF BIDS AND STATED ORALLY AT THAT TIME THAT HIS UNIT PRICE WAS INTENDED AS A UNIT PRICE PER WELL, OR $360 FOR 10 WELLS. HE WAS REQUESTED TO FURNISH ORIGINAL WORK SHEETS IN SUPPORT OF THE ALLEGED MISTAKE AND TO INDICATE THE RELIEF DESIRED, SUCH AS WITHDRAWAL OF BID OR CORRECTION OF BID PRICE. ALSO, HE WAS REQUESTED TO FURNISH A STATEMENT OF EXPERIENCE, REFERENCES, STATEMENT OF ASSETS, AND A LIST OF EQUIPMENT TO BE USED IN THE PERFORMANCE OF THE WORK. THIS LATTER REQUEST WAS MADE IN ACCORDANCE WITH PARAGRAPH 3 OF THE INSTRUCTIONS TO BIDDERS WHICH PROVIDES THAT BEFORE A BID IS CONSIDERED FOR AWARD, THE BIDDER MAY BE REQUESTED BY THE GOVERNMENT TO SUBMIT SUCH DATA. MR. SQUIRES DID NOT FURNISH ANY EVIDENCE IN CLARIFICATION OF HIS BID NOR DID HE FURNISH ANY DATA AS TO HIS EXPERIENCE, ETC. AFTER SEVERAL DAYS, HE REPLIED BY TELEGRAM ON OCTOBER 16, 1959, THAT DUE TO COMMITMENTS MADE SINCE THE BID WAS SUBMITTED, HE WISHED TO WITHDRAW HIS BID.

IT IS STATED THAT WITHOUT HAVING A LIST AND DESCRIPTION OF THE EQUIPMENT MR. SQUIRES WOULD USE, IF A CONTRACT WERE AWARDED TO HIM, A LIST OF THE COMPLETED CONTRACTS OF A SIMILAR NATURE, AND INFORMATION AS TO HIS FINANCIAL RESOURCES, IT CANNOT BE SAID THAT HE POSSESSES THE NECESSARY QUALIFICATIONS FOR PERFORMANCE OF THE ADVERTISED WORK. ALSO, IT IS STATED THAT HIS BID ON ITEM NO. 9 IS NOT RESPONSIVE TO THE INVITATION AND THAT IT CANNOT BE DEFINITELY DETERMINED WHAT HE INTENDED TO BID IN THE ABSENCE OF PROOF AS TO HOW THE MISTAKE WAS MADE.

YOU RECOMMEND THAT THE BID OF MR. SQUIRES BE DISREGARDED AND THAT THE SECOND LOW BID BE ACCEPTED IN LIEU OF READVERTISING SINCE IT WOULD BE ADVANTAGEOUS TO THE GOVERNMENT AS IT IS IN LINE WITH THE GOVERNMENT ESTIMATE OF $38,130 FOR THE WORK.

THE GENERAL RULE IS THAT ACCEPTANCE OF A BID WITH KNOWLEDGE OF ERROR THEREIN DOES NOT CONSUMMATE A VALID AND BINDING CONTRACT. SEE 36 COMP. GEN. 441 AND CASES THERE CITED. THERE IS NOTHING IN THE RECORD TO SHOW THAT THIS CASE SHOULD BE CONSIDERED AS AN EXCEPTION TO THIS GENERAL RULE.

ACCORDINGLY, THE BID OF MR. SQUIRES SHOULD BE DISREGARDED. AS TO THE MATTER OF WHETHER THE SECOND LOW BID SHOULD BE ACCEPTED, WE WOULD NOT BE REQUIRED TO OBJECT TO SUCH ACTION IF, AS YOU STATE, YOU DETERMINE THAT IT WOULD BE ADVANTAGEOUS TO DO SO.

THE ORIGINAL DOCUMENTS ENCLOSED WITH YOUR LETTER ARE RETURNED HEREWITH.