B-141206, NOV. 17, 1959

B-141206, NOV. 17, 1959

TO WILLIAM M. HAUSSMANN, CONTRACTING OFFICER, NATIONAL CAPITAL PARKS:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 9, 1959, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO THE BID SUBMITTED BY JAMES L. PARTELLO, INC., IN RESPONSE TO INVITATION FOR BIDS, IDENTIFIED AS CONTRACT NO. 14-10-028-1869, COVERING THE CONSTRUCTION OF A BOATHOUSE FOR THE WATER SPORTS CENTER, ROCK CREEK LAND POTOMAC PARKWAY, WASHINGTON, D.C.

THE INVITATION WAS ISSUED ON OCTOBER 15, 1959, AND TWO AMENDMENTS THERETO WERE SUBSEQUENTLY ISSUED ON OCTOBER 26 AND 29, RESPECTIVELY. THE BID OPENING WAS HELD ON NOVEMBER 3, 1959, AS SCHEDULED.

SEVEN BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE BID FORM OF THE APPARENT LOW BIDDER, JAMES L. PARTELLO, INC., OF HYATTSVILLE, MARYLAND, DATED NOVEMBER 3, 1959, CONTAINS IN THE APPROPRIATE SPACE PROVIDED ON PAGE 2 OF STANDARD FORM 21 FOR ACKNOWLEDGING RECEIPT OF ADDENDA THE FOLLOWING TYPED ENTRY:

TABLE

"ADDENDUM NO. 1--- OCTOBER 26, 1959

ADDENDUM NO. 2--- OCTOBER 29, 1959

ORAL ADDENDUM COVERING MASONRY CHANGE

ORAL ADDENDUM COVERING MECHANICAL GUARANTEE TO 2 YEARS"

IT IS REPORTED THAT YOU AND YOUR STAFF WERE PUZZLED BY THE ABOVE ENTRY BECAUSE NO ORAL ADDENDUM HAD BEEN ISSUED BY THE NATIONAL CAPITAL PARKS. BY LETTER DATED NOVEMBER 6, 1959, SIGNED AND DULY SWORN TO BY ITS PRESIDENT, JAMES L. PARTELLO (WHO SIGNED THE BID), THE BIDDER, JAMES L. PARTELLO, INC., ADVISED THAT THE REFERENCE TO ORAL ADDENDA SHOULD NOT HAVE BEEN MADE ON THIS BID AS THEY HAD REFERENCE TO A BID FOR THE CONSTRUCTION OF THE BETHESDA ELEMENTARY SCHOOL FOR MONTGOMERY COUNTY, MARYLAND. THERE WAS ENCLOSED WITH THE LETTER A COPY OF AN ADDENDUM DATED NOVEMBER 3, 1959, NUMBERED ADDENDUM NO. 3, WHICH BEARS THE LEGEND "NOTIFIED BY TELEPHONE," ISSUED BY THE ARCHITECT FOR THE CONSTRUCTION OF THE BETHESDA ELEMENTARY SCHOOL COVERING CERTAIN CHANGES IN THE MASONRY WORK AND REQUIRING BIDDERS TO GUARANTEE CERTAIN WORK OR EQUIPMENT FOR TWO YEARS RATHER THAN 1 YEAR.

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE APPEARS NO DOUBT THAT THE REFERENCE TO ORAL ADDENDA WAS INADVERTENTLY INCLUDED IN THIS BID, AS ALLEGED. THE REFERENCES ARE MEANINGLESS AS NO ORAL ADDENDA WERE ISSUED AND SUCH ORAL ADDENDA ARE NOT AUTHORIZED EITHER BY NATIONAL CAPITAL PARKS OR THE REGULATIONS INCORPORATED IN THE STANDARD FORMS. CLAUSE 1 OF STANDARD FORM 22, INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACTS), SPECIFICALLY PROVIDES:

"ORAL EXPLANATIONS OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INTERPRETATION MADE WILL BE IN THE FORM OF AN ADDENDUM TO THE SPECIFICATIONS OR DRAWINGS AND WILL BE FURNISHED TO ALL BIDDERS AND ITS RECEIPT BY THE BIDDER SHALL BE ACKNOWLEDGED.'

THUS, THE REFERENCE IN THE BID TO ORAL ADDENDA IS NOT ONLY MEANINGLESS BUT ALSO UNAUTHORIZED.

IN THE CIRCUMSTANCES, AND SINCE THERE APPEARS NO DOUBT THAT THE BIDDER DID NOT INTEND THE REFERENCE TO ORAL ADDENDA TO BE APPLICABLE TO THE INSTANT BID, SUCH REFERENCE MAY BE IGNORED AND THE BID OF JAMES L. PARTELLO, INC., MAY BE CONSIDERED RESPONSIVE TO THE INVITATION AND CONSIDERED FOR AWARD. SHOULD THE BID BE ACCEPTED, ALL REFERENCE TO ORAL ADDENDA SHOULD BE OMITTED IN THE FORMAL CONTRACT TO BE SIGNED BY THE PARTIES.