B-142935, MAY 25, 1960

B-142935, MAY 25, 1960

TO MR. E. F. HOGLUND, DIRECTOR, CONSTRUCTION SERVICE, VETERANS ADMINISTRATION:

IN LETTER OF MAY 17, 1960, REFERENCE 088C, WITH ENCLOSURES, YOU REQUEST A DECISION WHETHER A TELEGRAM SIGNED "M R THOMAS CONTRACTOR BY M R THOMASON" SHOULD BE ACCEPTED AS A MODIFICATION OF A BID FROM "THOMASON AND ASSOCIATES, INC., " SIGNED BY "M. R. THOMASON," FOR IMPROVEMENT TO THE WATER SUPPLY AND DISTRIBUTION AT VETERANS ADMINISTRATION HOSPITAL, TUSKEGEE, ALABAMA, PROJECT NO. 01-5149.

NINE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION ON THE SUBJECT PROJECT. THE LOWEST BID ON ITS FACE IN THE AMOUNT OF $93,532 WAS SUBMITTED BY W. G. SPRIGGS, PENSACOLA, FLORIDA. AMONG THE OTHER FACE BIDS WAS ONE IN THE AMOUNT OF $110,000 FROM THOMASON AND ASSOCIATES, INC., MONTGOMERY, ALABAMA, SIGNED BY M. R. THOMASON. IN ADDITION, A TELEGRAM FROM MONTGOMERY, ALABAMA, WAS RECEIVED AS FOLLOWS:

"REFERENCE OUR BID PROJECT NUMBE (SIC) 01-5149 IMPROVEMENT TO WATER SUPPLY VETERANS HOSPITAL TUSKEGEE ALABAMA DEDUCT SIXTEEN THOUSAND SEVEN HUNDRED DOLLARS FROM ITEM ONE OUR BID. REFERENCE TO NOTE NUMBER TWO DRAWING NUMBER L-5 OUR BID BASED ON ROAD BEING CONSTRUCTED WITH COMMON EARTH CLAY EXCAVATED FROM SIDE DITCHES ALONG RIGHT AWAY.

"M R THOMAS CONTRACTOR BY M R THOMASON"

IT IS REPORTED THAT AFTER THE OPENING OF BIDS, THE OFFICE OF THOMASON AND ASSOCIATES, INC., MADE A TELEPHONE INQUIRY REGARDING THE RESULTS OF THE OPENING. IN THE DISCUSSION, THE CALLER STATED THAT THE TELEGRAM WAS INTENDED TO MODIFY THE FIRM'S BID. IMMEDIATELY THEREAFTER, A CONFIRMATORY TELEGRAM WAS SENT BY THE FIRM AS FOLLOWS:

"OUR TELEGRAM MAY 10TH FROM MONTGOMERY ALA. SIGNED M R THOMASON CONTRACTOR BY M R THOMASON PLEASE MAKE SIGNATURE READ M R THOMASON AND ASSOCIATES CONTRACTOR BY M R THOMASON"

THE NEXT DAY, THE FIRM'S SECRETARY SENT A LETTER EXPLAINING HOW ONE FIRM NAME CAME TO BE USED ON THE BID AND ANOTHER ON THE TELEGRAM MODIFICATION. SHE POINTS OUT THAT THOMASON AND ASSOCIATES, INC., (A CORPORATION COMPOSED OF M. R. THOMASON, PRESIDENT, J. F. THOMASON, VICE PRESIDENT, AND PHILIP THOMASON, TREASURER) IS A SUBSIDIARY OF M. R. THOMASON CONTRACTOR (A PARTNERSHIP COMPOSED OF THE CORPORATE OFFICERS AND A. Y. THOMASON) AND THAT BOTH HAVE THE SAME MAILING ADDRESS, TELEPHONE NUMBERS, OFFICE PERSONNEL, AND PERFORM THE SAME PROJECTS. FURTHER, SHE INDICATES THAT ALL THE DEALINGS ON THE PROJECT BY OFFICE PERSONNEL HAD BEEN IN THE NAME OF M. R. THOMASON CONTRACTOR, AND THAT NOT UNTIL THE DAY THE BID WAS MAILED WAS IT DECIDED THAT THE NAME OF THE SUBSIDIARY WOULD BE USED. SHE STATES THAT MR. M. R. THOMASON AUTHORIZED HER TO SEND THE TELEGRAPHIC MODIFICATION, BUT DID NOT INSTRUCT WHICH SIGNATURE SHOULD BE USED. APPARENTLY, BECAUSE OF THE EXTENSIVE PRIOR USE OF "M. R. THOMASON CONTRACTOR" ON OTHER CORRESPONDENCE CONCERNING THE PROJECT, WHEN SHE TELEPHONED THE MODIFICATION TO THE TELEGRAPH OFFICE BY FORCE OF HABIT SHE TOLD THEM TO SIGN IT "M. R. THOMASON CONTRACTOR BY M. R. THOMASON.' EVIDENTLY, IN RECORDING OR TRANSMITTING THE MESSAGE TO THE GOVERNMENT, THE TELEGRAPH OFFICE ERRED IN SPELLING THE FIRM NAME.

SINCE THE TELEGRAM REFERS TO A BID HAVING BEEN MADE ON THE NUMBERED PROJECT AND NO BID WAS RECEIVED FROM ANY "M. R. THOMAS CONTRACTOR," IT SEEMS OBVIOUS ON THE FACE OF IT THAT THERE IS AN ERROR IN THAT PART OF THE SIGNATURE. FURTHER, THE IDENTITY OF NAMES IN THE PERSONAL SIGNATURES, I.E., M. R. THOMASON, AND THE SIMILARITY OF LOCATION OF THE FIRMS, I.E., MONTGOMERY, ALABAMA, IN THE BID AND THE TELEGRAM MAKE IT CLEAR THAT THE MODIFICATION COULD ONLY HAVE REFERENCE TO THE ONLY OTHER BID SIGNED BY AN M. R. THOMASON, I.E., THE BID OF THOMASON AND ASSOCIATES, INC. SINCE THE IDENTITY OF THE FIRM SUBMITTING THE MODIFICATION SUFFICIENTLY APPEARS FROM THE PERSONAL NAME EMPLOYED, THE MISNOMER ON THE TELEGRAM APPEARS TO BE IN THE NATURE OF AN OBVIOUS CLERICAL ERROR WHICH SHOULD NOT DEFEAT THE CLEAR INTENT OF THE MODIFICATION.

THE TELEGRAM SO CLEARLY ESTABLISHES THE INTENTION OF THOMASON AND ASSOCIATES, INC., TO MODIFY THEIR ORIGINAL BID THAT ACCEPTANCE OF THE BID AS MODIFIED WOULD CREATE A CONTRACT BINDING ON THE BIDDER. IN THESE CIRCUMSTANCES, THE BID OF THOMASON AND ASSOCIATES, INC., AS MODIFIED, BEING THE LOWEST RECEIVED, SHOULD BE CONSIDERED FOR AWARD, IF OTHERWISE ACCEPTABLE.