B-144860, FEB. 9, 1961

B-144860, FEB. 9, 1961

TO SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 18, 1961, WITH ITS ENCLOSURES, FROM THE CHIEF, CONTRACTS DIVISION, OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY GEORGE O. TUCKER OF DANVILLE, KENTUCKY, TO HAVE BEEN MADE IN HIS BID SUBMITTED IN RESPONSE TO INVITATION NO. QM 11-009-61-2 ISSUED ON SEPTEMBER 7, 1960, BY THE CHICAGO ADMINISTRATION CENTER, U.S. ARMY, PURCHASING BRANCH, CHICAGO, ILLINOIS.

THE INVITATION AS AMENDED REQUESTED BIDS--- TO BE OPENED OCTOBER 11, 1960 --- FOR REPAIRING THE ROOF AND MAKING OTHER EXTERIOR REPAIRS TO THE SUPERINTENDENT'S LODGE AT LEBANON NATIONAL CEMETERY, LEBANON, KENTUCKY. THE INVITATION STATED THAT IT COVERED "WORK DESCRIBED IN SPECIFICATIONS AND DRAWING" DATED AUGUST 1960. THE ONLY BID RECEIVED IN RESPONSE TO THE INVITATION WAS SUBMITTED BY GEORGE O. TUCKER IN THE AMOUNT OF $1,950. AWARD WAS MADE TO HIM ON OCTOBER 12, 1960 (CONTRACT NO. O.I. NO. 526-61) AND THE CONTRACTOR BEGAN WORK OCTOBER 25, 1960. ON OCTOBER 27 HE CEASED WORK, HAVING DONE APPROXIMATELY 11 PERCENT OF THE CONTRACT WORK. BY A LETTER DATED NOVEMBER 5, 1960, HE NOTIFIED THE CONTRACTING OFFICER THAT HE COULD NOT COMPLETE THE WORK FOR THE CONTRACT PRICE. HE STATED THAT, ALTHOUGH HE HAD VISITED THE SITE BEFORE BIDDING, HIS BID WAS BASED ON THE PLAN ATTACHED TO THE INVITATION ERRONEOUSLY SHOWING THE SCALE TO BE ONE- FOURTH INCH PER FOOT WHEREAS THE CORRECT SCALE WAS ONE-EIGHTH INCH PER FOOT. WITH HIS LETTER THE CONTRACTOR INCLUDED AN ITEMIZED COMPUTATION OF HIS BID IN THE AMOUNT OF $1,950 BASED ON THE ERRONEOUS SCALE OF ONE-FOURTH INCH PER FOOT, AND ALSO AN ITEMIZED COMPUTATION BASED ON THE CORRECT SCALE OF ONE-EIGHTH INCH PER FOOT SHOWING A NET COST OF $3,884.40 AND A GROSS COST--- INCLUDING 20 PERCENT PROFIT--- OF $4,661.28. WITH A LETTER DATED DECEMBER 7, 1960, AFTER A TELEPHONIC CONVERSATION WITH THE CONTRACTING OFFICER, THE CONTRACTOR FURNISHED A REVISED COMPUTATION, CHANGING SOME PRICES AND REDUCING HIS PROFIT TO 10 PERCENT, THUS REDUCING THE TOTAL PRICE TO $3,932.04, WHICH AMOUNT HE SUGGESTS AS THE REVISED CONTRACT PRICE.

THE CONTRACTING OFFICER STATES THAT ON THE BASIS OF INFORMATION OBTAINED FROM THE POST ENGINEER OFFICE, CAC, $4,000 IS ESTIMATED TO BE A FAIR PRICE FOR THE CONTRACT WORK AND RECOMMENDS THAT THE CONTRACT BE AMENDED TO INCREASE THE CONTRACT PRICE TO $3,932.04. HE STATES ALSO THAT THE REQUISITION ON WHICH THE SERVICES WERE PROCURED INDICATED AN ESTIMATED COST OF $2,800 WHICH WAS PREPARED BY THE CEMETERY DIVISION, CAC.

THE FILE SHOWS THAT PHOTOSTATIC COPIES OF THE ORIGINAL PLAN--- SHOWING THE SCALE AS ONE-FOURTH INCH PER FOOT--- WERE ATTACHED TO THE INVITATIONS, THE DIMENSIONS OF THE COPIES BEING REDUCED TO ONLY ONE HALF OF THE DIMENSIONS OF THE ORIGINAL PLAN, AND THAT THE INVITATIONS DID NOT INCLUDE NOTICE AS TO SUCH REDUCTION. THEREFORE, THE ACTUAL ROOFING AREA WAS FOUR TIMES THAT SHOWN ON THE COPIES OF THE PLAN ACCOMPANYING THE INVITATIONS. THE SPECIFICATIONS DID NOT STATE THE SIZE OF THE BUILDING INVOLVED.

IN VIEW OF THE FACTS AS REPORTED AND SHOWN BY THE FILE, IT MAY BE REGARDED AS SATISFACTORILY ESTABLISHED THAT GEORGE O. TUCKER MADE A BONA FIDE ERROR IN HIS BID AS ALLEGED AND EXPLAINED BY HIM. IT SEEMS CLEAR ALSO THAT THE ERRONEOUS COPY OF THE PLAN FURNISHED WITH THE INVITATION WAS MISLEADING AND CONDUCIVE TO ERROR BY THE BIDDER AND THAT TO REQUIRE THE CONTRACTOR TO PERFORM AT THE CONTRACT PRICE WOULD BE UNCONSCIONABLE. THEREFORE, WE OFFER NO OBJECTION TO REFORMATION OF THE CONTRACT AS PROPOSED SO AS TO PROVIDE FOR PAYMENT OF A TOTAL AMOUNT OF $3,932.04. REFERENCE TO THIS DECISION SHOULD ACCOMPANY THE CONTRACT.

THE PAPERS TRANSMITTED WITH THE LETTER OF JANUARY 18, 1961, ARE RETURNED HEREWITH.