B-145977, JUN. 26, 1961

B-145977, JUN. 26, 1961

TO MR. J. C. KIMBALL:

WE REFER TO YOUR LETTER OF MAY 26, 1961 (REF. D-289A), REQUESTING OUR DECISION RELATIVE TO AN ERROR IN BID ALLEGED BEFORE AWARD BY FULTON SHIPYARD, UNDER INVITATION FOR BIDS NO. (D) 90,582-A.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 30, 1961, BY THE BUREAU OF RECLAMATION, DENVER, COLORADO. IT CALLED FOR BIDS ON A 75-TON TRANSFER CAR, IN ACCORDANCE WITH ATTACHED SPECIFICATIONS, DELIVERY F.O.B. CARS OR TRUCKS, FLAGSTAFF, ARIZONA. EIGHT BIDS WERE RECEIVED BY BID OPENING ON APRIL 28, 1961. THE LOWEST BID AS TO PRICE WAS $1,745, SUBMITTED BY FULTON SHIPYARD, ANTIOCH, CALIFORNIA. THE OTHER BIDS RANGED FROM $2,184 TO $4,350, AND THE GOVERNMENT'S ESTIMATE WAS $4,000. BECAUSE OF FULTON'S RELATIVELY LOW BID, THE CONTRACTING OFFICER, BY TELEGRAM OF MAY 5, 1961, REQUESTED CONFIRMATION.

BY TELEGRAM OF MAY 8, 1961, FULTON STATED THAT BY MISTAKE, FREIGHT WAS NOT INCLUDED IN ITS PRICE. SUBSEQUENTLY, BY LETTER OF MAY 17, 1961, FULTON REQUESTED THAT IT BE ALLOWED TO INCREASE ITS BID BY $350 TO COVER THE COST OF FREIGHT FROM ANTIOCH, CALIFORNIA (BIDDER'S SHIPPING POINT), TO FLAGSTAFF, ARIZONA. AN "ESTIMATE" SHEET WAS ENCLOSED TO SUPPORT THE CLAIM THAT FREIGHT WAS NOT INCLUDED IN THE BID PRICE OF $1,745. THE ENCLOSED SHEET SHOWS PENCILED FIGURES REPRESENTING COSTS FOR MATERIAL (ESTIMATE ON 6,960 POUNDS) AND LABOR, AND A COMPUTATION OF $1,745, INCLUDING AMOUNTS FOR PROFIT AND ENGINEERING. NO AMOUNT FOR FREIGHT IS INDICATED ON THE WORK SHEET.

ACCORDING TO INFORMATION RECEIVED FROM THE REGIONAL TRAFFIC OFFICER, REGION 8 OF THE GENERAL SERVICES ADMINISTRATION, YOU REPORT THAT TWO RATES PREVAIL ON THE TYPE OF EQUIPMENT REQUIRED BY THE SUBJECT INVITATION FROM THE BIDDER'S SHIPPING POINT OF ANTIOCH, CALIFORNIA, TO THE DESTINATION OF FLAGSTAFF, ARIZONA, AS FOLLOWS:

TABLE

ITEM RATE

"CARS, WITH FIXED BODIES OR WITHOUT BODIES, RACKS OR STANDARDS, OR WITH RACKS OR STANDARDS DETACHED AND FLAT, LOOSE $3.90 CWT

"CARS, WITH FIXED RACKS OR STANDARDS, LOOSE 5.03 WT"

YOU ADVISE THAT THE RATE OF $3.90 CWT ($271.44 ON 6,960 POUNDS), APPEARS TO APPLY FROM THE SPECIFICATIONS, BUT THAT THE HIGHER RATE OF $5.03 CWT ($350.09 ON 6,960 POUNDS) MIGHT BE THE APPLICABLE RATE. IF EITHER AMOUNT FOR FREIGHT WERE ADDED TO THE LOW BID, IT WOULD STILL REMAIN LOW BY AT LEAST $89. YOU ASK WHETHER THE FULTON BID SHOULD BE CONSIDERED FOR THE AWARD AND, IF SO, AT WHAT PRICE.

WE RECEIVED FROM OUR TRANSPORTATION DIVISION A COMPUTATION OF THE EXPECTED TRANSPORTATION CHARGES ON THE ITEM SPECIFIED BY THE SUBJECT INVITATION, FROM ANTIOCH, CALIFORNIA, TO FLAGSTAFF, ARIZONA. THE TRANSPORTATION DIVISION REPORTED ON JUNE 8, 1961, AS FOLLOWS:

"THE FILE CONTAINS A STATEMENT FROM THE ACTING CHIEF, MECHANICAL BRANCH, BUREAU OF RECLAMATION, DATED MAY 24, 1961, THAT "THE TRANSFER CAR IS COMPRISED OF A WELDED FRAME AND DECK PLATE. THERE ARE NO BODY, RACKS OR STANDARDS EITHER FIXED OR LOOSE * * *.' AND THIS IS SUBSTANTIATED BY EXAMINATION OF THE DRAWING WHICH IS PART OF INVITATION NO. (D) 90,582-A. ACCORDINGLY, THE TRANSFER CAR IS COVERED BY ITEM 81420, UNIFORM FREIGHT CLASSIFICATION NO. 5, "CARS, RAILWAY, NOT MOVED ON OWN WHEELS, VIZ.: * * * WITH FIXED BODIES OR WITHOUT BODIES RACKS OR STANDARDS, OR WITH RACKS OR STANDARDS DETACHED AND FLAT, LOOSE," AND SUBJECT TO A LESS-THAN-CARLOAD RATING OF CLASS 77 1/2.

"THE CURRENT CLASS 77 1/2 RATE FROM ANTIOCH, CALIFORNIA, TO FLAGSTAFF, ARIZONA, IS $3.90 CWT., SUPPLEMENT 35, PACIFIC SOUTH COAST FREIGHT TARIFF NO. 1016, I.C.C. 1590, AND EX PARTE 223, AND BASED ON THE STATED WEIGHT OF 6,960 LBS., THE TRANSPORTATION CHARGES WOULD BE $271.44.'

TO JUSTIFY CORRECTION OF A BID THE BIDDER MUST ESTABLISH BY CONVINCING EVIDENCE THAT THE PRICE BID IS IN ERROR, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE PRICE WHICH WAS INTENDED AND WOULD HAVE BEEN SUBMITTED IN THE ABSENCE OF ERROR. B-144739, JANUARY 10, 1961; 35 COMP. GEN. 279. HERE, WE ARE REASONABLY CONVINCED THAT THE OMISSION OF AN AMOUNT FROM THE BID COMPUTATION TO COVER THE COST OF TRANSPORTATION, ALLEGED PRIOR TO AWARD AND SUPPORTED BY THE BIDDER'S WORKSHEET AND THE BID PRICE DISPARITY, DID OCCUR. HOWEVER, WE DO NOT THINK THAT THE EVIDENCE IS SUFFICIENTLY CONVINCING TO ALLOW CORRECTION OF THE BID BY $350. IT IS SUGGESTED THAT $350 IS A POSSIBLE AMOUNT FOR TRANSPORTATION IN THE CASE ALTHOUGH NOT THE PROBABLE AMOUNT. BUT THIS IS NOT SUFFICIENT TO ESTABLISH WHAT THE BIDDER INTENDED TO BID BUT FOR THE ERROR. WE ARE NOT CLEARLY CONVINCED THAT FULTON INTENDED TO INCLUDE AN AMOUNT FOR TRANSPORTATION IN ITS BID IN EXCESS OF THE "LIKELY" RATE.

WE CONCLUDE THEREFORE, THAT WHILE THE EVIDENCE SUBMITTED IS SUFFICIENT TO ESTABLISH ERROR IN THE FULTON SHIPYARD BID, IT IS INSUFFICIENT TO SUPPORT CORRECTION OF THE BID AS REQUESTED. ACCORDINGLY, THE FULTON SHIPYARD BID SHOULD BE DISREGARDED IN MAKING THE AWARD.