B-146358, JUL. 26, 1961

B-146358, JUL. 26, 1961

TO MR. B. M. FRENCH, BUREAU OF PUBLIC ROADS:

REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1961, WITH ENCLOSURES, FILE REFERENCE 08-71.81, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING ERRORS WHICH THE HAMER CORPORATION ALLEGES IT MADE IN ITS BID OPENED ON JUNE 30, 1961.

THE BUREAU OF PUBLIC ROADS ISSUED AN INVITATION FOR FURNISHING MATERIALS AND PERFORMING THE WORK FOR CONSTRUCTING THE OREGON TIMBER ACCESS ROAD, PROJECT BLM 501-A, ALAMEDA ROAD, JOSEPHINE COUNTY, OREGON. THE PAY ITEMS IN THE INVITATION ABOUT WHICH QUESTIONS HAVE ARISEN ARE ITEM 100 (3) WHICH SPECIFIES CLEARING AND GRUBBING 40 ACRES AND ITEM 520 (7) WHICH SPECIFIES 25 CUBIC YARDS OF POROUS BACKFILL MATERIAL.

THE LOW BIDDER, THE HAMER CORPORATION, SUBMITTED A BID OFFERING TO PERFORM THE WORK AT THE VARIOUS UNIT AND JOB PRICES SET FORTH OPPOSITE EACH ITEM WHICH, AFTER CORRECTION OF ARITHMETICAL ERRORS BY THE ADMINISTRATIVE OFFICE, TOTALED $654,286.50. THE NEXT TWO LOWEST BIDDERS SUBMITTED BIDS IN THE AMOUNTS OF $666,313 AND $696,306.60. THE ENGINEER'S ESTIMATE WAS IN THE AMOUNT OF $670,439. AS TO ITEMS 100 (3) AND 520 (7), THE HAMER CORPORATION SUBMITTED THE FOLLOWING BID:

CHART:

"PAY UNIT

ITEM ESTIMATED PAY NAMES, WITH UNIT BID PRICE BID AMOUNT

NO. QUANTITY WRITTEN IN WORDS PRICE BID

100 (3) 40 ACRES CLEARING AND GRUBBING, AT 1,000 40,000.00

FORTY THOUSAND DOLLARS PER

ACRE

520 (7) 25 CU.YD. POROUS BACKFILL MATERIAL, AT 10.00 250.00

TWO HUNDRED FIFTY DOLLARS

PER CUBIC YARD"

YOU STATE THAT AFTER THE BID OPENING, MR. P. W. HAMER OF THE HAMER CORPORATION ADVISED BY TELEPHONE THAT HIS SURETY HAD BROUGHT TO HIS ATTENTION THE DISCREPANCY BETWEEN THE UNIT PRICES IN WORDS AND IN FIGURES FOR ITEMS 100 (3) AND 520 (7) AND THAT IT WAS HIS INTENT TO BID THE AMOUNT SHOWN IN FIGURES IN THE UNIT PRICE COLUMN OF THE BID SCHEDULE. YOU ALSO STATE THAT IT IS THE VIEW OF YOUR OFFICE THAT THE HAMER CORPORATION INTENDED THE UNIT PRICE OF $1,000 PER ACRE IN THE CASE OF ITEM 100 (3) AND THE UNIT PRICE OF $10 PER CUBIC YARD IN THE CASE OF ITEM 520 (7) AS SHOWN BY THE FIGURES ENTERED IN THE COLUMN "UNIT BID PRICE" AND CORROBORATED BY THE EXTENSIONS AND BID TOTAL. YOU FURTHER STATE THAT THE WRITTEN WORDS FOR THESE ITEMS ARE OF SUCH GROSS VARIANCE FROM THE UNIT PRICES SHOWN IN FIGURES AS TO BE DEEMED ENTIRELY INAPPLICABLE AND PROPERLY TO BE DISREGARDED IN THE EVALUATION OF THE BID AS TO UNIT PRICES.

THE RECORD INDICATES THAT THE SECOND LOW BIDDER, THROUGH HIS ATTORNEYS, HAS CONTENDED THAT IN VIEW OF THE LANGUAGE USED IN THE LAST SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 2.4 OF STANDARD SPECIFICATION FP-61, THE BID OF THE HAMER CORPORATION SHOULD NOT BE CONSIDERED AS THE LOW BID AND HAS REQUESTED THAT AWARD BE MADE TO HIM. THE LANGUAGE REFERRED TO BY THE SECOND LOW BIDDER IS AS FOLLOWS:

"IN CASE OF A DISCREPANCY BETWEEN THE PRICES IN WORDS AND IN FIGURES, THE PRICES IN WORDS SHALL GOVERN.'

IT IS WELL SETTLED THAT ERRORS IN BIDS WHICH ARE APPARENT FROM THE FACE OF THE BID ITSELF MAY BE CORRECTED TO EFFECTUATE AN AWARD TO AN OTHERWISE LOW BIDDER. IN THE INSTANT CASE THERE CAN BE NO DOUBT THAT THE BIDDER DID NOT INTEND TO BID A UNIT PRICE OF $40,000 FOR CLEARING AND GRUBBING ONE ACRE OF LAND AND A UNIT PRICE OF $250 PER CUBIC YARD FOR FURNISHING POROUS BACKFILL MATERIAL. APPLICATION OF THE ABOVE QUOTED PROVISION IN THIS CASE WOULD UNREASONABLY ATTRIBUTE TO THE BIDDER AN INTENT THAT IT MEANT TO BID ASTRONOMICALLY HIGH PRICES FOR ITEMS AS TO WHICH ITS EXTENDED TOTALS WERE ENTIRELY REASONABLE AND IN LINE WITH OTHER BIDS. FURTHERMORE, REFUSAL TO PERMIT CORRECTION WOULD BE ARBITRARY AND ABSURD.

ACCORDINGLY, SINCE THE WRITTEN UNIT PRICES FOR ITEMS 100 (3) AND 520 (7) ARE OBVIOUSLY IN ERROR THEY MAY BE CORRECTED TO AGREE WITH THE UNIT PRICES SHOWN IN FIGURES AND THE BID OF HAMER CORPORATION SHOULD BE EVALUATED FOR PURPOSES OF AWARD ON THAT BASIS.

THE BID OF THE HAMER CORPORATION IS RETURNED, AS REQUESTED. THE OTHER PAPERS IN THE CASE ARE BEING RETAINED.