B-147362, JAN. 23, 1962

B-147362, JAN. 23, 1962

TO THE FORMICA COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 4, 1961, AND NOVEMBER 2, 1961, WITH ENCLOSURES, IN WHICH YOU REQUEST RELIEF UNDER CONTRACT NO. NBY-36334.

THE AREA PUBLIC WORKS OFFICE, BUREAU OF YARDS AND DOCKS, DEPARTMENT OF THE NAVY, NEW YORK, NEW YORK, REQUESTED BIDS UNDER SPECIFICATION NO. 36334/61 FOR FURNISHING MATERIALS AND LABOR AND PERFORMING ALL WORK NECESSARY FOR THE REPLACEMENT OF EXISTING HOT AND COLD WATER PIPING AT THE U.S. NAVAL RESERVE TRAINING CENTER, JERSEY CITY, NEW JERSEY. IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID OFFERING TO PERFORM THE WORK FOR THE LUMP SUM OF $9,600. ON APRIL 27, 1961, CONTRACT NO. NBY-36334 WAS AWARDED TO YOU.

BY LETTER DATED MAY 25, 1961, YOU ADVISED THE AREA PUBLIC WORKS OFFICE AS FOLLOWS:

"PURSUANT TO OUR DISCUSSION I AM SUBMITTING THIS LETTER AS REQUESTED.

"I WOULD LIKE TO BRING TO YOUR ATTENTION YOUR PROPOSED SCALE PERTAINING TO DRAWING NO. 942031. IN REFERRING TO THE SCALE YOU SAY IT SHALL EQUAL 1/8 INCHES EQUALS 1 FOOT FOR THE FIRST FLOOR PLAN. FOR THE SECOND FLOOR PLAN IT IS STATED THE SCALE SHALL BE 1/8 INCHES EQUAL 1 FOOT. BENEATH THIS SCALE STATES: "USE GRAPHIC SCALE," WHICH ALSO STATES 1/8 INCHES EQUALS 1 FOOT.

"ON OUR TAKEOFF, USING THE 1/8 INCHES EQUALS 1 FOOT SCALE FOR THE FIRST FLOOR PLAN WE ESTIMATED SO MANY FEET OF MATERIAL ACCORDING TO THIS SCALE.

"DURING THE INSTALLATION A SHORTAGE OF MATERIAL WAS NOTICED. UPON INVESTIGATION WE FOUND NO MEASUREMENT HELD TRUE TO THE 1/8 INCHES EQUALS 1 FOOT SCALE AS INDICATED ON THE PLAN. THEREFORE, A SHORTAGE OF MATERIAL OCCURRED DURING THE PROGRESS OF THE WORK.

"I WOULD GREATLY APPRECIATE IT IF THIS MATTER WOULD BE GIVEN YOUR CONSIDERATION AS SOON AS POSSIBLE.'

IN REPLY THE AREA PUBLIC WORKS OFFICE ADVISED YOU BY LETTER DATED JUNE 13, 1961, AS FOLLOWS:

"THE OFFICER IN CHARGE OF CONSTRUCTION HAS REVIEWED YOUR LETTER OF 25 MAY 1961 RELATING TO YOUR INTERPRETATION OF THE USE OF THE GRAPHIC SCALE SHOWN ON THE CONTRACT DRAWING NO. 942031.

"THE OFFICER IN CHARGE OF CONSTRUCTION CANNOT AGREE WITH THE INTERPRETATION AS SET FORTH IN YOUR LETTER OF THE USE OF THE GRAPHIC SCALE.

"IN CLARIFICATION, THE GRAPHIC SCALE LABELED 1/8 INCHES EQUALS 1 FOOT 0 INCHES INDICATES THAT THIS GRAPHIC SCALE IS TO BE APPLIED TO THE DRAWING WHEREVER A SCALE OF 1/8 INCHES EQUALS 1 FOOT-0 INCHES IS SHOWN. IT IS POINTED OUT THAT A GRAPHIC SCALE OBVIOUSLY COULD NOT BE APPLIED TO A SINGLE PORTION OF A REDUCED SIZE DRAWING. IN ADDITION, NOTICES CALLING ATTENTION THAT THE 16 INCHES BY 22 INCHES SIZE DRAWINGS ARE REDUCED SIZE DRAWINGS AND CAUTIONING BIDDERS TO USE THE GRAPHIC SCALE FOR ANY SCALING ON THESE REDUCED SIZE DRAWINGS WERE FURNISHED TO ALL BIDDERS AS A PART OF THE BID DOCUMENTS PRIOR TO ACCEPTANCE OF BIDS.'

IN A LETTER DATED JUNE 15, 1961, YOU ADVISED THE AREA PUBLIC WORKS OFFICE THAT YOUR FILE IS COMPLETE AND THAT IN NO PART OF THE CONTRACT IS THERE A STATEMENT THAT THE GRAPHIC LABEL 1/8 INCHES EQUALS 1 FOOT-0 INCHES SHALL NOT BE APPLIED TO THE DRAWING; THAT THERE WAS NO NOTICE ON THE DRAWING CALLING ATTENTION THAT THE 16 INCHES BY 22 INCHES SIZE DRAWINGS WERE REDUCED SIZE DRAWINGS OR CAUTIONING THE BIDDER AGAINST THE GRAPHIC SCALE; AND THAT SINCE THESE DRAWINGS STATE THAT 1/8 INCHES EQUALS 1 FOOT-0 INCHES THERE WAS NO OTHER WAY TO ESTIMATE THE AMOUNT OF REQUIRED MATERIALS.

IN LETTERS DATED OCTOBER 4 AND NOVEMBER 2, 1961, ADDRESSED TO OUR OFFICE, YOU STATE THAT IT WAS NOT UNTIL AFTER YOU HAD COMPLETED ONE THIRD OF THE WORK THAT YOU DISCOVERED THAT A 1/16 INCH SCALE INSTEAD OF A 1/8 INCH SCALE SHOULD HAVE BEEN USED IN COMPUTING THE AMOUNT OF REQUIRED MATERIALS AND LABOR AND THAT THE USE OF A 1/16 INCH SCALE WILL RESULT IN THE COST OF THE MATERIALS AND LABOR BEING DOUBLED. YOU POINT OUT THAT A DRAWING WHICH WAS SUBSEQUENTLY ISSUED BY THE BUREAU OF YARDS AND DOCKS INDICATED THAT IT WAS A HALF-SIZE DRAWING AND THAT THE BUREAU SHOULD HAVE MADE SUCH AN IDENTICAL NOTATION ON THE DRAWING IN QUESTION. YOU STATE THE BUREAU HAS MADE AN ARBITRARY DECISION REGARDING THE SUBJECT CONTRACT AND THAT YOU CAN NOT STAND THE LOSS OF FUNDS RESULTING FROM THE USE OF THE INCORRECT SCALE.

AN EXAMINATION OF Y AND D DRAWING NO. 942031 SHOWS THAT THERE APPEARS THEREON THE NOTATION ,FIRST FLOOR PLAN, SCALE: 1/8 INCH EQUALS 1 FOOT-0 INCHES.' FLOOR PART PLAN, SCALE: 1/8 INCH EQUALS 1 FOOT-0 INCHES.' UNDER THE LATTER NOTATION THERE APPEARS THE STATEMENT "USE GRAPHIC SCALE.' THE CENTER BOTTOM OF THE DRAWING THERE APPEARS A GRAPHIC SCALE, WHICH IS LABELED " 1/8 INCH EQUALS 1 FOOT 0 INCHES.' IN THIS REGARD, IT IS NOTED THAT THE GRAPHIC SCALE MEASURES 1/16 INCHES EQUALS 1 FOOT-0 INCHES RATHER THAN 1/8 INCHES EQUALS 1 FOOT-0 INCHES, AS IT IS LABELED. IT IS REPORTED THAT THIS INCONSISTENCY IS THE RESULT OF A REDUCTION OF THE ORIGINAL DRAWING TO ONE-HALF SIZE IN REPRODUCTION OF COPIES FOR BIDDERS, THUS REDUCING BY ONE-HALF THE LINEAR DISTANCE OF THE GRAPHIC SCALE. IT IS ALSO REPORTED THAT A PINK "NOTICE TO BIDDERS" WAS INCLUDED IN THE BIDDING MATERIAL SENT TO ALL PROSPECTIVE BIDDERS AND THAT SUCH NOTICE ADVISED BIDDERS THAT THE 16 INCHES BY 22 INCHES DRAWINGS ARE OF REDUCED SIZE AND CAUTIONED THEM TO USE THE GRAPHIC SCALES FOR ANY SCALING ON SUCH REDUCED SIZE DRAWINGS. YOU DO NOT STATE IN YOUR LETTERS WHETHER YOU DID OR DID NOT RECEIVE A COPY OF THIS NOTICE. ASSUMING ARGUENDO THAT YOU DID NOT RECEIVE A COPY OF THE NOTICE, THE FACT REMAINS THAT YOUR ESTIMATOR IN TAKING THE MEASUREMENTS FROM THE DRAWING SHOULD HAVE DISCOVERED THAT A 1/8 INCH SCALE WAS NOT THE PROPER SCALE TO BE USED AND HE SHOULD HAVE NOTED FROM THE MARKS SHOWN ON THE GRAPHIC SCALE APPEARING ON THE DRAWING THAT SUCH SCALE WAS BASED ON 1/16 INCHES EQUALING 1 FOOT. YOU CONTEND THAT IN ESTIMATING THE AMOUNT OF PIPING REQUIRED FOR THE JOB, YOU USED A 1/8 INCH SCALE. IN THIS CONNECTION, IT IS NOTED THAT IF A 1/8 INCH SCALE IS USED IN MEASURING ONE OF THE CLASSROOMS SHOWN ABOVE THE GRAPHIC SCALE APPEARING ON THE DRAWING, SUCH CLASSROOM WOULD MEASURE APPROXIMATELY 8 FEET BY 8 FEET. IT IS OBVIOUS THAT A ROOM MEASURING ONLY 8 FEET BY 8 FEET WOULD NOT BE DESIGNATED AS A CLASSROOM SINCE ITS SIZE WOULD BE TOO SMALL FOR ITS INTENDED USE. ALSO, THE SAME PRINCIPLE IS APPLICABLE TO OTHER ROOMS SHOWN ON THE DRAWING, PARTICULARLY THOSE ROOMS CONTAINING LAVATORIES AND SIMILAR EQUIPMENT. FURTHERMORE, UNDER THE ,GENERAL NOTES" APPEARING AT THE TOP OF THE DRAWING, PROSPECTIVE BIDDERS WERE ADVISED THAT ,CONTRACTOR SHALL VERIFY ALL LOCATIONS, CONDITIONS AND DIMENSIONS, IN THE FIELD.' THE RECORD DOES NOT INDICATE WHETHER YOU MADE SUCH A FIELD INSPECTION. VIEW OF THE FOREGOING, IT IS OUR OPINION THAT YOUR ESTIMATOR SHOULD HAVE KNOWN THAT A 1/8 INCH SCALE WAS NOT THE PROPER SCALE TO BE USED IN ESTIMATING THE AMOUNT OF REQUIRED MATERIALS AND LABOR.

THERE WAS NOTHING ON THE FACE OF YOUR BID TO INDICATE THAT YOUR BID PRICE WAS BASED ON THE USE OF A 1/8 INCH SCALE ESTIMATING THE AMOUNT OF MATERIALS AND LABOR REQUIRED FOR THE JOB. THE ABSTRACT OF BIDS SHOWS THAT THE SIX OTHER BIDS ON THE PROJECT RANGED FROM $11,698 TO $20,970. BECAUSE OF THE WIDE RANGE OF BIDS, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS--- OR SHOULD HAVE BEEN--- ON NOTICE OF THE PROBABILITY OF ERROR IN YOUR BID. SO FAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH. THE ACCEPTANCE OF YOUR BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

ACCORDINGLY, YOU ARE ADVISED THAT THERE APPEARS NO LEGAL BASIS FOR INCREASING THE CONSIDERATION SPECIFIED IN CONTRACT NO. NBY-36334.