B-157819, DEC. 10, 1965

B-157819, DEC. 10, 1965

TO THE SECRETARY OF COMMERCE:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 1, 1965 (FILE A-3.12) FROM THE ACTING HEAD, PROCUREMENT AND SUPPLY MANAGEMENT, ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, U.S. WEATHER BUREAU, REQUESTING A DECISION AS TO WHETHER HAYES-KAUFMAN ASSOCIATES, INC., MAY BE RELIEVED OF THE OBLIGATION TO PERFORM CONTRACT NO. C2WB-4106, DATED AUGUST 20, 1965.

BY INVITATION NO. 1-WB-2-66 PREPARED ON STANDARD FORM 20 (JANUARY 1961), THE WEATHER BUREAU REGIONAL OFFICE, ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, FORT WORTH, TEXAS, SOLICITED BIDS, TO BE OPENED AUGUST 16, 1965, FOR "ERECTION OF RADAR TOWER" AT ATHENS CLARKE COUNTY AIRPORT, ATHENS, GEORGIA. UNDER THE CAPTION "DESCRIPTION OF WORK," THE INVITATION STATED:

"FURNISH ALL LABOR AND MATERIALS REQUIRED TO ERECT A FIFTY FOOT TRIANGULAR STEEL RADAR TOWER AND WORK ASSOCIATED THEREWITH AT ATHENS CLARKE COUNTY AIRPORT, ATHENS, GEORGIA IN ACCORDANCE WITH ADDENDUM NO. 1, DRAWINGS, AND SPECIFICATIONS WHICH ARE ATTACHED. SITE INFORMATION WILL BE FURNISHED BY THE METEOROLOGIST IN CHARGE, WEATHER BUREAU AIRPORT STATION, ATHENS, GEORGIA.'

THE BID FORM, STANDARD FORM 21 (JUNE 1964), ATTACHED TO THE INVITATION, GAVE THE NAME AND LOCATION OF THE PROJECT WITH RESPECT TO WHICH THE BID WAS BEING SUBMITTED AS "ERECTION OF RADAR TOWER" AT THE LOCATION INDICATED, AND IT WAS STATED THEREIN, IN PERTINENT PART, AS FOLLOWS:

"IN COMPLIANCE WITH THE ABOVE-DATED INVITATION FOR BIDS, THE UNDERSIGNED HEREBY PROPOSES TO PERFORM ALL WORK FOR ERECTION OF A FIFTY FOOT TRIANGULAR STEEL RADAR TOWER AND ASSOCIATED WORK AT ATHENS CLARKE COUNTY AIRPORT, ATHENS, GEORGIA, IN STRICT ACCORDANCE WITH THE GENERAL PROVISIONS (STANDARD FORM 23-A), LABOR STANDARDS PROVISIONS APPLICABLE TO CONTRACTS IN EXCESS OF $2,000 (STANDARD FORM 19-A), SPECIFICATIONS, SCHEDULES, DRAWINGS, AND CONDITIONS, FOR THE FOLLOWING AMOUNT/S).'

THE FIRST PAGE OF ADDENDUM NO. 1 (REFERRED TO IN THE INVITATION) BEARS THE TITLE "ADDENDUM NO. 1 TO PLANS AND SPECIFICATIONS FOR ALTERATIONS AND ADDITIONS TO AIR TERMINAL * * * ATHENS-CLARKE COUNTY AIRPORT.' IT SHOWS HEERY AND HEERY, INC., TO BE THE ARCHITECTS AND ENGINEERS FOR THE PROJECT; IT REFERS TO SPECIFICATION "COMM. NO. 6552; " AND IT IS STATED THEREON THAT THE ADDENDUM ,SHALL MODIFY AND TAKE PRECEDENCE OVER THE ORIGINAL PLANS.' DRAWING NO. FW-311-60 WAS ENTITLED ,MODULATOR BUILDING AND RADAR TOWER," AND SHOWED THE PLANS OF BOTH "EXISTING BUILDING" AND NEW CONSTRUCTION," THE LATTER OF WHICH INCLUDED BOTH THE CONFIGURATION OF THE TOWER FOUNDATION AND A FOUR ROOM ADDITION TO THE EXISTING BUILDING. FOUR MINOR CHANGES IN THE PLANS FOR THE ADDITION TO THE EXISTING BUILDING ARE DESCRIBED ON THE FIRST PAGE OF THE ADDENDUM. FOLLOWING THE FIRST PAGE OF THE ADDENDUM AND ATTACHED THERETO ARE "SPECIFICATIONS FOR ERECTION OF A FIFTY FOOT TRIANGULAR STEEL TOWER AT ATHENS CLARKE COUNTY AIRPORT, ATHENS, GEORGIA," CONSISTING OF PAGES 1 THROUGH 7, WHEREIN DETAILED SPECIFICATIONS RELATING TO THE ERECTION OF THE RADAR TOWER ARE SET FORTH. INSOFAR AS MATERIAL HERE, THE SPECIFICATIONS FOR THE RADAR TOWER PROVIDE AS FOLLOWS:

"1. SCOPE

1.1 THESE SPECIFICATIONS ARE IN ADDITION TO AND FORM A PART OF THE SPECIFICATIONS PREPARED BY HEERY AND HEERY, ARCHITECTS AND ENGINEERS, TITLED ALTERATIONS AND ADDITIONS TO AIR TERMINAL, ATHENS CLARKE COUNTY AIRPORT FOR U.S. DEPARTMENT OF COMMERCE, WEATHER BUREAU, DATED JUNE 25, 1965.

1.2 THIS ADDITIONAL SPECIFICATION COVERS THE FOLLOWING WORK:

A. CONSTRUCTION OF RADAR TOWER FOUNDATION.

B. ERECTION OF FIFTY FOOT TRIANGULAR STEEL TOWER.

C. INSTALLATION OF FIVE 2 INCH RIGID CONDUITS UP THE TOWER FROM THE MODULATOR ROOM.

D. ASSEMBLY AND HOISTING RADOME AND ANTENNA TO TOP OF ASSEMBLED RADAR TOWER.

2. CONSTRUCTION OF RADAR TOWER FOUNDATIONS

2.1 APPLICABLE DRAWINGS

A. DRAWING FW-311-60, TO SHOW LOCATION OF FOUNDATION.

B. DRAWING SF-467-2, DIMENSIONS OF FOUNDATION.

C. DRAWING FW-260-110, REINFORCING STEEL, ANCHOR BOLTS, AND BEARING PLATE SCHEDULE.

D. DRAWING SF-467-2A, FOUNDATION DIMENSION MODIFICATION FOR FIFTY FOOT TOWER (TWO COPIES AVAILABLE TO PROSPECTIVE BIDDERS IN THE OFFICE OF THE WEATHER BUREAU AIRPORT STATION AT ATHENS, GEORGIA).

2.2 REQUIREMENTS

2.2.1 THE CONTRACTOR SHALL CONSTRUCT THE FOUNDATION IN STRICT CONFORMITY WITH THE DRAWINGS AND SPECIFICATIONS. THE DIMENSIONS SHOWN ARE CRITICAL AND MUST BE ADHERED TO. THE EXACT SITE AND ORIENTATION ARE AS SHOWN ON DRAWING FW-311-60. THE DISTANCES BETWEEN PIERS ARE SHOWN ON DRAWING SF- 467-2A.'

"2.3 MATERIALS

2.3.1 SECTION 3A OF THE BASIC SPECIFICATIONS TITLED ALTERATIONS AND ADDITIONS TO AIR TERMINAL ATHENS CLARKE COUNTY AIRPORT FOR U.S. DEPARTMENT OF COMMERCE, WEATHER BUREAU, DATED JUNE 25, 1965, SHALL BE COMPLIED WITH IN REGARD TO THE FOUNDATION.'

"3. ERECTION OF 50 FOOT TRIANGULAR STEEL TOWER"

"3.2 REQUIREMENTS"

"3.2.3 THE TOWER IS TRIANGULAR APPROXIMATELY 67 FEET HIGH, AND IS FABRICATED CHIEFLY OF ANGLE MEMBERS WITH SOLID, ROUND RODS AS DIAGONAL BRACING. IT IS STORED AT THE ATHENS CLARKE COUNTY AIRPORT NEAR THE INSTALLATION SITE. ONLY THE TOP 50 FEET OF THE TOWER SHALL BE ERECTED. THE LOWER SECTION SHALL BE STORED AS DIRECTED BY THE WEATHER BUREAU REPRESENTATIVE. * * *"

"3.2.5 THE TOWER SHALL BE ERECTED ON THE FOUNDATIONS DESCRIBED IN SECTION 2 OF THESE SPECIFICATIONS. ORIENT THE TOWER ON FOUNDATIONS AS SHOWN ON DRAWING FW-311-60.

3.2.6 THE TOP PLATFORM OF THE TOWER AS SHOWN IN THE ATTACHED PHOTOGRAPH HAS BEEN MODIFIED. THE MODIFICATION TO THE ORIGINAL PLATFORM, WHICH THE CONTRACTOR SHALL ERECT, CONSISTS ESSENTIALLY OF A STEEL CHANNEL RING APPROXIMATELY 12 FEET 6 INCHES IN DIAMETER, MOUNTED ON THE HORIZONTAL MEMBERS OF THE ORIGINAL PLATFORM, AND A SUPPORT FOR THE RADAR ANTENNA AND FLOOR. THE STAIRS HAVE BEEN MOVED INWARD A SHORT DISTANCE. ERECTION DRAWINGS OF THE MODIFIED PLATFORM WILL BE AVAILABLE, BOTH FOR BID AND ERECTION PURPOSES. * * *"

ATTACHED TO THE ADDENDUM ARE DRAWING NO. FW-311-60 WHICH IS IDENTIFIED ABOVE, DRAWING NO. SF-467-2 ENTITLED "FOUNDATION FOR 70 FEET 0 INCHES TRIANGULAR STEEL RADAR TOWER," DRAWING NO. FW-260-110 ENTITLED "REINFORCING STEEL, ANCHOR BOLTS, BEARING PLATES 70 FEET 0 INCHES TRIANGULAR TOWER," AND A PHOTOGRAPH OF A "TEMPERATE TOWER AB 467/FPS-14 DESIGNED BY DRESSER-IDECO," ETC.

FURNISHED WITH THE INVITATION, ALONG WITH THE ADDENDUM, WAS A COPY OF THE SPECIFICATIONS PREPARED BY HEERY AND HEERY FOR "ALTERATIONS AND ADDITIONS TO AIR TERMINAL, ATHENS-CLARKE COUNTY AIRPORT," DATED JUNE 25, 1965, AND RELATED WORKING DRAWINGS NOS. 1 AND 2, DATED MAY 31, 1965, BEARING THE SAME TITLE, PREPARED BY THAT FIRM. THE ONLY REFERENCE IN THE SPECIFICATIONS OF JUNE 25, 1965, TO THE RADAR TOWER IS CONTAINED IN SECTION 1B-3 THEREOF WHICH SETS FORTH THE MINIMUM HOURLY WAGE RATES REQUIRED TO BE PAID TO WORKERS EMPLOYED AT THE SITE IN CONNECTION WITH ,INSTALLATION OF RADAR TOWER AND EQUIPMENT" UNDER DECISION NO. AD-13,992, DATED MAY 11, 1965, OF THE SECRETARY OF LABOR, EXPIRING SEPTEMBER 8, 1965. HOWEVER, A CONFIGURATION OF THE FOUNDATION FOR A "50 FOOT TOWER," INDICATING PRECISELY WHERE IT IS TO BE LOCATED AT THE AIRPORT, APPEARS ON THE REFERRED-TO DRAWING NO. 1, AND INTERESTED PARTIES ARE ADVISED TO "SEE WEATHER BUREAU DWGS FOR TOWER DETAILS.'

IN A BID SUBMITTED UNDER DATE OF AUGUST 12, 1965, HAYES-KAUFMAN ASSOCIATES, INC., OFFERED TO PERFORM THE WORK INVOLVED FOR THE LUMP-SUM PRICE OF $13,625. THE OTHER FIVE BIDS RECEIVED IN RESPONSE TO THE INVITATION WERE IN THE AMOUNTS OF $18,849, $21,450, $30,515, $34,627 AND $55,000, RESPECTIVELY.

IT APPEARS THAT, IN VIEW OF THE DISPARITY BETWEEN THE AMOUNT OF HAYES- KAUFMAN'S BID AND THE AMOUNTS OF THE OTHER BIDS, THE CONTRACTING OFFICER REQUESTED A CONFIRMATION OF THE BID. UPON RECEIVING CONFIRMATION, THE CONTRACT WAS AWARDED TO HAYES-KAUFMAN, WHICH EXECUTED A FORMAL CONTRACT FOR PERFORMANCE OF THE WORK ON AUGUST 20, 1965. THE FORMAL CONTRACT, PREPARED ON STANDARD FORM 23 (CONSTRUCTION CONTRACT), JANUARY 1961 EDITION, SET FORTH, UNDER THE HEADING "WORK TO BE PERFORMED," THE FOLLOWING:

"FURNISH ALL LABOR AND MATERIAL NECESSARY FOR ERECTION OF A FIFTY FOOT TRIANGULAR STEEL RADAR TOWER AND ASSOCIATED WORK AT ATHENS CLARKE COUNTY AIRPORT, ATHENS, GA.'

IT FURTHER APPEARS THAT ON SEPTEMBER 7, 1965, HAYES-KAUFMAN RECEIVED A PROPOSAL DATED SEPTEMBER 1, 1965, FROM ENGLAND ELECTRIC COMPANY, ATHENS, GEORGIA, WHEREIN ENGLAND OFFERED TO PERFORM ALL OF THE ELECTRICAL WORK REQUIRED TO BE DONE UNDER THE SUBJECT SPECIFICATIONS FOR THE SUM OF $4,855. SINCE THIS AMOUNT WAS MUCH GREATER THAN HAYES KAUFMAN ANTICIPATED, IT IMMEDIATELY CONTACTED THE CONTRACTING OFFICER AND REQUESTED ADVICE AS TO WHETHER THE WORK UNDER THE CONTRACT INCLUDED THE CONSTRUCTION OF A BUILDING. UPON RECEIVING AN AFFIRMATIVE ANSWER, THE CONTRACTOR ADVISED THAT IT HAD MISINTERPRETED THE SPECIFICATIONS IN THIS RESPECT AND HAD NOT INCLUDED THE COST OF A BUILDING IN THE ESTIMATE WHICH FORMED THE BASIS FOR ITS BID, AND BY LETTER OF SEPTEMBER 9, 1965, THE CONTRACTOR SUBMITTED ITS FORMAL PROTEST TO THE CONTRACTING AGENCY SEEKING TO BE RELIEVED OF THE OBLIGATION OF PERFORMING THE CONTRACT ON THE GROUND OF MISTAKE.

THE EVIDENCE FURNISHED TO THE CONTRACTING AGENCY BY HAYES-KAUFMAN IN SUPPORT OF THE PROTEST LEAVES NO ROOM FOR DOUBT THAT IT FAILED TO INCLUDE IN ITS BID ANY AMOUNT TO COVER THE COST OF PERFORMING ANY OF THE WORK COVERED BY THE SPECIFICATIONS OTHER THAN THAT WHICH WOULD BE INVOLVED IN ERECTING THE RADAR TOWER.

IN ITS LETTER OF SEPTEMBER 9, 1965, HAYES-KAUFMAN STATES THAT IT INTERPRETED THE INVITATION AS CALLING FOR BIDS FOR THE ERECTION OF A RADAR TOWER ONLY FOR THE FOLLOWING REASONS:

"THE SCOPE 1.2 PREPARED BY THE WEATHER BUREAU CLEARLY DEFINES THE CHARACTER OF THE COMPLETED RADAR TOWER. IT IS WELL WRITTEN AND COMPREHENSIVE. THE ONLY APPARENT REFERENCE IN ALL THE BID DOCUMENTS THAT TIES THE BUILDING CONSTRUCTION TO TOWER ERECTION APPEARS TO BE LINES ONE AND TWO OF SCOPE 1.1; YET ON THE SAME PAGE 2.3.1, LINES THREE AND FOUR, IT STATES (HEERY'S SPECIFICATIONS) SHALL BE COMPLIED WITH IN REGARD TO THE FOUNDATION. THIS ADDITIONAL REFERENCE APPEARED DEFINITIVE. INTERPRETED THIS REFERENCE TO BE A DEFINITIVE POINT OF REFERENCE IN HEERY'S SPECIFICATIONS THAT WE SHOULD COMPLY WITH TO THE EXCLUSION OF OTHER PARTS.

"THE SPECIFICATIONS TITLED "ALTERATIONS AND ADDITIONS TO AIR TERMINAL," GENERAL CONDITIONS, ARE STANDARD A.I.A. (AMERICAN INSTITUTE OF ARCHITECTS) AND ARE INCONSISTENT WITH AND WE DID NOT BELIEVE COMPATIBLE WITH GOVERNMENTAL GENERAL PROVISIONS, STANDARD FORM 23-A AND IT APPEARED THAT THEY WERE INDEED A SEPARATE JOB. THE SIZE AND OBVIOUS PHYSICAL DIFFERENCE BETWEEN THE TWO SPECIFICATIONS MISLED US FURTHER. WE HAVE NEVER COMPLETED A CONTRACT FOR THE FEDERAL GOVERNMENT WHEREIN A.I.A. GENERAL CONDITIONS PRE-EMPTED BOTH FORM 23-A AND FORM 21. FURTHER, ITEMS IN HEERY'S SPECIFICATIONS RE DAVIS BACON, ANTI-KICKBACK ETC. WERE REDUNDANT SINCE THE WEATHER BUREAU HAD INCLUDED THE USUAL STANDARD FORMS IN THEIR SPECIFICATIONS,"ERECTION OF A FIFTY FOOT TRIANGULAR STEEL RADAR TOWER.' HEERY'S SPECIFICATIONS AND THE SPECIAL CONDITIONS FOR "ERECTION OF A FIFTY FOOT TRIANGULAR STEEL RADAR TOWER" ARE INCONSISTENT. WE GAVE ALL THE WEIGHT TO THE WEATHER BUREAU SPECIFICATIONS ONLY WHERE SPECIFICALLY TOLD TO DO SO IN THE WEATHER BUREAU SPECIFICATIONS.

"THE BID WE SUBMITTED WAS FOR "ERECTION OF A FIFTY FOOT TRIANGULAR STEEL RADAR TOWER.' THIS BID WAS ALSO BASED ON OUR EXPERIENCE IN BIDDING IFB NO. 3-WB-2-65, ERECTION OF RADAR TOWER AT LUBBOCK, TEXAS, DATED 18 MAY 1965 AND IFB NO. 2-WB-2-65, ERECTION OF RADAR TOWER AT SAN ANGELO, TEXAS DATED 5 APRIL 1965. NEITHER OF THESE CONTRACTS INCLUDED A BUILDING AND BOTH THESE TWO AND THE ATHENS IFB WERE IDENTICALLY TITLED IN THE DEPARTMENT OF COMMERCE PUBLICATION, OUR SOURCE OF WORK AVAILABLE. HAD THE BID TITLE READ "ERECTION OF FIFTY FOOT TRIANGULAR STEEL RADAR TOWER AND ADDITION TO AIR TERMINAL," WE WOULD NOT HAVE BID THE PROJECT FOR THE REASON THAT WE ARE NOT BUILDING CONTRACTORS AND THE BUILDING APPEARS TO BE A MAJOR PART OF THIS CONTRACT.'

CONSIDERING THE MANNER IN WHICH THE WORK TO BE PERFORMED WAS REFERRED TO AND DESCRIBED IN THE INVITATION, INCLUDING ADDENDUM NO. 1 AND THE APPLICABLE DRAWINGS, WE DO NOT BELIEVE THE INTERPRETATION PLACED UPON THE INVITATION AND THE SPECIFICATIONS BY HAYES-KAUFMAN CAN BE CONSIDERED UNREASONABLE. MOREOVER, THE DESCRIPTION OF THE WORK AS CONTAINED IN THE FORMAL CONTRACT EXECUTED BY THE PARTIES, WHICH WAS PREPARED BY THE GOVERNMENT AND SENT TO HAYES-KAUFMAN FOR EXECUTION, WAS NOT INCONSISTENT WITH THE LATTER'S INTERPRETATION AS TO THE SCOPE OF THE WORK. NOT ONLY DID THE SUBJECT INVITATION AND BID FORM REFER TO AND DESCRIBE THE WORK TO BE PERFORMED AS THE "ERECTION OF A FIFTY FOOT TRIANGULAR STEEL RADAR TOWER AND ASSOCIATED WORK," WITHOUT MENTIONING ANY ALTERATIONS AND ADDITIONS TO BE MADE TO THE AIR TERMINAL BUILDING, BUT THE WORK APPEARS TO HAVE BEEN ADVERTISED IN THE DEPARTMENT OF COMMERCE PUBLICATION REFERRED TO IN THE CONTRACTOR'S LETTER AS "ERECTION OF RADAR TOWER.' WHILE IT APPEARS THAT A RE EXAMINATION OF THE INVITATION AND SPECIFICATIONS BY HAYES-KAUFMAN FOLLOWING THE CONTRACTING OFFICER'S REQUEST FOR CONFIRMATION OF THE BID SHOULD HAVE ALERTED THE BIDDER TO THE POSSIBILITY THAT THE WORK REQUIRED TO BE PERFORMED INCLUDED ALTERATIONS AND ADDITIONS TO THE AIR TERMINAL, AS WELL AS THE ERECTION OF THE RADAR TOWER, A PERSUASIVE ARGUMENT CAN BE MADE TO THE CONTRARY. IN VIEW THEREOF, AND OF HAYES KAUFMAN'S PREVIOUS EXPERIENCE IN BIDDING UPON WEATHER BUREAU CONTRACTS WHICH INVOLVED SOLELY THE ERECTION OF RADAR TOWERS, THE CONTRACTOR'S FAILURE TO DETECT ITS MISTAKE IS UNDERSTANDABLE, PARTICULARLY SINCE IT HAD PLANNED TO SUBCONTRACT THE ENTIRE JOB OF ERECTING THE RADAR TOWER TO ANOTHER CONCERN FROM WHOM IT HAD A FIRM BID AND APPARENTLY MADE NO INSPECTION OF THE WORK TO BE PERFORMED ITSELF.

IT HAS BEEN HELD THAT WHERE, AS HERE, A CONTRACTOR'S FAILURE TO UNDERSTAND WHAT IS REQUIRED OF IT UNDER A CONTRACT IS ATTRIBUTABLE TO THE FAULTY OR AMBIGUOUS MANNER IN WHICH THE GOVERNMENT HAS DESCRIBED THE WORK IN THE INVITATION, OR ACCOMPANYING SPECIFICATIONS, THE GOVERNMENT IS WITHOUT ANY BASIS TO INSIST UPON THE CONTRACTOR'S PERFORMING THE CONTRACT IN ACCORDANCE WITH THE GOVERNMENT'S INTERPRETATION THEREOF--- THOUGH THE LATTER MAY BE THE MOST REASONABLE ONE--- FOR THE ORIGINAL COMPENSATION NAMED. SEE ABE L. GREENBERG CO. V. UNITED STATES (1962), 300 F.2ND 443, 156 CT.CL. 434.

ACCORDINGLY, YOU ARE ADVISED THAT THE CONTRACT ENTERED INTO WITH HAYES- KAUFMAN ASSOCIATES, NC., SHOULD BE CANCELLED WITHOUT COST TO THE CONTRACTOR. THE ENCLOSURES TRANSMITTED WITH THE LETTER FROM THE ACTING HEAD, PROCUREMENT AND SUPPLY MANAGEMENT, ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, U.S. WEATHER BUREAU, ARE RETURNED.