B-160663, JAN. 26, 1967

B-160663, JAN. 26, 1967

TO FEDERAL CONSTRUCTION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JANUARY 11, 1967, PROTESTING THE REJECTION OF YOUR BID AS NONRESPONSIVE BY THE DEPARTMENT OF THE INTERIOR UNDER ITS SPECIFICATION NO. 100C-891, COLUMBIA BASIN PROJECT, WASHINGTON.

THE SPECIFICATION WAS ISSUED ON OCTOBER 20, 1966, BY THE BUREAU OF RECLAMATION, INVITING BIDS FOR CONCRETE LINING OF THE POTHOLES CANAL ENLARGEMENT AT THE COLUMBIA BASIN PROJECT IN FRANKLIN COUNTY, WASHINGTON. BID OPENING WAS STATED TO BE 10 A.M., NOVEMBER 22, 1966. THE BIDDING SCHEDULE IN THE INVITATION ORIGINALLY CONTAINED TWELVE SEPARATE ITEMS OF WORK AND MATERIALS, WITH QUANTITIES AND UNITS SPECIFIED AND REQUIRING ENTRIES OF UNIT PRICES AND EXTENDED AMOUNTS. THEREAFTER, ON NOVEMBER 2, 1966, SUPPLEMENTAL NOTICE NO. 1 WAS ISSUED WHEREUNDER PAGE B OF THE ORIGINAL SCHEDULE, WHICH CONTAINED ITEMS NOS 7 TO 12 INCLUSIVE, WAS DELETED IN ITS ENTIRETY AND A NEW AND REVISED PAGE B SUBSTITUTED. THE REVISED PAGE B ADDED TO THE ORIGINAL TWELVE ITEMS A THIRTEENTH ITEM WHICH CALLED FOR A LUMP-SUM PRICE FOR "MODIFICATION OF EXISTING CULVERT INLET TRANSITION.' THIS SUPPLEMENTAL NOTICE ADVISED BIDDERS THAT ALL ATTACHMENTS--- INCLUDING THE NEW AND REVISED PAGE B--- WERE REQUIRED TO BE RETURNED WITH THE SIGNED SUPPLEMENTAL NOTICE. IT FURTHER PROVIDED THAT FAILURE TO ACKNOWLEDGE OR RETURN THE NOTICE MAY RESULT IN BID REJECTION. BIDDERS WERE ALSO CAUTIONED BY THE SUPPLEMENTAL NOTICE TO SUBMIT THEIR BIDS ON SCHEDULE PAGE A AND SCHEDULE PAGE B (REVISED). THE FIRST PARAGRAPH ON SCHEDULE PAGE A STATES THAT,"BIDS WILL BE CONSIDERED ON THE FOLLOWING SCHEDULE BUT NO BID WILL BE CONSIDERED FOR ONLY A PART OF THE EDULE.'

FIVE BIDS WERE RECEIVED IN THE AMOUNTS OF $64,720; $68,527.30; $79,716; $87,710; AND $96,590. THE GOVERNMENT'S ESTIMATE WAS $80,620. WHILE YOUR BID WAS THE APPARENT LOW BID RECEIVED, IT DID NOT CONTAIN A PRICE FOR ITEM 13 ALTHOUGH RECEIPT OF THE SUPPLEMENTAL NOTICE WAS ACKNOWLEDGED BY YOU ON NOVEMBER 21, 1966, AND WAS ENCLOSED WITH YOUR BID. SINCE YOUR BID DID NOT COVER THE ENTIRE WORK AS ADVERTISED, IT WAS DETERMINED BY THE ADMINISTRATIVE OFFICE TO BE NONRESPONSIVE TO THE INVITATION AS AMENDED AND, AS SUCH, COULD NOT BE CONSIDERED FOR AWARD.

YOUR BID, AS FILED, CONTAINED THE ORIGINAL PAGE B OF THE BIDDING SCHEDULE AND NOT THE SUBSTITUTED PAGE B (REVISED) REFERRED TO IN THE SUPPLEMENTAL NOTICE. THUS, YOUR BID AS RECEIVED BY THE CONTRACTING AGENCY CONTAINED ENTRIES AND ITEM PRICES FOR TWELVE ITEMS ONLY, AS IN ORIGINAL PAGE B, BUT NO LUMP-SUM BID WAS SUBMITTED FOR ITEM NO. 13 AS REQUIRED. ALSO, YOUR TOTAL BID AMOUNT OF $66,020 WAS NOT THE CORRECT TOTAL OF THE TWELVE ITEMS BID, THE CORRECT TOTAL THEREOF BEING $64,720, A DIFFERENCE OF $1,300. YOUR BID AS IT RELATED TO THE SUPPLEMENTAL NOTICE DID NOT CONTAIN ANY INFORMATION OR DETAIL AS TO ITEM NO. 13. BY LETTER OF DECEMBER 1, 1966, THE AGENCY ADVISED YOU OF YOUR FAILURE TO SUBMIT A PRICE QUOTATION FOR ITEM NO. 13 AND ADVISED THAT YOUR BID WAS NONRESPONSIVE. YOU RESPONDED BY REQUESTING A CORRECTION OF YOUR BID, CONTENDING THAT:

(A) YOUR TOTAL BID FOR THE ENTIRE PROJECT, ITEMS NOS. 1-13, WAS $66,020;

(B) THAT SUCH AMOUNT WAS ARRIVED AT "BY INCLUSION OF $64,720 FOR ACCOMPLISHMENT OF ITEMS 1 THROUGH 12 AND $1,300 FOR ACCOMPLISHMENT OF BID ITEM 13; "

(C) THAT SCHEDULE PAGE B (REVISED) WAS NOT ATTACHED TO SUPPLEMENTAL NOTICE NO. 1 WHEN RECEIVED BY YOU, FOR WHICH REASON THE BID UNDER REVIEW USED THE ORIGINAL PAGE B AND DID NOT SEPARATELY LIST ITEM NO. 13 "ALTHOUGH (IT) WAS TAKEN INTO ACCOUNT AT THE ARRIVING OF THE TOTAL BID OF ,020.'

YOU CONTEND THAT YOUR FAILURE TO USE PAGE B (REVISED) WAS INADVERTENT BUT THAT HAVING RETURNED THE SUPPLEMENTAL NOTICE WITH YOUR BID, THE BID SHOULD NOT BE CONSIDERED NONRESPONSIVE. YOU REQUEST FAVORABLE CONSIDERATION OF YOUR BID AS SUBMITTED FOR $66,020, WITH THE UNDERSTANDING THAT ITEM NO. 13 WILL BE CONSIDERED AS INCLUDED, OR IN THE ALTERNATIVE, THAT YOUR BID AS CORRECTED TO $64,720 BE CONSIDERED FOR AWARD UPON THE UNDERSTANDING THAT ITEM NO. 13 WILL BE INCLUDED IN THE WORK TO BE COMPLETED UNDER THE BID.

YOUR ALLEGATION OF ERROR BY INADVERTENCE IN FAILING TO SUBMIT A PRICE FOR ITEM NO. 13 MUST BE REJECTED INASMUCH AS NONRESPONSIVE BIDS ARE GENERALLY THE RESULT OF INEXACTNESS IN THE PREPARATION OR SUBMISSION OF BID DOCUMENTS. 38 COMP. GEN. 819. TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE TO AN INVITATION BY ALTERATION OR ADDITIONS IS TANTAMOUNT TO PERMITTING THE SUBMISSION OF A NEW OFFER OR TO GETTING "TWO BITES AT THE APPLE" TO THE PREJUDICE OF COMPETING BIDDERS. THEREFORE, SUCH ALLEGATIONS OF ERROR ARE PROPERLY FOR CONSIDERATION FOR CORRECTION ONLY IN THOSE CASES WHERE BIDS ARE OTHERWISE RESPONSIVE TO THE INVITATION AND OTHERWISE PROPER FOR ACCEPTANCE. 40 COMP. GEN. 432.

TO PERMIT A BIDDER TO CORRECT SUCH BID WOULD BE TO GIVE AN OPTION AFTER OPENING TO BECOME ELIGIBLE OR INELIGIBLE FOR AWARD CONTRARY TO THE PURPOSES OF THE STATUTORY ADVERTISING REQUIREMENTS. 40 COMP. GEN. 668.

YOUR CONTENTIONS THAT YOUR TOTAL BID FOR THE ENTIRE PROJECT, ITEMS NOS. 1 -13, WAS $66,020, AND THAT THE DIFFERENCE BETWEEN THE SUM OF YOUR BID PRICES FOR ITEMS 1-12 AND $66,020, OR $1,300, WAS INTENDED TO COVER ITEM 13, APPEAR UNTENABLE SINCE YOUR BID CONTAINED NOTHING WHICH WOULD AFFORD A BASIS FOR DETERMINING WHETHER YOUR TOTAL BID PRICE NECESSARILY WAS INCLUSIVE OF ITEM 13. WHETHER THE SUM OF $1,300 INCLUDED IN THE BID PRICE OF $66,020 WAS INTENDED TO COVER ITEM 13 OR MERELY RESULTED FROM AN ERROR IN ADDITION IS IMPOSSIBLE TO DETERMINE FROM YOUR BID OR THE RECORD. THEREFORE, YOUR BID WAS NONRESPONSIVE TO THE REQUIREMENTS CONTAINED IN SUPPLEMENTAL NOTICE NO. 1. SINCE YOUR BID DID NOT COMPLY WITH THE ADVERTISED REQUIREMENTS, IT MAY NOT BE CONSIDERED AS INCLUSIVE OF THE ENTIRE WORK AS ADVERTISED AND MAY NOT NOW BE CLARIFIED TO COVER THE WORK EXCLUDED FROM YOUR BID. CF. 43 COMP. GEN. 579.