B-177099, FEB 7, 1973

B-177099, FEB 7, 1973

CONTRACT - RECISSION - INCONSISTENT BID DOCUMENTS DECISION CONCERNING A REQUEST FOR RECISSION OF A CONTRACT AWARDED TO TOP BUILDERS, INC. UNDER AN IFB ISSUED BY THE PROCUREMENT DIVISION, HUNTER ARMY AIRFIELD, GA. IN VIEW OF THE INCONSISTENCIES OF THE BID DOCUMENTS, AND THE BIDDER'S PREPARATION OF PRICE BASED ON A MISTAKEN DESCRIPTION OF THE PARKING LOT FENCE, THE COMP. GEN. AGREES THAT CONTRACT RECISSION WOULD BE PROPER.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER SAOASI&L)-MO, DATED NOVEMBER 22, 1972, FROM THE ASSISTANT DEPUTY FOR MATERIEL ACQUISITION, CONCERNING THE REQUEST FOR RECISION OF A CONTRACT AWARDED TO TOP BUILDERS, INCORPORATED, UNDER INVITATION FOR BIDS DABC-13-72-B-0101, ISSUED APRIL 28, 1972, BY THE PROCUREMENT DIVISION, HUNTER ARMY AIRFIELD, GEORGIA.

THREE BIDS WERE OPENED ON MAY 30, 1972, WITH TOP BEING THE LOW BIDDER. DUE TO THE LARGE DIFFERENCE BETWEEN THE LOW BID ($1,687) AND BOTH THE GOVERNMENT ESTIMATE ($3,964.80) AND NEXT LOWEST BID ($2,950), TOP WAS ASKED TO VERIFY ITS BID. TOP VERIFIED ITS PRICE OF $1,687 AND BY LETTER DATED JUNE 12, 1972, WAS AWARDED A CONTRACT. ON JUNE 26, 1972, THE PROCURING ACTIVITY HELD A POST AWARD CONFERENCE WITH TOP AT WHICH TIME THE CONTRACTOR DISCOVERED THAT THE GOVERNMENT REQUIREMENT WAS FOR A 960 LINEAR FOOT FENCE.

TOP CONTENDS THAT THE BID DOCUMENTS WHICH IT RECEIVED FROM THE GOVERNMENT SPECIFIED A 70 LINEAR FOOT FENCE AND THAT ITS BID WAS ONLY FOR THIS SIZE FENCE. TOP NOTES THAT ON THE "BID FORM" (STANDARD FORM 21), THE PROJECT WAS DESCRIBED AS A "70'0" CHAIN LINK FENCE," AND THAT THE SCHEDULE OF DRAWINGS LISTED THE APPLICABLE DRAWING (BA-1343) AS CONSISTING OF ONLY "SHEET 1 OF 1." IN THIS REGARD TOP ALLEGES THAT THE ONLY DRAWING IT RECEIVED CONTAINED DETAILS FOR FENCE FASTENINGS AND GATES BUT DID NOT HAVE LINEAR DIMENSIONS LISTED AND THUS, IT WAS NOT AWARE THAT THE PROCURING ACTIVITY REQUIRED A 960 LINEAR FOOT FENCE. TOP STATES THAT IT DID NOT RECEIVE A SECOND DRAWING (SHEET 1 OF 2) WHICH CONTAINED THE 960 LINEAR FOOT DESCRIPTION OF THE SUBJECT FENCE, AND THAT THE BID VERIFICATION WAS GIVEN ON THE BASIS OF FURNISHING A 70 LINEAR FOOT FENCE.

THE PROCURING ACTIVITY ACKNOWLEDGES THAT THE IFB DOCUMENTS CONTAINED TWO ERRORS WHICH MIGHT HAVE LED TOP TO BELIEVE THAT ONLY A 70 LINEAR FOOT FENCE WAS REQUIRED. IT IS REPORTED THAT THE 70'0" FIGURE LISTED ON THE "BID FORM" NOTED ABOVE SHOULD HAVE READ 7'0", AND THAT THE SCHEDULE OF DRAWINGS NOTED ABOVE SHOULD HAVE DESCRIBED DRAWING BA-1343 AS CONTAINING "SHEET 2 OF 2" INSTEAD OF "SHEET 1 OF 1." ON THE OTHER HAND, IT IS REPORTED THAT THE 7'0" DIMENSION IS USED ON FORM 20 IN THE BID PRICE SCHEDULE, AND THAT PARAGRAPH 1.2 OF THE TECHNICAL PROVISIONS STATES, "INSTALL 7' CHAIN LINK FENCE COMPLETELY AROUND NEW PARKING AREA SHOWN ON DRAWING BA-1343 ***." FURTHER, IT IS POINTED OUT THAT THE MEASUREMENT OF 7'0" IS USED (IN CONNECTION WITH HEIGHT) ON THE DRAWING (SHEET 2 OF 2) WHICH THE CONTRACTOR ADMITS IT RECEIVED, AND THAT AS A PRACTICAL MATTER IT IS INCONCEIVABLE TO IMAGINE THAT A 70 FOOT LENGTH FENCE WOULD ENCLOSE A PARKING AREA. NEVERTHELESS, WHILE THE PROCURING ACTIVITY REPORTS THAT IT CAN NEITHER CONFIRM NOR DENY THE ALLEGATION BY TOP THAT IT DID NOT RECEIVE THE DRAWING WITH THE ACTUAL LINEAR DIMENSIONS, IT RECOMMENDS THAT THE CONTRACT BE RESCINDED. BY LETTER DATED NOVEMBER 30, 1972, TOP HAS AGREED TO THIS RECOMMENDATION.

IT APPEARS THAT THE CONTRACTOR'S BID PRICE WAS PREPARED ON THE BASIS OF FURNISHING A 70 LINEAR FOOT FENCE, WHEREAS THE PROCURING ACTIVITY REQUIRED A 960 LINEAR FOOT FENCE. UNDER THOSE CIRCUMSTANCES AND IN VIEW OF THE INCONSISTENCIES IN THE BID DOCUMENTS, WE BELIEVE THAT CONTRACT RESCISSION AS PROPOSED WOULD BE PROPER. B-175613, JUNE 1, 1972.