B-182120, DEC 5, 1974

B-182120, DEC 5, 1974

PROTEST AGAINST BID CORRECTION IS ACADEMIC AND NOT FOR FURTHER CONSIDERATION BECAUSE DAVIS-BACON WAGE RATE DETERMINATION INCLUDED IN INVITATION WAS SUPERSEDED AFTER BID OPENING AND PRIOR TO AWARD AND ANY AWARD UNDER INVITATION CONTAINING EXPIRED WAGE RATE DETERMINATION WOULD VIOLATE COMPETITIVE BIDDING RULES.

UNIVERSITY MECHANICAL CONTRACTORS, INC.:

ON MAY 24, 1974, IFB 663-68C-74, WAS ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, SEATTLE, WASHINGTON, (VA) FOR SITE PREPARATION, INCLUDING DEMOLITION AND REMOVAL OF EXISTING MATERIAL, AND FURNISHING OF LABOR, MATERIALS AND WORK FOR A BOILER PLANT CONVERSION AT THE SEATTLE VA HOSPITAL. ON JULY 17, 1974, OPENING DATE, THE FOLLOWING BIDS WERE OPENED:

WILLARD SMITH, INC. (SMITH) $324,500.00

UNIVERSITY MECHANICAL 493,860.00

IMCO CORPORATION 572,401.00

THE FOLLOWING DAY, PRIOR TO CONTRACT AWARD, A REPRESENTATIVE OF SMITH CALLED THE CONTRACTING OFFICER AND ADVISED HIM THAT AN ERROR OF APPROXIMATELY $110,000 HAD BEEN MADE IN SMITH'S BID. THIS WAS CONFIRMED BY LETTER OF JULY 19, 1974. ON AUGUST 5, 1974, SMITH SUBMITTED COPIES OF ITS ORIGINAL WORKSHEETS, WHICH SMITH CONTENDS INDICATES THAT ITEMS TOTALING $107,218 HAD BEEN OMITTED AND THAT A BID OF $433,400 HAD BEEN INTENDED. THE CONTRACTING OFFICER IS OF THE OPINION THAT THE EVIDENCE SUBMITTED BY SMITH IS CLEAR AND CONVINCING AS TO THE EXISTENCE OF A MISTAKE AND AS TO THE BID ACTUALLY INTENDED AND, THEREFORE, RECOMMENDS ALLOWING CORRECTION.

PRIOR TO VA'S REACHING A DETERMINATION AS TO THE VALIDITY OF SMITH'S CLAIM OF MISTAKE, UNIVERSITY MECHANICAL CONTRACTORS, INC. (UNIVERSITY), PROTESTED BY LETTER DATED AUGUST 16, 1974, AGAINST CORRECTION OF SMITH'S BID.

BY LETTER DATED NOVEMBER 15, 1974, WE WERE INFORMED BY THE VA THAT ON SEPTEMBER 27, 1974, THE WAGE RATE DETERMINATION UNDER THE DAVIS-BACON ACT, 40 U.S.C. 276A, INCLUDED IN THE SUBJECT INVITATION WAS SUPERSEDED, AND NO EXTENSION THEREOF HAS BEEN GRANTED BY THE DEPARTMENT OF LABOR. FURTHERMORE, IT IS THE VA'S VIEW THAT IT IS UNLIKELY THAT AN EXTENSION WOULD BE GRANTED AT THIS TIME. EXPIRATION OF THE WAGE RATE DETERMINATION APPLICABLE TO THIS PROCUREMENT HAS THE PRACTICAL EFFECT OF RENDERING UNIVERSITY'S CONTENTIONS AND SMITH'S CLAIM OF MISTAKE ACADEMIC. IN THIS CONNECTION, SEE 41 COMP. GEN. 593 (1962), WHEREIN WE HELD THAT AN AWARD UNDER AN INVITATION CONTAINING EXPIRED DAVIS-BACON ACT WAGE RATE DETERMINATIONS VIOLATES THE RULES OF COMPETITIVE BIDDING AND THAT BIDS RECEIVED UNDER THE INVITATION SHOULD BE REJECTED AND THE PROCUREMENT READVERTISED. SEE 45 COMP. GEN. 325 (1965); B-162944, DECEMBER 8, 1967.

SINCE AN AWARD MAY NO LINGER BE MADE UNDER THE SUBJECT INVITATION NO FURTHER ACTION IS CONTEMPLATED BY OUR OFFICE IN THE MATTER.