B-134908, FEB. 3, 1958

B-134908, FEB. 3, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 15, 1958 WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION WITH RESPECT TO A MISTAKE IN BID ALLEGED BY THE PATHMAN CONSTRUCTION COMPANY, PRIOR TO THE AWARD OF CONTRACT NO. DA-11 032-ENG- 4943.

THE BID WAS SUBMITTED ON FEBRUARY 26, 1957, PURSUANT TO INVITATION NO. ENG-11-032-57-57, ISSUED BY THE CHICAGO DISTRICT, CORPS OF ENGINEERS, U.S. ARMY, REQUESTING BIDS FOR THE CONSTRUCTION OF ARMY FAMILY HOUSING AT SITES C-51, C-61, AND C-72, IN THE CHICAGO DEFENSE AREA. BIDS WERE OPENED ON MARCH 28, 1957, AND THE BID OF THE PATHMAN CONSTRUCTION COMPANY, WAS ACCEPTED ON APRIL 2, 1957, IN THE TOTAL AMOUNT OF $590,745.

ON THE DATE BIDS WERE OPENED, MR. PATHMAN, PRESIDENT OF PATHMAN CONSTRUCTION COMPANY, STATED THAT HE HAD MISINTERPRETED THE BIDDING DOCUMENTS IN THAT THE AMOUNT OF $2,561 FOR "CURBS AND GUTTERS" HAD NOT BEEN INCLUDED IN ITEM 2 OF SCHEDULE C, SITE C-72.

THE ERROR IN THE BID AROSE IN THE FOLLOWING MANNER. AS ORIGINALLY ISSUED THE INVITATION PROVIDED THAT PRICES FOR "CURBS AND GUTTERS" BE INCLUDED AS AN ADDITIVE ALTERNATE FOR ALL THREE OF THE BUILDING SITES. A REVISED BID SCHEDULE WAS INCLUDED WITH ADDENDUM 2. ON THE BID FORM AS REVISED, THE WORDS "CURBS AND GUTTERS" WERE INCLUDED IN THE DESCRIPTION OF WORK UNDER ITEM 2, SCHEDULE C (SITE C-72). IN THIS RESPECT, IT DIFFERED FROM ITEM 2, SCHEDULE A (SITE C-51) AND ITEM 2, SCHEDULE B (SITE C-61) IN THAT THE WORDS "CURBS AND GUTTERS" WERE NOT INCLUDED IN A DESCRIPTION OF WORK UNDER THOSE ITEMS, BUT WERE STILL THE SUBJECT OF AN ADDITIVE ALTERNATE.

ADDENDUM NO. 2, ALSO CONTAINED A LIST ENTITLED "ADDITIVE AND DEDUCTIVE ALTERNATES.' TWO OF THE EIGHT ALTERNATES WERE DESCRIBED AS FOLLOWS:

" "ALTERNATE 3.--- CONSTRUCTION OF CURBS AND GUTTERS AS SHOWN ON SITE PLANS.

" "ALTERNATE 6.--- SUBSTITUTION OF BRICK VENEER FACING FOR TYPES OF EXTERIOR WALL FINISH PERMITTED BY THE TECHNICAL SPECIFICATIONS AND SUBSTITUTION OF A FOUNDATION WALL OF NOT LESS THAN 10-INCH THICKNESS FOR THAT SHOWN ON THE DRAWINGS, (SITE C-51 EXCEPTED).'"

THUS, NO EXCEPTION WAS NOTED UNDER "ALTERNATE 3" FOR SITE C-72, AS WAS DONE WITH RESPECT TO SITE C-51 UNDER "ALTERNATE 6.'

ON APRIL 1, 1957, MR. PATHMAN WAS ADVISED THAT "CURBS AND GUTTERS" WERE DEFINITELY INCLUDED IN ITEM 2 OF SCHEDULE C (SITE C-72), AND THAT NO CONSIDERATION WOULD BE GIVEN TO HIS REQUEST FOR ADDITIONAL COMPENSATION FOR THIS ITEM.

THE CONTRACT WAS AWARDED TO PATHMAN CONSTRUCTION COMPANY ON APRIL 2, 1957, ON THE BID AS SUBMITTED. ON APRIL 17, 1957, PATHMAN CONSTRUCTION COMPANY RETURNED THE SIGNED CONTRACT WITH THE FOLLOWING COMMENTS:

"WE REFER TO ADDITIVE ALTERNATE NO. 3 THERETO WHICH IS DESCRIBED ON THE BID FORM (SHEET B-6) AS "CONSTRUCTION OF CURBS AND GUTTERS AS SHOWN ON SITE PLANS.' THIS WAS TAKEN TO MEAN ALL SITE PLANS AND WE THEREFORE QUOTED PRICES ON SHEET B-7 OF THE BID FOR CURBS AND GUTTERS FOR EACH SITE C-51, C-61 AND C-72 AND INCLUDED NO CURBS AND GUTTERS IN THE BASE BID FOR EACH SITE.

"WE NOTED THAT IN THE DESCRIPTION OF ALTERNATE NO. 6 (ON SHEET B-6) THAT SITE C-51 IS EXCEPTED SPECIFICALLY. NO SUCH EXCEPTION WAS LISTED UNDER ALTERNATE NO. 3 AND ACCORDINGLY WE QUOTED A PRICE OF $2,561.00 FOR CURBS AND GUTTERS AT SITE C-72 UNDER THE BIDS FOR ALTERNATE NO. 3.

"IT WAS NOT UNTIL AFTER THE BID OPENING, THAT IT WAS CALLED TO OUR ATTENTION THAT THE WORDS ,CURBS AND GUTTERS" IS MENTIONED IN SCHEDULE C, ITEM 2 FOR SITE C-72.

"AS A CONSEQUENCE, DUE TO THIS DISCREPANCY, WE HAVE NO COST ALLOWANCE IN THE CONTRACT PRICE, AS AWARDED, FOR CURBS AND GUTTERS AT SITE C-72.

"IN ORDER TO NOT CAUSE ANY DELAY, WE HAVE SIGNED THE CONTRACT. HOWEVER, WE WOULD APPRECIATE YOUR CONSIDERATION OF THIS MATTER WITH A VIEW TOWARDS ADDING THE AMOUNT OF $2,561.00 TO OUR CONTRACT BY SEPARATE HANDLING TO COMPENSATE US FOR THE CURBS AND GUTTERS AT SITE C-72, WHICH WAS NOT CONTEMPLATED IN THE BASE BID.'

IT IS ADMITTED IN THE ADMINISTRATIVE REPORT THAT THE BID FORM WAS CONFUSING AND THAT IT EITHER INDUCED OR CONTRIBUTED TO MR. PATHMAN'S MISUNDERSTANDING. IN THE DESCRIPTION OF ADDITIVES, BIDDERS WERE SPECIFICALLY INFORMED WITH RESPECT TO ALTERNATE 6, THAT SITE C-51 WAS EXCEPTED. IN LIKE MANNER, IT SHOULD HAVE BEEN SHOWN THAT, WITH RESPECT TO ALTERNATE 3, SITE C-72 WAS EXCEPTED.

ALTHOUGH THE COMPANY PROBABLY SHOULD HAVE REQUESTED A CLARIFICATION OF THE BASIS ON WHICH BID PRICES WERE TO BE SUBMITTED, IT APPEARS THAT THE GOVERNMENT WAS PARTLY AT FAULT IN THE MATTER IN NOT CLEARLY STATING SUCH BASIS. FURTHERMORE, IT WOULD APPEAR THAT ANY AMBIGUITY EXISTING AS A RESULT OF THE FAILURE OF THE GOVERNMENT TO EXCEPT ALTERNATE 3--- "CONSTRUCTION OF CURBS AND GUTTERS"--- AS TO SITE C-72, WAS CORRECTED BY THE FACT THAT THE BIDDER ENTERED THE AMOUNT OF $2,561 UNDER ADDITIVE ALTERNATE NO. 3 FOR SITE C-72, INDICATING THEREBY THAT THIS AMOUNT HAD NOT BEEN INCLUDED UNDER ITEM 2 OF SCHEDULE C, SITE C 72.

A REVIEW OF THE CERTIFIED COPY OF THE CONTRACTOR'S ESTIMATE SHEET, SUBMITTED JUNE 3, 1957, FOR ITEM NO. 2, SCHEDULE C, SITE C-72, FURTHER SUBSTANTIATES THE CONTRACTOR'S CLAIM THAT THE COST OF CONSTRUCTION OF "CURBS AND GUTTERS" FOR SITE C-72 WAS NOT INCLUDED IN THE GENERAL SUMMARY FOR ,SITE IMPROVEMENTS" AS A PART OF THE BASE BID. THE CONTRACTOR'S BID SHOWED AN AMOUNT FOR ALTERNATE NO. 3 FOR EACH OF THE THREE SITES. THESE AMOUNTS WERE PART OF THE BID AND SHOULD NOT HAVE BEEN DISREGARDED IN MAKING THE AWARD.

THE BASE BID OF THE PATHMAN CONSTRUCTION COMPANY FOR ITEM 2, SITE C 72 WAS $41,667, AS COMPARED WITH OTHER BIDS OF $67,959 AND $75,050, AND THE GOVERNMENT'S ESTIMATE OF $69,023. THE BID, THEREFORE, IS STILL CONSIDERABLY LOWER THAN THE OTHER BIDS WITH THE ADDITION THERETO OF THE AMOUNT OF $2,561.

ACCORDINGLY, SINCE THE ERROR WAS ALLEGED PRIOR TO AWARD AND HAS BEEN SATISFACTORILY EXPLAINED, THE CONTRACT PRICE OF ITEM 2 SCHEDULE C, SITE C- 72, MAY BE CHANGED TO $44,228, TO INCLUDE THE AMOUNT OF $2,561 AS THE COST OF INSTALLING "CURBS AND GUTTERS.'