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B-145109, MAR. 10, 1961

B-145109 Mar 10, 1961
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TO THE SECRETARY OF THE AIR FORCE: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 17. TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 30 635-61-95. BY THE CITED INVITATION BIDS WERE REQUESTED FOR FURNISHING AND INSTALLING A CABLE COMMUNICATION SYSTEM FOR THE MALMSTROM MISSILE WING. IT WAS REPORTED THAT EIGHT BIDS WERE RECEIVED AND OPENED ON FEBRUARY 2. THE NEXT LOWEST BID WAS SUBMITTED BY THE BECHTEL CORPORATION. IT WAS REPORTED FURTHER THAT SINCE THE LOWEST BID WAS APPROXIMATELY 42 PERCENT LOWER THAN THE NEXT LOWEST BID AND OBVIOUSLY OUT OF LINE WITH THE OTHER BIDS. THE LOW BIDDER EXPRESSED A PREFERENCE TO HAVE ITS BID MODIFIED RATHER THAN WITHDRAWN AND. IT WAS POINTED OUT IN THE LETTER OF FEBRUARY 17.

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B-145109, MAR. 10, 1961

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 17, 1961, WITH ENCLOSURES, FROM MR. AARON J. RACUSIN, DEPUTY FOR PROCUREMENT AND PRODUCTION, DEPARTMENT OF THE AIR FORCE, REQUESTING OUR DECISION RESPECTING THE ACTION TO BE TAKEN IN CONNECTION WITH A MISTAKE ALLEGED BY ETS-HOKIN AND GALVAN, INC., SAN DIEGO, CALIFORNIA, TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. 30 635-61-95, ISSUED BY THE ROME AIR MATERIAL AREA, GRIFFISS AIR FORCE BASE, NEW YORK, UNDER DATE OF JANUARY 11, 1961.

BY THE CITED INVITATION BIDS WERE REQUESTED FOR FURNISHING AND INSTALLING A CABLE COMMUNICATION SYSTEM FOR THE MALMSTROM MISSILE WING, MALSMSTROM AIR FORCE BASE, MONTANA. IT WAS REPORTED THAT EIGHT BIDS WERE RECEIVED AND OPENED ON FEBRUARY 2, 1961, THE LOWEST BEING THAT SUBMITTED BY ETS- HOKIN AND GALVAN, INC., AT THE PRICE OF $4,947,707. THE NEXT LOWEST BID WAS SUBMITTED BY THE BECHTEL CORPORATION, SAN FRANCISCO, CALIFORNIA, AT THE PRICE OF $8,508,300. THE REMAINING SIX BIDS RANGED FROM $9,911,000 TO $16,980,000.

IT WAS REPORTED FURTHER THAT SINCE THE LOWEST BID WAS APPROXIMATELY 42 PERCENT LOWER THAN THE NEXT LOWEST BID AND OBVIOUSLY OUT OF LINE WITH THE OTHER BIDS, THE CONTRACTING OFFICER REQUESTED VERIFICATION. BY LETTER DATED FEBRUARY 6, 1961, THE LOW BIDDER ALLEGED ERROR IN THE PREPARATION OF ITS BID, IT BEING STATED THAT IN ARRIVING AT A TOTAL OF 1,714 AS THE ROUTE MILEAGE OF THE CABLE TO BE INSTALLED, IT FAILED TO INCLUDE THEREIN 285 MILES BECAUSE OF AN ERROR MADE BY THE OPERATOR OF THE ADDING MACHINE USED IN MAKING THE BID COMPUTATION; ALSO, THE LOW BIDDER ALLEGED THAT AN ADDITIONAL 5 PERCENT SHOULD BE ADDED TO THE 285 MILES FOR TERRAIN AND CONTINGENCY FACTORS, MAKING A TOTAL MILEAGE OF 299 MILES OMITTED THROUGH ERROR. THEREAFTER, THE LOW BIDDER SUBMITTED WORKSHEETS TO ESTABLISH THE EXISTENCE OF THE ALLEGED MISTAKE AS WELL AS THE AMOUNT OF THE INTENDED BID AND REQUESTED THAT IT BE ALLOWED TO WITHDRAW OR MODIFY ITS BID.

IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-406.3 OF THE ARMED SERVICES PROCUREMENT REGULATION AND THE CORRESPONDING PROVISION IN THE AIR FORCE PROCUREMENT INSTRUCTIONS, THE CONTRACTING OFFICER SUBMITTED THE REQUEST OF THE LOW BIDDER TO THE STAFF JUDGE ADVOCATE, HEADQUARTERS, AIR MATERIAL COMMAND, FOR A DECISION. UPON CONSIDERATION OF THE EVIDENCE PERTINENT TO THE REQUEST, INCLUDING THE INFORMATION AND WORKSHEETS SUBMITTED BY THE BIDDER, THE STAFF JUDGE ADVOCATE MADE A DETERMINATION UNDER DATE OF FEBRUARY 7, 1961, IN ACCORDANCE WITH ASPR 2-406.3 (A) (1), TO THE EFFECT THAT THE LOW BIDDER HAD SUBMITTED CLEAR AND CONVINCING EVIDENCE SHOWING THAT A BONA FIDE MISTAKE IN BID HAD BEEN MADE, AND THAT THE LOW BIDDER SHOULD BE PERMITTED TO WITHDRAW THE BID FROM CONSIDERATION FOR AWARD. SUBSEQUENT TO THE ADMINISTRATIVE DETERMINATION, THE LOW BIDDER EXPRESSED A PREFERENCE TO HAVE ITS BID MODIFIED RATHER THAN WITHDRAWN AND, AS MODIFIED, CONSIDERED FOR AWARD.

IT WAS POINTED OUT IN THE LETTER OF FEBRUARY 17, 1961, THAT THE WORKSHEETS SUBMITTED BY THE BIDDER PURPORT TO SHOW THAT THE BIDDER'S MISTAKE IN COMPUTATION RESULTED IN AN UNDERSTATEMENT OF THE BID PRICE BY THE SUM OF $1,709,024.61; THAT THE REQUESTED CORRECTION OF THE BID WOULD BRING THE BID PRICE UP TO THE SUM OF $6,656,731.61, BUT THAT THE INCREASED BID WOULD STILL BE $1,851,568.39 LOWER THAN THE NEXT LOWEST BID.

THERE WAS TRANSMITTED WITH THE LETTER OF FEBRUARY 17, 1961, A COPY OF A SUPPLEMENTAL MEMORANDUM DATED FEBRUARY 15, 1961, PREPARED IN THE OFFICE OF THE STAFF JUDGE ADVOCATE, HEADQUARTERS, AIR MATERIAL COMMAND, SHOWING THAT THE STAFF JUDGE ADVOCATE CONSIDERED THE POSSIBILITY OF MODIFICATION OF THE BID WHEN HE MADE THE DETERMINATION OF FEBRUARY 7, 1961, AND HE CONCLUDED THAT THE EVIDENCE IN THE CASE DID NOT ESTABLISH CLEARLY AND CONVINCINGLY WHAT THE INTENDED BID WAS. HE THEREFORE AUTHORIZED THE WITHDRAWAL, BUT NOT THE MODIFICATION OF THE BID. YOUR DEPARTMENT EXPRESSED THE VIEW THAT THE FACTS AND CIRCUMSTANCES IN THIS CASE DO NOT JUSTIFY MODIFICATION OF THE LOW BID AS REQUESTED BY THE BIDDER AND SUBSEQUENT AWARD OF A CONTRACT ON THE BASIS OF THE BID AS MODIFIED. ONE OF THE CONDITIONS WHICH HAS BEEN CONSIDERED A PREREQUISITE TO CORRECTION OF ERROR IN AN ADVERTISED BID IS CLEAR AND CONVINCING PROOF OF THE "INTENDED" BID. IN OTHER WORDS, IT HAS BEEN CONSIDERED ESSENTIAL THAT THE EVIDENCE SUBMITTED WITH RESPECT TO THE ERRONEOUS BID DEMONSTRATE BEYOND DOUBT WHAT THAT BID WOULD HAVE BEEN IF THE ERROR HAD NOT OCCURRED. ON THE OTHER HAND, WE HAVE OFTEN HELD THAT A BID MAY NOT BE RECALCULATED AS A PART OF THE PROCESS OF CORRECTING AN ALLEGED ERROR. IT MUST BE CLEAR BEYOND DOUBT WHAT THE BID WOULD HAVE BEEN BUT FOR THE ERROR, AND THIS RESULT MUST BE DEMONSTRABLE ON THE BASIS OF EVIDENCE IN EXISTENCE PRIOR TO BID OPENING. IN MOST CASES INVOLVING SERVICES TO BE PERFORMED IN WHICH THE ERROR CONSISTS OF A FAILURE TO CONSIDER SOME ELEMENT OF THE WORK CALLED FOR, IT CANNOT BE SHOWN WITH CERTAINTY WHAT ADDITIONAL AMOUNT WOULD HAVE BEEN INCLUDED IN THE BID ON ACCOUNT OF THE OMITTED WORK. ONE EXCEPTION TO THIS MAY EXIST IN A SITUATION WHERE THE MISTAKE CONSISTS OF THE OMISSION OF ONLY A PART OF CERTAIN WORK, AND WHERE OTHER IDENTICAL WORK HAS BEEN CONSIDERED IN ARRIVING AT THE ERRONEOUS BID. IN SUCH CASE IT IS USUALLY, THOUGH NOT INVARIABLY, REASONABLE TO ASSUME THAT THE PRICE FOR THE OMITTED WORK WOULD HAVE BEEN COMPUTED ON THE SAME BASIS AS THE IDENTICAL WORK WHICH ACTUALLY WAS INCLUDED IN THE BID.

THE PRESENT CASE INVOLVES THIS TYPE OF ERROR. THE MOST IMPORTANT ELEMENT OF THE WORK IS THE DISTANCE OF TRENCH WHICH MUST BE DUG FOR CABLE INSTALLATION. THE COST OF TRENCHING WILL, OF COURSE, VARY DEPENDING ON FACTORS SUCH AS SOIL CONDITION, CROSSINGS, ETC. AN ESSENTIAL STEP IN ESTIMATING THE COST OF THE JOB, THEREFORE, IS TO ARRIVE AT AN ESTIMATE OF THE MILEAGE OF THE TRENCHING TO BE DONE AND THE TRENCHING CONDITIONS. THE LOW BIDDER PREPARED WORKSHEETS WITH A COLUMN HEADED "BOOK MILEAGE" SHOWING THE MILEAGE FOR EACH OF THE NEARLY 500 SEGMENTS OF THE CABLE ROUTE BETWEEN DESIGNATED POINTS ON MAPS FURNISHED WITH THE REQUEST FOR PROPOSALS. THE FIGURES IN THIS "BOOK MILEAGE" COLUMN WERE TAKEN BY THE BIDDER FROM "CABLE CIRCUIT TABLES" IN THE SPECIFICATIONS. IN THE NEXT COLUMN THE BIDDER LISTED HIS ESTIMATE OF THE MILEAGE FOR EACH OF THE POINT TO POINT SEGMENTS, WHICH IS STATED TO HAVE BEEN DERIVED BY THE BIDDER'S OWN MEASUREMENT OF THE MAPS. IN THE NEXT COLUMN THE BIDDER LISTED HIS ESTIMATE, BASED ON A SITE SURVEY, OF THE SOIL TRENCHING CONDITIONS FOR EACH SEGMENT. THE MILEAGE FOR EACH SEGMENT WAS THEN TAKEN OFF ON AN ADDING MACHINE SEPARATELY FOR EACH SOIL CONDITION. IN DOING THIS THE BIDDER DESIRED TO SUBTOTAL THE MILEAGE FOR EACH SOIL CONDITION FOR EACH OF THE THREE SQUADRONS INTO WHICH THE WORK WAS DIVIDED. HOWEVER, IN TAKING OFF THE MILEAGE FOR THE SEGMENTS WITH THE MOST DIFFICULT SOIL CONDITION THE BIDDER INADVERTENTLY STRUCK THE TOTAL KEY INSTEAD OF THE SUBTOTAL KEY AT THE END OF THE SECOND SQUADRON SEGMENTS, SO THAT WHEN THE TOTAL KEY WAS STRUCK AT THE END OF THE TAKEOFF OF THE THIRD SQUADRON SEGMENTS THE MILEAGE FOR THE FIRST AND SECOND SQUADRONS WAS OMITTED. THIS RESULTED IN THE OMISSION OF APPROXIMATELY SEVEN-EIGHTHS OF THE MOST DIFFICULT SOIL CONDITION CATEGORY OF TRENCHING. THE TOTAL MILEAGE FOR THE JOB THUS ERRONEOUSLY COMPUTED WAS 1,714 MILES, WHICH THE BIDDER COMPARED WITH THE FIGURE OF 1,710 MAP MILES SHOWN ON THE LAST OF VOLUME III, CABLE ROUTE REPORTS, OF THE SPECIFICATIONS.

IT MAY BE NOTED THAT THE "BOOK MILEAGE" FIGURES WHICH THE BIDDER TOOK FROM THE SPECIFICATIONS, AND NEXT TO WHICH THE BIDDER LISTED HIS OWN MEASUREMENT OF MAP MILEAGE FOR EACH SEGMENT, WERE NOT MAP MILEAGE DISTANCES. PARAGRAPH 3.4.4 ON PAGE 13 OF VOLUME I, INSTALLATION AND PROCUREMENT SPECIFICATION, INFORMED BIDDERS THAT THE CABLE MILEAGES SHOWN IN ALL TABLES REPRESENTED APPROXIMATELY 123 PERCENT OF MAP MILEAGE. BECAUSE OF THIS, THE BIDDER'S MILEAGE AS MEASURED BY HIM ON THE MAPS SHOULD HAVE BEEN CONSISTENTLY ABOUT A FIFTH LOWER THAN THE "BOOK MILEAGE" FIGURE FOR EACH SEGMENT. IT APPEARS THE BIDDER FAILED TO REALIZE THAT THE "BOOK MILEAGE" WAS NOT MAP MILEAGE, OTHERWISE HE WOULD HAVE BEEN ALERTED TO THE PROBABILITY OF ERRORS IN MEASUREMENT IN THE MANY INSTANCES WHERE HIS MEASURED MAP MILEAGE EQUALLED OR EXCEEDED THE "BOOK MILEAGE" FOR A SEGMENT. THE BIDDER'S MEASURED MAP MILEAGE SEGMENT DISTANCES ACTUALLY TOTAL 2,001 MILES, ALTHOUGH BECAUSE OF THE ERROR HE BELIEVED THE TOTAL TO BE 1,714 MILES. THE BIDDER ADDED 5 PERCENT TO THE 1,714 MILES TO ALLOW FOR CONTOUR AND OTHER VARIATIONS, AND COMPUTED COSTS ON THE BASIS OF THS DISTANCE. WHILE THE CONCLUSION IS INESCAPABLE THAT PROPER ANALYSIS AND CHECKING OF THE FIGURES WOULD HAVE REVEALED THE ERROR, THE EVIDENCE DOES ESTABLISH CONCLUSIVELY, WE BELIEVE, THAT SUCH AN ERROR WAS MADE.

THE REMAINING QUESTION BEFORE US FOR DECISION IS WHETHER THE EVIDENCE SUBMITTED AS TO THE METHODS BY WHICH THE ERRONEOUS BID WAS COMPUTED ARE SUFFICIENT TO DEMONSTRATE CONCLUSIVELY WHAT THE BID WOULD HAVE BEEN IF THE MILEAGE INVOLVED HAD NOT BEEN OMITTED. AN ANSWER TO THIS QUESTION REQUIRES SOME ANALYSIS OF THE METHODS USED IN ESTIMATING THE COST OF THE WORK.

BEFORE DISCUSSING THIS ASPECT OF THE CASE, HOWEVER, MENTION SHOULD BE MADE OF CERTAIN GENERAL CONSIDERATIONS AND PRINCIPLES WHICH APPEAR TO BE APPLICABLE TO THIS CASE. WE BELIEVE THAT THE PARTICIPATION OF GOVERNMENT PERSONNEL IN MATTERS OF THIS KIND SHOULD BE LIMITED TO AN ANALYSIS OF TH BID WHICH IS ALLEGED TO BE THE "INTENDED" OR CORRECT BID. WHILE THIS MAY RESULT INDIRECTLY IN AN OPINION AS TO HOW THE BIDDER WOULD HAVE COMPUTED CERTAIN COSTS BUT FOR HIS ERROR, WE DO NOT BELIEVE THAT GOVERNMENT PERSONNEL SHOULD THEMSELVES ATTEMPT TO COMPUTE THE CORRECT BID FOR THE PURPOSE OF DETERMINING WHETHER CORRECTION SHOULD BE PERMITTED. THE REASON FOR THIS IS THAT CONFLICTING INTERESTS ARE INVOLVED IN THE PROCESS. THE PRIMARY INTEREST OF THE GOVERNMENT, WHICH IS THE REASON FOR ADVERTISING THE PROCUREMENT, IS TO GET THE WORK DONE AT THE LOWEST PRICE RESULTING FROM COMPETITIVE SEALED BIDS BY RESPONSIBLE CONTRACTORS. THIS INTEREST NECESSARILY FAVORS COMPUTATION OF THE COST OF THE WORK ON THE LOW SIDE. ON THE OTHER HAND, IN ORDER TO ELIMINATE THE POSSIBILITY THAT THE ERRONEOUS BID MIGHT NOT HAVE BEEN THE LOWEST BID IF THE ERROR HAD NOT OCCURRED, IT IS ESSENTIAL THAT THE ALLEGED CORRECT BID BE COMPUTED ON THE BASIS OF THE HIGHEST COSTS WHICH THE EVIDENCE SHOWS MIGHT HAVE BEEN USED BY THE BIDDER BUT FOR THE ERROR. BECAUSE OF THESE CONFLICTING CONSIDERATIONS WE BELIEVE THAT THE BIDDER REQUESTING CORRECTION OF AN ALLEGED ERROR MUST PRESENT CONVINCING PROOF THAT THE CORRECTED BID IS NEITHER HIGHER NOR LOWER THAN IT WOULD HAVE BEEN IF THE ERROR HAD NOT OCCURRED. THIS IS NOT TO SAY THAT THE CORRECTED BID MUST BE SHOWN TO THE PENNY. FOR EXAMPLE, THE APPLICATION TO OMITTED COSTS OF PERCENTAGES PROVEN TO HAVE BEEN USED IN THE ERRONEOUS BID MIGHT WELL RESULT IN AN ACCEPTABLE TOTAL WHICH COULD VARY WITHIN A LIMITED RANGE. HOWEVER, WHEN THE AMOUNT OF THE ERRONEOUS BID HAS BEEN ARRIVED AT THROUGH THE APPLICATION OF FACTORS INVOLVING JUDGMENT WHICH CANNOT BE MATHEMATICALLY OR PRECISELY DEMONSTRATED BY WORKSHEETS OR OTHER DOCUMENTS ANTEDATING THE ORIGINAL BID TO BE THOSE WHICH WOULD HAVE BEEN USED REGARDLESS OF THE ERROR, AND WHEN THE APPLICATION OF SUCH FACTORS MIGHT RESULT IN A SUBSTANTIAL DIFFERENCE IN THE AMOUNT OF THE BID DEPENDING ON HOW JUDGMENT IS EXERCISED, WE DO NOT BELIEVE CORRECTION SHOULD BE PERMITTED. ANALOGOUS SITUATION ARISES WHEN THE DOCUMENTS SUPPORTING THE ORIGINAL BID SHOW THAT COSTS FOR CERTAIN ELEMENTS OF THE WORK WERE COMPUTED ON THE BASIS OF SEVERAL FACTORS, NOT ALL OF WHICH ARE AFFECTED BY THE ERROR. SUCH CASE, UNLESS THE SUPPORTING DOCUMENTS ALSO SHOW CLEARLY THE COST OR WEIGHT GIVEN SEPARATELY FOR THOSE FACTORS AFFECTED BY THE ERROR, IT SEEMS IMPROBABLE THAT A CORRECTED BID PRICE COULD BE PROVEN WITH SUFFICIENT CERTAINTY TO PERMIT CORRECTION.

THE WORKSHEETS AND PRE-BID DATA SUBMITTED BY THE LOW BIDDER IN THE PRESENT CASE SHOW THAT HE DID NOT COMPUTE A UNIT PRICE BY DISTANCE FOR EACH OF THE SEVERAL SOIL CONDITIONS HE FOUND. IT IS INDICATED THAT HE COMPUTED THE TIME REQUIRED FOR LABOR AND EQUIPMENT PER 1,000 FOOT UNIT FOR EACH OF THE THREE DIFFERENT SOIL CONDITIONS, AND THAT THIS TIME WAS USED AS A BASIS FOR COMPUTING TOTAL LABOR AND EQUIPMENT COSTS FOR THIS PART OF THE JOB. HOWEVER, THERE ARE CERTAIN FIXED ELEMENTS OF WORK TO BE PERFORMED WHICH ARE INDEPENDENT OF THE DISTANCE TO BE COVERED, AND THE ORIGINAL WORKSHEETS INDICATE THAT COSTS FOR SUCH ELEMENTS WERE NOT COMPUTED SEPARATELY FOR THE THREE TYPES OF SOIL CONDITION. EXAMPLES OF SUCH ELEMENTS ARE GRADING AND RESTORATION WORK FOR THE NUMEROUS ROAD, CREEK, RIVER, AND FENCE CROSSINGS. A SIMILAR ELEMENT IS EXCAVATION FOR SEVERAL THOUSAND PREDETERMINED SPLICE PITS AND THE RELATED MATERIAL COSTS. IN OTHER WORDS, SUCH ELEMENTS WERE AN ESSENTIAL PART OF THE WORK TO BE DONE REGARDLESS OF THE TRENCHING DISTANCE OF THE TOTAL JOB, AND THE ORIGINAL COST ESTIMATES NECESSARILY INCLUDED TIME AND COST ALLOWANCES FOR THESE ELEMENTS. THE SUPPORTING DOCUMENTS DO NOT DISCLOSE ANY BREAKDOWN OF THE TIME AND COST ALLOWANCES FOR SUCH ELEMENTS ON THE BASIS OF THE THREE DIFFERENT SOIL CONDITIONS. IT IS THEREFORE IMPOSSIBLE TO DETERMINE THE EFFECT ON THE TIME AND COST ALLOWANCES OF THE OMISSION OF SEVEN-EIGHTHS OF THE ESTIMATED DISTANCE ALLOWANCES OF THE OMISSION OF SEVEN-EIGHTHS OF THE ESTIMATED DISTANCE OF THE MOST DIFFICULT SOIL CONDITION. A SIMILAR SITUATION EXISTS WITH RESPECT TO THE ORIGINAL ESTIMATED EQUIPMENT EXPENSE. EQUIPMENT COSTS WERE COMPUTED ON THE BASIS OF THE PURCHASE OF A SUFFICIENT NUMBER OF PIECES OF EQUIPMENT TO ENABLE PERFORMANCE OF THE ENTIRE JOB WITHIN THE TIME PERMITTED BY THE INVITATION. THE SUPPORTING DOCUMENTS INDICATE THAT ESTIMATES WERE USED AS TO THE NUMBER OF FEET PER HOUR WHICH EQUIPMENT COULD ATTAIN IN THE THREE DIFFERENT SOIL CONDITIONS. HOWEVER, THERE IS NO SHOWING AS TO THE WEIGHT GIVEN IN TERMS OF TIME OR DISTANCE TO THE FIXED ELEMENTS HERETOFORE MENTIONED, I.E. CROSSINGS, SPLICE PITS, ETC. IT IS THEREFORE NOT POSSIBLE TO DETERMINE THE EFFECT ON EQUIPMENT NEEDS OF THE MOST DIFFICULT SOIL CONDITION SEPARATE AND APART FROM THESE FIXED ELEMENTS. ADDITIONALLY, IN THE CASE OF EQUIPMENT ANOTHER FACTOR WHICH MUST BE CONSIDERED IS ESTIMATED "DOWN TIME" FOR REPAIRS, ETC. NECESSARILY, THE GREATER THE PERCENTAGE OF DIFFICULT SOIL CONDITIONS, THE HIGHER THE ESTIMATED PERCENTAGE OF DOWN TIME. HERE TOO THE SUPPORTING DOCUMENTS INDICATE THAT EQUIPMENT DOWN TIME WAS ESTIMATED ON THE OVERALL JOB ON THE BASIS OF JUDGMENT, AND WAS NOT ESTIMATED SEPARATELY FOR EACH SOIL CONDITION. WHILE THE ADDITIONAL COSTS ALLEGED TO HAVE BEEN OMITTED BECAUSE OF THE ERROR APPEAR TO HAVE BEEN COMPUTED IN THE SAME GENERAL MANNER AS SIMILAR COSTS IN THE ORIGINAL BID, IT IS NOT POSSIBLE, BECAUSE OF THE FIXED ELEMENTS MENTIONED AND THE JUDGMENT FACTORS INVOLVED, TO ACCEPT SUCH ADDITIONAL COSTS AS REPRESENTING THE AMOUNT BY WHICH THE ORIGINAL BID WOULD HAVE BEEN INCREASED IN THE ABSENCE OF ERROR. TWO OTHER FACTORS OF PROBABLE LESS IMPORTANCE COSTWISE SHOULD ALSO BE MENTIONED. THESE ARE ITEMS FOR INTEREST AND MISCELLANEOUS WHICH WERE COST ELEMENTS OF THE ORIGINAL BID AND SHOULD HAVE BEEN INCREASED IN THE CORRECTED BID BUT WERE NOT. FURTHERMORE, THE SUPPORTING PAPERS FAIL TO SHOW THE BASIS ON WHICH THESE TWO ELEMENTS WERE ORIGINALLY COMPUTED.

OUR EXAMINATION OF THE ORIGINAL BID, THE DOCUMENTS UPON WHICH IT WAS BASED, AND THE SUBSEQUENT COMPUTATION OF ADDITIONAL COSTS LEAD US TO THE CONCLUSION THAT AN ERROR IN THE BID WAS MADE AS ALLEGED. HOWEVER, BECAUSE OF THE METHODS USED IN COMPUTING THE ORIGINAL BID IT IS IMPOSSIBLE TO ASCERTAIN WITH CERTAINTY WHAT THE AMOUNT OF THE BID WOULD HAVE BEEN IF THE ERROR HAD NOT OCCURRED. THIS IS THE CONTROLLING CONSIDERATION IN DETERMINING WHETHER A BID MAY BE CORRECTED. 38 COMP. GEN. 76; 31 ID. 183; AND 17 ID. 575; 577. ACCORDINGLY, THE BID OF ETS HOKIN AND GALVAN, INC., MUST BE DISREGARDED.

BECAUSE OF THE GREAT DIFFERENCE BETWEEN THE AMOUNT WHICH ETS-HOKIN AND GALVAN, INC., ALLEGES IT SHOULD HAVE BID AND THE AMOUNT OF THE NEXT BID, WE BELIEVE YOUR DEPARTMENT MAY WISH TO GIVE CONSIDERATION TO THE REJECTION OF ALL BIDS AND READVERTISEMENT OF PROCUREMENT.

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