B-176378(1), OCT 20, 1972

B-176378(1), OCT 20, 1972

BID PROTEST - MISTAKE IN BID - CONFLICTING PRICES DENIAL OF PROTEST BY FORTEC CONSTRUCTORS AGAINST THE AWARD OF A CONTRACT TO J. WILLIAMS CONSTRUCTION, INC., UNDER AN IFB ISSUED BY THE FEDERAL AVIATION ADMINISTRATION FOR INSTALLATION AND CONSTRUCTION WORK. CONFLICTING PRICES ON THE FACE OF A BID IS AN EVIDENT MISTAKE REQUIRING THE IMPLEMENTATION OF THE MISTAKE IN BID PROCEDURES. WHERE PROPER CLARIFICATION OF THE MISTAKE HAS BEEN MADE AND EITHER AMOUNT IS LOWER THAN THE NEXT HIGHEST BID, GAO WILL NOT OBJECT TO AN AWARD AT THE HIGHER OF THE TWO PRICES. B-148648, APRIL 19, 1962. ACCORDINGLY, THE PROTEST IS DENIED.

TO SADUR, PELLAND, BRAUDE & CAPLAN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 16, 1972, AND PRIOR CORRESPONDENCE PROTESTING, ON BEHALF OF FORTEC CONSTRUCTORS (FORTEC), AGAINST THE AWARD OF A CONTRACT TO J. WILLIAMS CONSTRUCTION, INC. (WILLIAMS), UNDER INVITATION FOR BIDS IFB S051-2-143, ISSUED BY THE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION.

TWO BIDS WERE RECEIVED IN RESPONSE TO THE IFB WHICH REQUESTED BIDS FOR EQUIPMENT INSTALLATION AND CONSTRUCTION WORK. THE GOVERNMENT'S ESTIMATE FOR THE JOB WAS $102,042. BASED UPON PRICES STATED ON THE BID FORM (STANDARD FORM 21), THE BIDS OF WILLIAMS AND FORTEC WERE CONSIDERED TO BE $117,202 AND $117,550, RESPECTIVELY. THE INVITATION, HOWEVER, ALSO CONTAINED A CONTINUATION SHEET (STANDARD FORM 36) WHICH LISTED SEVEN GENERAL CATEGORIES OF WORK CORRESPONDING TO THE DETAILS OF THE SPECIFICATIONS. UNIT AND EXTENDED PRICES FOR THESE CATEGORIES WERE REQUIRED AS WAS THE RETURN OF THE CONTINUATION SHEET ITSELF. PAYMENT UNDER THE RESULTING CONTRACT WAS TO BE BASED ON THE SUM TOTAL OF THE EXTENDED PRICES FOR THE WORK CATEGORIES APPEARING ON THE CONTINUATION SHEET. ON THE WILLIAMS SHEET THIS TOTAL AMOUNT WAS $89,300. WHILE THIS AMOUNT REFLECTS A CORRECT MATHEMATICAL COMPUTATION OF THE INDIVIDUAL ITEM PRICES, IT IS AT VARIANCE WITH THE TOTAL AMOUNT OF $117,202 STATED ON WILLIAMS' BID FORM.

AT THE REQUEST OF THE CONTRACTING OFFICER, WILLIAMS VERBALLY VERIFIED THAT ITS INTENDED BID PRICE WAS THAT STATED ON THE BID FORM, I.E., $117,202. WILLIAMS SAID IT CONCLUDED, BASED ON PRIOR PROCUREMENT EXPERIENCE, THAT THE SCHEDULE OF BID PRICES WAS FOR IN-HOUSE INFORMATIONAL PURPOSES ONLY. THEREFORE, ITS PRICES ON THE SCHEDULE OMITTED OVERHEAD AND PROFIT AS WELL AS PARTITION WORK WHICH IT DID NOT CONSIDER TO BE INCLUDED IN A CATEGORY LISTED IN THE CONTINUATION SHEET. IN VIEW OF THESE REPRESENTATIONS, AND SINCE WILLIAMS WAS THE LOW BIDDER ON THE BASIS OF EITHER TOTAL AMOUNT, THE CONTRACTING OFFICER DENIED FORTEC'S PROTEST AND MADE AWARD TO WILLIAMS.

IN OUR OPINION, FORTEC WAS NOT PREJUDICED BY CONSIDERATION OF THE WILLIAMS BID. HAD ONLY THE $89,300 AMOUNT APPEARED IN THE WILLIAMS BID, THE CONTRACTING OFFICER WOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF A MISTAKE BECAUSE OF THE GOVERNMENT ESTIMATE AND THE NEXT LOW BID AND VERIFICATION WOULD HAVE BEEN REQUIRED. THIS, IN EFFECT, IS WHAT THE CONTRACTING OFFICER DID IN THIS INSTANCE. IN THIS CONNECTION, WE HAVE TREATED THE ANALOGOUS SITUATION OF CONFLICTING PRICES ON THE FACE OF A BID AS ONE OF EVIDENT MISTAKE REQUIRING THE IMPLEMENTATION OF THE MISTAKE IN BID PROCEDURES. WHERE PROPER CLARIFICATION HAS BEEN MADE AND EITHER AMOUNT IS LOWER THAN THE NEXT HIGHEST BID, WE HAVE NOT OBJECTED TO AN AWARD AT THE HIGHER OF THE TWO PRICES. B-148648, APRIL 19, 1962; B- 171763, MARCH 9, 1971. SEE, ALSO, B-153977, JUNE 24, 1964. IN THIS INSTANCE FORTEC REMAINS THE HIGHER BIDDER REGARDLESS OF WHICH AMOUNT IN THE WILLIAMS BID IS CONSIDERED TO BE THE BID PRICE OF THAT FIRM. ADDITION, OUR EXAMINATION OF THE WILLIAMS WORKSHEETS SUBSTANTIATES THE BID FORM AMOUNT OF $117,202. FURTHER, WE UNDERSTAND THAT THE ENTRIES ON THE CONTINUATION SHEET HAVE BEEN MODIFIED TO BRING THEM INTO CONFORMANCE WITH THE BID FORM AMOUNT AND THAT PAYMENT IS BEING MADE IN ACCORDANCE WITH THE INVITATION REQUIREMENTS. WE HAVE NO OBJECTION TO THE CONFORMANCE PROCEDURE SINCE THE CORRECTED ENTRIES ON THE CONTINUATION SHEET ARE LIMITED BY THE $117,202 TOTAL AND THE BID WAS NOT FOR EVALUATION BEYOND THE ESTIMATED WORK QUANTITIES STATED IN THE IFB.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED. WE ARE, HOWEVER, ADVISING THE SECRETARY OF TRANSPORTATION THAT THE VERIFICATION OF THE WILLIAMS BID PRICE, BEING BASED ON VERBAL INFORMATION FROM THE BIDDER, WAS NOT IN STRICT CONFORMANCE WITH THE APPLICABLE PROCUREMENT REGULATIONS.