B-164886, SEPT. 11, 1968

B-164886, SEPT. 11, 1968

TO MATHEWS ELECTRICAL SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1968, ADDRESSED TO THE DISTRICT ENGINEER IN CHARGE, UNITED STATES ARMY ENGINEER DISTRICT, MOBILE, PROTESTING AGAINST AWARD OF CONTRACT TO ANDY ELECTRIC COMPANY UNDER INVITATION FOR BIDS NO. DACA01-68-B-0044, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, MOBILE, ALABAMA.

THE INVITATION ISSUED ON APRIL 17, 1968, AS AMENDED, REQUESTED BIDS, TO BE OPENED MAY 14, 1968, FOR FURNISHING ALL PLANT, LABOR, EQUIPMENT, AND MATERIALS REQUIRED BY THE SPECIFICATIONS AND DRAWINGS FOR THE CONSTRUCTION OF AN ELECTRICAL EMERGENCY POWER PLANT AT MAXWELL AIR FORCE BASE, ALABAMA. AS SHOWN BY THE ABSTRACT OF BIDS, THE GOVERNMENT ESTIMATE FOR THE ENTIRE WORK WAS $80,586 AND OF THE TEN BIDS RECEIVED THE NINE LOWEST RANGED FROM $71,486 TO $94,500. YOUR BID OF $86,278 WAS SECOND LOW.

IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT ON MAY 15, 1968, THE DAY AFTER BID OPENING, THE LOW BIDDER, ANDY ELECTRIC COMPANY (ANDY) ALLEGED THAT A MISTAKE WAS MADE IN ITS BID BY FAILING TO INCLUDE LABOR AND MATERIAL COSTS SET OUT ON ONE PAGE OF ITS COST BREAKDOWN IN THE TOTALS ON THE SECOND AND FINAL PAGE OF THAT COST BREAKDOWN. IT IS FURTHER REPORTED THAT THE WRITTEN ALLEGATION OF MISTAKE IN BID DATED MAY 16, 1968, WITH THE ORIGINAL WORKSHEETS AND A REVISED PAGE TWO COVERING THE INTENDED BID SUBSTANTIATES THE BIDDER'S ALLEGATION THAT ONE PAGE OF HIS COST BREAKDOWN WAS OMITTED IN ARRIVING AT HIS TOTAL BID SINCE THE PAGE IN QUESTION COVERS ITEMS REQUIRED IN THE JOB WHICH ARE NOT ACCOUNTED FOR ON PAGE TWO. FAILING TO TRANSFER THE COLUMN SUMMARIES ON PAGE ONE TO THE BOTTOM OF PAGE TWO, THE TOTALS USED BY ANDY IN COMPUTING HIS BID REFLECTED ONLY THE TOTALS ON PAGE TWO, A DIFFERENCE OF $8,024.26.

THE GENERAL COUNSEL OF THE OFFICE OF THE CHIEF OF ENGINEERS, PURSUANT TO AUTHORITY DELEGATED TO HIM UNDER THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3 (B) (1) HAS CONCLUDED THAT THE INFORMATION SUBMITTED IN SUPPORT OF THE ANDY REQUEST FOR BID CORRECTION CONSTITUTED CLEAR AND CONVINCING EVIDENCE BOTH OF A MISTAKE AND THE INTENDED BID. HE THEREFORE GRANTED AUTHORITY TO ANDY TO CORRECT ITS BID FROM $71,486 TO $79,510.

YOUR PROTEST IS PREDICATED ON THE PROPOSITION THAT REGULATIONS PERMITTING CORRECTION OF A MISTAKE IN BID PRICE ARE NOT PROPER INASMUCH AS A BIDDER COULD BUILD A MISTAKE INTO HIS BID AND HAVE HIS PRICE ADJUSTED UPWARDS AFTER BID OPENING.

IN THIS REGARD, SUBPARAGRAPH 2-406.3 (A) (2) OF ASPR PROVIDES THAT "IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO THE EXISTENCE OF THE MISTAKE AND AS TO THE BID ACTUALLY INTENDED, AND IF THE BID, BOTH AS UNCORRECTED AND AS CORRECTED, IS THE LOWEST RECEIVED, A DETERMINATION MAY BE MADE TO CORRECT THE BID AND NOT PERMIT ITS WITHDRAWAL.' SUBPARAGRAPH 2 -406.3 (D) OF ASPR PROVIDES AS FOLLOWS: "/D) TO SUPPORT CORRECTION OF AN ALLEGEDLY ERRONEOUS BID SUBSEQUENT TO OPENING, THE RECORDS SUBMITTED BY THE CONTRACTING OFFICER IN ACCORDANCE WITH DEPARTMENTAL PROCEDURES SHALL CONTAIN THE BEST AVAILABLE EVIDENCE CONCLUSIVELY ESTABLISHING NOT ONLY THE EXISTENCE OF THE ERROR, BUT ITS NATURE, HOW IT OCCURRED, AND WHAT THE BIDDER ACTUALLY INTENDED TO BID. A MERE STATEMENT THAT THE ADMINISTRATIVE OFFICIALS THEMSELVES ARE SATISFIED THAT AN ERROR WAS MADE IS INSUFFICIENT.'

THE FOREGOING PRINCIPLES ENUNCIATED IN THE CITED REGULATIONS ARE NOT OF RECENT DEVELOPMENT BUT LONG HAVE BEEN FOLLOWED BY OUR OFFICE. SEE B- 118819, FEBRUARY 26, 1954, COPY ENCLOSED. THE GENERAL RULE IS THAT A BIDDER MAY NOT CHANGE HIS BID AFTER THE DATE OF OPENING, TO THE PREJUDICE OF OTHER BIDDERS. NEVERTHELESS, THE STATUTES REQUIRING ADVERTISING FOR BIDS AND THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDERS ARE FOR THE BENEFIT OF THE UNITED STATES IN SECURING BOTH FREE COMPETITION AND THE LOWEST COMPETITIVE PRICES IN ITS PROCUREMENT ACTIVITIES. IT HAS CONSISTENTLY BEEN HELD, THEREFORE, THAT WHERE A MISTAKE IS ALLEGED PROMPTLY AFTER OPENING OF BIDS AND THERE IS PRESENTED CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, IN WHAT IT CONSISTS, HOW IT OCCURRED, AND WHAT THE BID WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTERESTS OF THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED SO THAT THE GOVERNMENT MAY HAVE THE BENEFIT OF IT, PROVIDED, OF COURSE, CORRECTION WOULD NOT RESULT IN EXCEEDING THE NEXT LOW CORRECT BID. THIS PRINCIPLE DOES NOT PREJUDICE OTHER BIDDERS BECAUSE ITS APPLICABILITY DEPENDS ON THE ESTABLISHMENT OF THE BID WHICH WOULD HAVE BEEN SUBMITTED FOR OPENING AT THE REQUIRED DATE, BUT FOR THE MISTAKE; AND, CONSEQUENTLY, THE BIDDER GAINS NO ADVANTAGE FROM HIS KNOWLEDGE OF COMPETITIVE BIDS AS HE WOULD IF, FOR INSTANCE, ALL BIDS WERE REJECTED AND THE REQUIREMENTS WERE READVERTISED. 37 COMP. GEN. 210.

WE HAVE CAREFULLY EXAMINED THE DOCUMENTS SUBMITTED AND CONCLUDE THAT THEY AMPLY SUPPORT THE DETERMINATION BY THE GENERAL COUNSEL OF THE CORPS OF ENGINEERS. THE WORKSHEETS OF ANDY SHOW THAT THE LABOR AND MATERIAL COST BREAKDOWN FOR LISTINGS ON PAGE ONE WERE COMPUTED AS $8,024 ROUNDED TO EVEN DOLLARS. HOWEVER, THESE COSTS WERE NOT CARRIED TO THE TOTAL COLUMN OF PAGE TWO AND CONSEQUENTLY WERE NOT INCLUDED IN THE PRICES BID. SUCH BEING THE CASE, IT IS OUR VIEW THAT THE BID PROPERLY WAS FOR CORRECTION AND AS CORRECTED WAS FOR CONSIDERATION ALONG WITH THE OTHER BIDS RECEIVED.

ACCORDINGLY, WE MUST CONCLUDE THAT THE PROCUREMENT REGULATIONS, WHICH HAVE THE FULL FORCE AND EFFECT OF LAW, WERE FOLLOWED BY THE DEPARTMENT OF THE ARMY.