B-174460, APR 27, 1972

B-174460, APR 27, 1972

BID PROTEST - MISTAKE IN BID - PROPRIETY OF CORRECTION CONCERNING A PROTEST OF KINGS POINT MANUFACTURING COMPANY, INC., AGAINST CORRECTION OF THE BID SUBMITTED BY DAVID CLARK COMPANY, INC., UNDER AN IFB ISSUED BY THE DEFENSE SUPPLY AGENCY. IN VIEW OF THE FACT THAT CLARK'S BID WAS SUBMITTED ON AN "ALL OR NONE" BASIS, IT IS SUSCEPTIBLE OF NO OTHER INTERPRETATION THAN THAT CLARK'S PRICES DECREASE PROGRESSIVELY FROM LOWER TOTAL QUANTITIES TO HIGHER TOTAL QUANTITIES AND THAT THIS PATTERN WAS INTENDED TO BE REFLECTED IN EACH OF THE THREE SIZES WHICH SPECIFY DIFFERENT QUANTITIES. SINCE THE CONSISTENCY OF THE BIDDING PATTERN LOGICALLY ESTABLISHES BOTH THE EXISTENCE OF THE ERROR AND THE AMOUNT OF THE INTENDED BID, THE DECISION OF JANUARY 18, 1972, IS HEREBY MODIFIED AND THE PROTEST OF KINGS POINT DENIED.

TO GENERAL WALLACE H. ROBINSON:

REFERENCE IS MADE TO OUR DECISION, B-174460, DATED JANUARY 18, 1972, UPHOLDING THE PROTEST OF KINGS POINT MANUFACTURING COMPANY, INCORPORATED (KINGS POINT), AGAINST THE CORRECTION OF THE BID SUBMITTED BY DAVID CLARK COMPANY, INCORPORATED (CLARK), UNDER INVITATION FOR BIDS (IFB) NO. DSA100- 72-B-0214.

BRIEFLY, WE HELD IN OUR INITIAL DECISION THAT ALTHOUGH IT WAS APPARENT THAT CLARK MADE A MISTAKE IN ITS BID, THE INTENDED BID PRICES FOR ITEMS 0005AC AND 0006AC WERE NOT ASCERTAINABLE FROM THE BID DOCUMENTS AND, THEREFORE, CORRECTION, WHICH WOULD HAVE ENTAILED DISPLACEMENT OF AN APPARENT LOW BIDDER, COULD NOT BE ALLOWED.

BY LETTER DATED FEBRUARY 4, 1972, CLARK HAS REQUESTED A RECONSIDERATION OF OUR JANUARY 18, 1972, DECISION. CLARK NOTES THE AGENCY POLICY IN SUCH PROCUREMENTS TO MAKE AWARD BY SELECTING CORRESPONDING STEPLADDER QUANTITIES UNDER EACH SIZE AND STATES THAT IT IS CLEAR FROM CLARK'S PRICING PATTERN AND THE AGENCY POLICY THAT THE INTENDED PRICE FOR ITEMS 5 AND 6 UNDER SIZE 7 1/2 WAS $5.72 RATHER THAN THE $7.83 SPECIFIED IN THE BID.

UPON CAREFUL RECONSIDERATION OF THIS MATTER WE CONCLUDE THAT CLARK'S INTENDED BID WAS IN FACT DISCERNIBLE FROM THE BID DOCUMENTS.

THE RATIONALE SUPPORTING OUR INITIAL DECISION IS AS FOLLOWS:

"IN THE PRESENT CASE, IF CLARK IS PERMITTED TO CORRECT ITS BID PRICES ON ITEMS 0005AC AND 0006AC, IT WILL DISPLACE KINGS POINT AS THE APPARENT LOW BIDDER. ALTHOUGH IT IS APPARENT THAT CLARK MADE A MISTAKE IN ITS BID, ITS ALLEGED INTENDED BID PRICES FOR ITEMS 0005AC AND 0006AC ARE NOT ASCERTAINABLE FROM THE INVITATION AND THE BID ITSELF. CLARK'S BID INDICATES THAT FOR THE SIZE 7 HELMETS IT QUOTED UNIT PRICES RANGING FROM $7.83 TO $4.77 FOR QUANTITIES RANGING FROM 1,514 TO 2,811, RESPECTIVELY, AND THAT FOR THE SIZE 7 1/4 HELMETS IT QUOTED THE SAME UNIT PRICES AS IT HAD QUOTED FOR THE QUANTITIES OF SIZE 7 HELMETS BUT FOR QUANTITIES RANGING 1,935 TO 3,954. HOWEVER, SINCE THE QUANTITY RANGE FOR SIZE 7 1/2, ON WHICH SIZE ERROR IS ALLEGED BY CLARK, IS APPROXIMATELY ONLY ONE-THIRD OF THE QUANTITY RANGES FOR SIZES 7 AND 7 1/4, WE DO NOT BELIEVE THAT CLARK'S BID ESTABLISHES THAT IT INTENDED TO QUOTE THE SAME UNIT PRICES FOR SIZE 7 1/2 AS IT HAD QUOTED FOR SIZES 7 AND 7 1/4."

THIS CONCLUSION IS BASED ON THE PREMISE THAT CLARK'S BID PRICES FOR SIZE 7 1/2 HELMETS WERE DIRECTLY RELATED TO THE QUANTITIES SPECIFIED UNDER THAT SIZE ONLY, WITHOUT REGARD TO THE EQUIVALENT STEPLADDER QUANTITIES FOR THE OTHER SIZES. HOWEVER, CLARK'S BID WAS SUBMITTED ON AN "ALL OR NONE" BASIS REQUIRING THE AGENCY TO PROCURE A QUANTITY UNDER EACH OF THE FOUR HELMET SIZES IN ORDER TO ACCEPT THE BID. THEREFORE, SINCE THE BID WAS NOT SUBMITTED ON THE BASIS OF INDIVIDUAL STEPLADDER QUANTITIES UNDER EACH SIZE, IT WOULD BE ILLOGICAL TO ASSUME THAT BECAUSE OF THE SMALLER QUANTITIES REQUIRED UNDER SIZE 7 1/2, CLARK'S UNIT PRICES UNDER THAT SIZE WOULD VARY FROM THE PATTERN OF DESCENDING PRICES FOR INCREASED QUANTITIES ESTABLISHED UNDER SIZES 7 AND 7 1/4. ALTHOUGH THE TERMS OF THE INVITATION DO NOT RESTRICT THE GOVERNMENT'S RIGHT TO REQUIRE DIFFERING STEPLADDER QUANTITIES UNDER EACH SIZE, WE HAVE BEEN INFORMALLY ADVISED THAT IT IS THE POLICY OF BOTH DSA AND THE NAVY TO SELECT CORRESPONDING QUANTITIES UNDER EACH SIZE. IT IS EVIDENT FROM CLARK'S BID THAT ITS PRICES WERE CALCULATED ON THIS ASSUMPTION.

IN VIEW OF THE ABOVE-CITED FACTORS, WE FEEL THAT CLARK'S BID IS SUSCEPTIBLE OF NO OTHER INTERPRETATION THAN THAT CLARK'S PRICES DECREASE PROGRESSIVELY FROM LOWER TOTAL QUANTITIES TO HIGHER TOTAL QUANTITIES AND THAT THIS PRICING PATTERN WAS INTENDED TO BE REFLECTED IN EACH OF THE THREE SIZES WHICH SPECIFY DIFFERING QUANTITIES. THE BID SUBMITTED ON SIZE 6 3/4 APPEARS TO SUBSTANTIATE THE PATTERN. IN THE CONTEXT OF AN "ALL OR NOTHING" BID CLARK OFFERED ITS LOWEST UNIT PRICE ON THE SINGLE QUANTITY REQUIRED UNDER SIZE 6 3/4, WHICH IS FOR THE LEAST NUMBER OF UNITS, SINCE THESE UNITS WOULD BE ADDED TO THE TOTAL QUANTITY ORDERED UNDER THE OTHER THREE SIZES.

TAKING INTO CONSIDERATION ALL OF THE RULES CONCERNING CORRECTION RESULTING IN THE DISPLACEMENT OF AN APPARENT LOW BIDDER, WE CONCLUDE THAT THE CONSISTENCY OF THE BIDDING PATTERN FOLLOWED BY CLARK LOGICALLY ESTABLISHES BOTH THE EXISTENCE OF THE ERROR AND THE AMOUNT OF THE INTENDED BID ON ITEMS 0005AC AND 0006AC.

ACCORDINGLY, OUR DECISION OF JANUARY 18, 1972, IS HEREBY MODIFIED AND THE PROTEST OF KINGS POINT DENIED. YOU ARE ADVISED THAT THE PRICES QUOTED FOR ITEMS 0005AC AND 0006AC OF THE CLARK BID SHOULD BE CORRECTED TO READ $5.72, THE SAME PRICES QUOTED FOR THE CORRESPONDING STEPLADDER QUANTITIES OF ITEMS 0005AA, 0006AA, 0005AB, AND 0006AB AND THE BID CONSIDERED ON THAT BASIS, WHICH ARE REPORTED TO BE THE ITEMS SELECTED FOR THE AWARD.