B-154026, JUN. 12, 1964

B-154026, JUN. 12, 1964

TO MR. PAUL L. FLANAGAN AND SONS:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 17, 1964, WITH ENCLOSURES, REQUESTING THAT YOU BE ALLOWED TO CORRECT A MISTAKE MADE IN YOUR BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. 60-64-016, ISSUED BY THE COAST GUARD ACADEMY, BID OPENING DATE OF MARCH 31, 1964.

YOU STATE THAT THE ERROR WAS CLERICAL AND NOT IN ESTIMATING SINCE YOU HAD COMPUTED THE CONCRETE ITEM AT A CERTAIN PRICE BUT CARRIED IT FROM YOUR WORKSHEET TO THE ESTIMATING SHEET AND THENCE TO THE BID FORM AT A LOWER PRICE. YOU ALSO STATE THAT IF CORRECTION IS PERMITTED, YOUR BID WILL STILL BE THE LOWEST SUBMITTED.

ON BID OPENING YOUR FIRM WAS THE APPARENT LOW BIDDER FOR ITEM 1A OF THE INVITATION. YOUR BID ON THIS ITEM WAS $140,280 WHICH WAS APPROXIMATELY $138,000 BELOW THE NEXT LOWEST BIDDER. ON APRIL 1, 1964, THE CONTRACTING OFFICER REQUESTED THAT YOU VERIFY YOUR BID. ON APRIL 6, 1964, YOU NOTIFIED THE CONTRACTING OFFICER THAT THE BID SUBMITTED WAS ACCURATE. THREE DAYS LATER YOU NOTIFIED THE CONTRACTING OFFICER THAT YOU HAD MADE A CLERICAL ERROR IN CARRYING FORWARD A FIGURE ON AN ITEM THAT YOU HAD ACTUALLY ESTIMATED AT A HIGHER PRICE IN ARRIVING AT YOUR BID PRICE FOR ITEM 1A. YOU MADE A FORMAL REQUEST TO CORRECT THE BID BECAUSE THE ADJUSTED TOTAL WOULD STILL PLACE YOU AS THE LOW BIDDER. YOU FURNISHED EVIDENCE OF THE ALLEGED MISTAKE AND ON APRIL 10, 1964, AGAIN REQUESTED THAT YOUR BID BE REVISED OR THAT YOU BE ALLOWED TO WITHDRAW IT. THE CONTRACTING OFFICER FORWARDED THE MATTER TO THE COMMANDANT OF THE COAST GUARD WITH THE RECOMMENDATION THAT YOU BE ALLOWED TO WITHDRAW YOUR BID. IT WAS DETERMINED THAT THERE WAS CLEAR AND CONVINCING EVIDENCE THAT A MISTAKE HAD BEEN MADE, BUT IT WAS NOT POSSIBLE TO DETERMINE DEFINITELY WHAT BID YOU INTENDED TO MAKE. ON APRIL 15, 1964, THE COMMANDANT OF THE COAST GUARD ADVISED THE CONTRACTING OFFICER THAT YOUR BID MUST BE DISREGARDED.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID IS UPON THE BIDDER, WHO ORDINARILY MUST BEAR THE CONSEQUENCES OF AN ERROR IN THE BID UPON WHICH A CONTRACT IS BASED. OUR OFFICE HAS HELD, HOWEVER, THIS RULE DOES NOT ENTITLE THE GOVERNMENT TO TAKE ADVANTAGE OF A BIDDER'S ERROR WHERE IT HAS BEEN ALLEGED AND SATISFACTORILY ESTABLISHED PRIOR TO AWARD.

IT IS SETTLED LAW THAT A BIDDER UNDER AN ADVERTISED FEDERAL INVITATION FOR BIDS MAY NOT MODIFY OR WITHDRAW ITS BID AFTER BIDS HAVE BEEN OPENED. REFINING ASSOCIATES, INCORPORATED V. UNITED STATES, 109 F.SUPP. 259. IT HAS BEEN HELD, HOWEVER, THAT WHERE THE PUBLIC BODY, AS HERE, IS ON NOTICE OF ERROR IN A BID WHICH HAS BEEN SUBMITTED, ACCEPTANCE OF THAT ERRONEOUS BID WILL NOT RESULT IN THE FORMATION OF AN ENFORCEABLE CONTRACT. MOFFET, HODGKINS AND CLARKE COMPANY V. ROCHESTER, 178 U.S. 373. FOR THIS REASON, IT HAS BEEN A LONG-STANDING PRACTICE IN FEDERAL PROCUREMENT TO PERMIT WITHDRAWAL OF A BID UPON CONVINCING PROOF OF ERROR THEREIN.

YOU ALLEGED ERROR IN YOUR BID AND REQUESTED PERMISSION TO WITHDRAW YOUR BID. THE COAST GUARD FOUND THE EVIDENCE OF ERROR CLEAR AND CONVINCING, BUT COULD NOT DETERMINE THE INTENDED BID, AND THEREFORE, DETERMINED TO DISREGARD YOUR BID.

WE CONCUR WITH THE COAST GUARD IN ITS FINDING THAT AN ERROR WAS MADE IN THE BID, THAT THE INTENDED PRICE IS NOT CLEAR, AND WE ARE NOT REQUIRED TO OBJECT TO ITS FINDING THAT YOUR BID SHOULD ..END :