B-176260, OCT 4, 1972

B-176260, OCT 4, 1972

BID PROTEST - NONRESPONSIVENESS - ALLEGED ERROR - CORRECTION AFTER BID OPENING DECISION AFFIRMING THE DENIAL OF THE PROTEST OF P. AGNES, INC., AGAINST REJECTION OF ITS BID AS NONRESPONSIVE UNDER AN IFB ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, PHILADELPHIA, PA. EVEN IF IT CAN BE ESTABLISHED THAT THE INSERTION OF A PARTICULAR FIGURE IN A BID, WHICH RENDERED THE BID NONRESPONSIVE, WAS THE RESULT OF A CLERICAL ERROR, AND THAT THE INTENDED FIGURE WOULD HAVE MADE THE BID RESPONSIVE, THE BID STILL CANNOT BE RECONSIDERED BECAUSE A NONRESPONSIVE BID MAY NOT BE CORRECTED AFTER BID OPENING IN ORDER TO MAKE IT RESPONSIVE. 38 COMP. GEN. 819 (1959).

TO MARKS AND MARKS:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1972, AND THE MEMORANDUM SUBMITTED AT A MEETING WITH REPRESENTATIVES OF THIS OFFICE ON AUGUST 29, 1972, CONCERNING THE REQUEST OF P. AGNES, INCORPORATED (PAI), FOR RECONSIDERATION OF OUR DECISION, B-176260, AUGUST 2, 1972, WHICH DENIED THE PROTEST OF PAI AGAINST THE REJECTION OF ITS BID UNDER AN INVITATION FOR BIDS FOR PROJECT NUMBER 37-5431, ISSUED BY THE VETERANS ADMINISTRATION HOSPITAL, PHILADELPHIA, PENNSYLVANIA.

BRIEFLY, THE REASON FOR FINDING PAI'S BID NONRESPONSIVE WAS THAT A LETTER DATED JUNE 6, 1972, INCLUDED WITH PAI'S BID, LISTED "100" AS THE NUMBER OF MINORITY GROUP EMPLOYEES FOR CALENDAR YEAR 1973 IN THE IRONWORKER CATEGORY OUT OF AN ESTIMATED 800 TOTAL EMPLOYEES IN THAT CATEGORY, WHICH IS BELOW THE ACCEPTABLE RANGE OF 22 TO 26 PERCENT FOR IRONWORKERS SET OUT IN SECTION AAP OF THE INVITATION. PAI ALLEGED THAT THE "100" FIGURE WAS INSERTED THROUGH CLERICAL ERROR AND THAT THE ERRONEOUS FIGURE IS INCONSEQUENTIAL SINCE PAI WAS BOUND BY THE "BIDDER'S AGREEMENT" TO MEET THE PLANNED GOALS.

WE FOUND THAT THE LETTER INCLUDED WITH PAI'S BID CREATED AN AMBIGUITY WITH RESPECT TO THE BIDDER'S COMMITMENT TO THE AFFIRMATIVE ACTION REQUIREMENT FOR IRONWORKERS UPON AN AWARD. CITING 40 COMP. GEN. 432 (1961), WE CONCLUDED THAT PAI'S NONRESPONSIVE BID COULD NOT BE CORRECTED TO MAKE THE BID RESPONSIVE.

YOUR REQUEST FOR RECONSIDERATION HINGES ON YOUR CONTENTIONS, WHICH HAVE BEEN PREVIOUSLY CONSIDERED, THAT THE FIGURE FOR IRONWORKERS ACTUALLY INTENDED IN THE JUNE 6 LETTER WAS "200"; THAT THE "100" FIGURE WAS INSERTED THROUGH CLERICAL ERROR AND THAT IN ANY EVENT THE JUNE 6 LETTER WAS INCONSEQUENTIAL SINCE PAI WAS BOUND TO THE REQUIREMENTS OF SECTION AAP OF THE "BIDDER'S AGREEMENT" WHICH SET FORTH THE ACCEPTABLE RANGES FOR THE VARIOUS CATEGORIES OF WORKERS.

FOR THE REASONS STATED IN OUR EARLIER DECISION, WE DO NOT AGREE THAT YOU COULD BE BOUND TO PERFORMANCE UNDER SECTION AAP OF THE "BIDDER'S AGREEMENT" NOTWITHSTANDING THE FIGURES IN THE JUNE 6 LETTER. ON THE BASIS OF THE RECORD BEFORE US IT CANNOT BE ESTABLISHED EXCEPT THROUGH SPECULATION WHAT PAI SUBJECTIVELY INTENDED IN THE JUNE 6 LETTER BY INSERTING THE FIGURE "100" FOR THE IRONWORKER CATEGORY WHICH DEVIATED FROM THE ACCEPTABLE RANGE. THE JUNE 6 LETTER INCLUDED WITH PAI'S BID MUST BE CONSIDERED AS PART OF THE BID AND MAY NOT BE DISREGARDED.

IN ANY EVENT, AS STATED IN OUR PRIOR DECISION, EVEN IF IT COULD BE ESTABLISHED THAT YOU INTENDED TO INSERT THE FIGURE "200" FOR IRONWORKERS AND THAT THE "100" FIGURE WAS THE RESULT OF CLERICAL ERROR, YOUR BID STILL COULD NOT BE CONSIDERED, SINCE A NONRESPONSIVE BID MAY NOT BE CORRECTED IN ORDER TO MAKE THE BID RESPONSIVE. 38 COMP. GEN. 819 (1959) AND 44 COMP. GEN. 302 (1964). YOUR BID AS SUBMITTED WAS NONRESPONSIVE ON ITS FACE; THEREFORE, EVEN AN UNINTENTIONAL CLERICAL ERROR COULD NOT BE CORRECTED.

FOR THESE REASONS WE MUST AFFIRM OUR PRIOR DECISION.