B-134300, JAN. 27, 1958

B-134300, JAN. 27, 1958

TO THE FLUID DRIVE ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1957, REQUESTING RECONSIDERATION OF OUR DECISION DATED DECEMBER 18, 1957, WHEREIN THERE WAS AFFIRMED THE ACTION TAKEN BY THE CHICAGO PROCUREMENT OFFICE, CORPS OF ENGINEERS, IN DENYING YOUR REQUEST TO AMEND THE BID YOU SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. CIVENG 11-032-58-11, AND IN AWARDING A CONTRACT THEREON TO ANOTHER BIDDER.

IT APPEARS FROM THE LETTER OF DECEMBER 26, 1957, THAT YOUR REQUEST FOR FURTHER CONSIDERATION OF THE MATTER IS BASED UPON TWO CONTENTIONS: FIRST, THAT AN ERROR WAS MADE IN PARAGRAPH 3 OF OUR DECISION TO YOU DATED DECEMBER 18, 1957, WHEREIN IT WAS STATED, IN EFFECT, THAT YOUR MR. JOSEPH SELIBER, WHO ATTENDED THE BID OPENING, DID NOT COMMENT AS TO ANY ERROR OR OMISSION IN YOUR BID AT THE TIME OF THE READING THEREOF; AND SECONDLY, THAT THE ERROR OF OMISSION WAS OBVIOUS ON THE FACE OF THE BID, THEREBY IMPLYING THAT IT FALLS WITHIN THE EXCEPTION STATED IN THE LATTER PART 4 OF OUR DECISION.

ALL PERTINENT FACTS RELATIVE TO THE ISSUE INVOLVED IN THIS CASE PREVIOUSLY HAD BEEN FULLY AND COMPLETELY SET FORTH IN OUR DECISION OF DECEMBER 18, 1957, AND, THEREFORE, A REITERATION OF THOSE FACTS AT THIS TIME WOULD APPEAR TO SERVE NO USEFUL PURPOSE.

WITH REGARD TO ANY COMMENT BY MR. SELIBER AT THE TIME THE BIDS WERE OPENED, THE STATEMENT OF THE CHIEF OF THE PURCHASING SECTION, WHO WAS IN CHARGE OF THE OPENING, IS AS FOLLOWS:

"MR. JOSEPH SELIBER OF THE FLUID DRIVE ENGINEERING COMPANY, 3105 EAST CHELTENHAM PLACE, CHICAGO 49, ILLINOIS, WAS THE ONLY BIDDER REPRESENTATIVE PRESENT AT THE BID OPENING. WHEN FLUID DRIVE ENGINEERING COMPANY'S BID WAS READ OFF FOR RECORDING, THE PRICE WAS STATED AS NET. MR. SELIBER AT THAT TIME LEANED OVER AND LOOKED AT THE FLUID DRIVE BID SIGNED BY HIM WITHOUT MAKING ANY COMMENT AT THAT SPECIFIC TIME.

"AT APPROXIMATELY ONE HOUR THEREAFTER, MR. SELIBER TELEPHONED THE UNDERSIGNED ALLEGING A MISTAKE IN BID BY INADVERTENTLY FAILING TO INCLUDE DISCOUNT TERMS OF 1 PERCENT - 20 DAYS, AND REQUESTED THAT BID BE AMENDED ACCORDINGLY. * * *"

EVEN IF IT WERE CONCLUSIVELY SHOWN THAT MR. SELIBER DEFINITELY DID ADVISE THE DEPARTMENT OF THE ARMY AT THAT TIME NOT ONLY THAT YOU INTENDED TO ALLOW A DISCOUNT BUT ALSO THE AMOUNT OFFERED, THIS FACT, WITHOUT MORE, WOULD NOT BE CONTROLLING IN THE DISPOSITION OF THE CASE. TO GRANT RELIEF BY THE CORRECTION OF A BID IN ALL CASES OF THIS KIND THERE FIRST MUST BE NO DOUBT WHATSOEVER BUT THAT AN ERROR WAS IN FACT MADE, AS ALLEGED, AND SECONDLY, IT MUST BE CLEAR AND CERTAIN AS TO WHAT THE INTENDED BID PRICE WOULD HAVE BEEN HAD THE ERROR NOT OCCURRED. SINCE THE MATTER OF OFFERING DISCOUNTS TO THE GOVERNMENT FOLLOWS NO PARTICULAR PATTERN OF CONSISTENCY, EITHER AS TO THE OFFER ITSELF OR AS TO THE AMOUNT THEREOF, AND SINCE INTENT--- ONE OF THE MOST DIFFICULT OF ALL ISSUES TO PROVE--- IS THE SOLE MEDIUM OF DETERMINING WHETHER A DISCOUNT WAS OR WAS NOT TO BE OFFERED, WE BELIEVE THAT YOU CAN READILY SEE WHY IT PREVIOUSLY HAS BEEN CONCLUDED THAT THE MATTER IS NOT FREE OF DOUBT. THE FACT THAT A PARTICULAR BIDDER HAS IN PRIOR BIDS CONSISTENTLY OFFERED A UNIFORM DISCOUNT CANNOT BE TAKEN AS CONCLUSIVE OF AN INTENT TO MAKE THE SAME OFFER IN ANOTHER BID WHICH WHOLLY FAILS TO SHOW ANY SUCH OFFER.

WITH RESPECT TO YOUR SECOND CONTENTION WHEREIN IT IS STATED IN YOUR LETTER OF DECEMBER 26, 1957, AMONG OTHERS, THAT "* * * THE ERROR WAS OBVIOUS TO US IMMEDIATELY, * * *" YOU ARE ADVISED THAT IT VERY WELL MAY BE THAT DUE TO PREVAILING POLICIES OF YOUR COMPANY THAT AN ERROR OF THIS KIND WAS COMPLETELY OBVIOUS TO YOU. THE QUESTION, HOWEVER, IS NOT HOW OBVIOUS THE ERROR WAS TO YOU BUT RATHER WAS THE ERROR, AS WELL AS THE INTENDED BID PRICE, OBVIOUS TO THE GOVERNMENT CONTRACTING OFFICER. AGAIN WE CANNOT CONCLUDE IN THE AFFIRMATIVE IN THIS RESPECT.

IN VIEW OF THE FOREGOING, AND IN THE INTEREST OF PRESERVING THE FUNDAMENTAL RULES OF LAW GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS, IT IS NECESSARY THAT OUR DECISION DATED DECEMBER 18, 1957, BE AFFIRMED.