B-185786, APR 27, 1976

B-185786, APR 27, 1976

FOR LOW BID TO BE CORRECTED BEFORE AWARD, BIDDER MUST PRESENT CLEAR EVIDENCE OF NATURE AND EXISTENCE OF MISTAKE, AND BID ACTUALLY INTENDED ADDITIONALLY, THE CORRECTED BID CANNOT DISPLACE ANY OTHER BIDDER. HERE, BIDDER HAS MET ALL REQUIRED TESTS AND CORRECTION OF BID IS THEREFORE PROPER.

Z.A.N. CO.:

Z.A.N. CO. PROTESTS CORRECTION OF THE LOW BID OF DURABLE METAL PRODUCTS CO. (DURABLE) UNDER INVITATION FOR BIDS (IFB) NO. F42600-76-B 5568, ISSUED BY THE OGDEN AIR LOGISTICS CENTER, HILL AIR FORCE BASE, UTAH.

BIDS ON A BASIC QUANTITY OF 452 (ITEM 0001) AND ALTERNATIVE QUANTITIES OF 554 (ALTERNATIVE "A") AND 655 (ALTERNATIVE "B") WERE SOLICITED. TWENTY- SIX BIDS WERE RECEIVED WITH DURABLE BEING THE LOW BIDDER WITH PRICES OF $8.20, $7.94 AND $7.74 FOR ITEM 0001, ALTERNATIVE "A" AND ALTERNATIVE "B," RESPECTIVELY. THE BID BY Z.A.N. (SECOND LOW BIDDER) WAS CONSIDERABLY HIGHER AT $20.85, $19.80 AND $18.40 FOR THE RESPECTIVE QUANTITIES. SINCE DURABLE'S BID WAS APPROXIMATELY 60 PERCENT LOWER THAN THE NEXT LOW BIDDER, THE CONTRACTING OFFICER ASKED DURABLE TO VERIFY ITS BID. ON NOVEMBER 20, 1975, DURABLE ADVISED THE CONTRACTING OFFICER THAT THERE HAD BEEN A MISTAKE MADE IN THE BID AND THAT THE UNIT PRICES SHOULD HAVE BEEN $20.00 FOR ITEM 0001, $19.25 FOR ALTERNATIVE "A" AND $17.95 FOR ALTERNATIVE "B." SUBSEQUENTLY, DURABLE FORWARDED A LETTER TO THAT EFFECT AND REQUESTED CORRECTION, SUBMITTING ITS WORKPAPERS. THE ERROR WAS SAID TO HAVE OCCURRED WHEN THE SECRETARY MISTAKENLY PULLED THE PRICE OFF ONE OF THE COMPONENT SHEETS AND TRANSCRIBED THE FIGURE AS THE INTENDED PRICE FOR THE TOTAL ASSEMBLY. DURABLE WAS ALLOWED TO CORRECT ITS BID, THEREBY, BRINGING ITS BID TO WITHIN 2.5 PERCENT OF Z.A.N.'S BID. AWARD WAS MADE TO DURABLE ON THE BASIS OF THE CORRECTED PRICES.

THE WORKPAPERS SUBMITTED BY DURABLE REFLECT THE FOLLOWING COMPONENT COST ESTIMATES ON SEPARATE WORKSHEETS:

WORKSHEET ITEM 0001 ALTERNATIVE QTY "A" ALTERNATIVE QTY "B"

A $ 3.26 $ 3.26 $ 3.06 B 6.14 5.78 4.92 C .96 .84 .80 D 1.18 1.18 1.18 E .05 .05 .05 F .21 .20 .20 G 8.20 7.94 7.74 TOTAL PRICE

$20.00 $19.25 $17.95

THE ERROR OCCURRED WHEN THE SECRETARY MISTAKENLY PULLED THE FIGURES FROM WORKSHEET "G" AS THE TOTAL PRICE. THE INTENDED PRICE, THEN, WAS THE SUM OF ALL THE WORKSHEETS OR $20.00 FOR ITEM 0001, $19.25 FOR ALTERNATIVE "A" AND $17.95 FOR ALTERNATIVE "B."

OUR OFFICE HAS CONSISTENTLY HELD THAT IN ORDER TO PERMIT CORRECTION OF AN ERROR IN BID PRIOR TO AWARD, A BIDDER MUST SUBMIT "CLEAR AND CONVINCING EVIDENCE" (1) THAT A MISTAKE WAS MADE, (2) THE NATURE OF THE MISTAKE, AND (3) THE BID PRICE ACTUALLY INTENDED. 53 COMP.GEN. 232 (1973). THESE SAME BASIC REQUIREMENTS FOR THE CORRECTION OF A BID ARE FOUND IN THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2 406.3(A)(2) (1975 ED.), WHICH PROVIDES:

"***IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO 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."

IN 53 COMP.GEN. 232 (1973) WE STATED:

"EVEN THOUGH THE GENERAL ACCOUNTING OFFICE (GAO) HAS RETAINED THE RIGHT OF REVIEW, THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER BID OPENING BUT PRIOR TO AWARD IS VESTED IN THE PROCURING AGENCY AND THE WEIGHT TO BE GIVEN THE EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF EVIDENCE, WHOSE DECISION WILL NOT BE DISTURBED BY OUR OFFICE UNLESS THERE IS NO REASONABLE BASIS FOR THE DECISION. 41 COMP.GEN. 160, 163 (1961); 51 ID. 1,3 (1971)."

FROM A REVIEW OF THE RECORD BEFORE THIS OFFICE, WE MUST AGREE WITH THE PROCURING AGENCY THAT DURABLE HAS MET THE TESTS FOR CORRECTING ITS BID. ACCORDINGLY, THE PROTEST OF Z.A.N. IS DENIED.