B-150318, JUN. 6, 1963

B-150318, JUN. 6, 1963

TO ITT KELLOGG COMMUNICATIONS SYSTEMS:

IN YOUR TELEGRAM OF APRIL 12, 1963, YOU PROTEST THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE AIR FORCE UNDER INVITATION FOR BIDS NO. 04-606-63 -65, TO EITHER UNITED COMMUNICATIONS, INC., OR STELMA, INCORPORATED. BOTH OF THESE BIDDERS FAILED TO BID ON ALL ITEMS UNDER THE INVITATION, NOTWITHSTANDING THE PROVISION OF PARAGRAPH 5 (B) OF STANDARD FORM 22 WHICH STATES THAT FAILURE TO BID ON ALL ITEMS SHALL DISQUALIFY THE BID.

THE RECORD ESTABLISHES THAT PRIOR TO AWARD THE AIR FORCE ALLOWED UNITED COMMUNICATIONS, INC., TO CORRECT AN UNINTENTIONAL OMISSION IN ITS BID PRICE, $0.20 FOR REGULAR TIME (RT) AND $0.21 FOR OVERTIME (OT), ON A SUBITEM OF ITEMS 296 AND 298, AND STELMA, INCORPORATED, TO CORRECT AN UNINTENTIONAL OMISSION IN ITS BID PRICE OF $0.01, RT AND OT, ON A SUBITEM OF ITEM 307, ALL THREE OF WHICH ITEMS WERE FOR NEW CONCRETE MANHOLES.

UNITED'S ERROR OF OMISSION OCCURS WITHIN A SERIES OF SUBITEMS UNDER ITEMS 924 THROUGH 299. UNITED WAS DIRECTED TO AND DID SUBMIT ITS PRICES FOR THESE SUBITEMS ON A RECTANGULAR BIDDING FORM CONSISTING OF 6 ROWS AND 14 COLUMNS. IN THE FIRST TWO COLUMNS THE PROCURING ACTIVITY HAD "X"-ED OUT THOSE 6 BOXES FORMED BY THE INTERSECTING ROWS 2, 4 AND 6, LEAVING 78 "BOXES" IN WHICH PRICES WERE TO BE INSERTED. UNITED ERRONEOUSLY OMITTED ITS RT AND OT PRICES FROM THE BOXES FORMED BY THE INTERSECTION OF THE THIRD AND FIFTH ROWS WITH THE FIRST TWO COLUMNS. HOWEVER, THE PRICES IT SUBMITTED IN THE 74 REMAINING BOXES ESTABLISHED A PATTERN OF PRICES OF $0.20 AND $0.22 FOR ALL MANHOLES WITH 48 INCHES OR MORE HEADROOM AND $0.20 AND $0.21 FOR MANHOLES WITH 42-INCH HEADROOM, REGARDLESS OF SOIL CONDITION.

STELMA'S OMISSION OCCURS WITHIN A SERIES OF SUBITEMS UNDER ITEMS 300 THROUGH 311, ARRANGED IN 12 ROWS AND 14 COLUMNS. IN THE FIRST TWO COLUMNS THE PROCURING ACTIVITY "X"-ED OUT ALL BOXES EXCEPT THOSE FORMED BY THE INTERSECTION OF ROWS 4, 8 AND 12, LEAVING 150 BOXES IN WHICH PRICES WERE TO BE INSERTED. STELMA ERRONEOUSLY OMITTED ITS RT AND OT PRICES FROM THE BOXES FORMED BY THE INTERSECTION OF THE EIGHTH ROW AND THE FIRST TWO COLUMNS. HOWEVER, THE PRICES IT SUBMITTED ON THE REMAINING 148 SUBITEMS WERE ALL AT $0.01, THUS ESTABLISHING A PATTERN SIMILAR TO THAT OF UNITED.

THE FACTS SURROUNDING THESE ERRORS ARE SUBSTANTIALLY SIMILAR TO THOSE IN OUR DECISION B-137971, DATED DECEMBER 9, 1958, WHICH INVOLVED AN INVITATION REQUIRING PRICES ON VARIOUS SUBITEMS OF UPHOLSTERY, SUCH AS MUSLIN, LEATHER, DUCK AND TWEED. THE LOW BIDDER ALLEGED THAT ON THE ITEM IN QUESTION HE HAD INTENDED TO CHARGE THE SAME PRICE FOR ALL DUCK MATERIAL RATHER THAN $0.50 MORE FOR DUCK PRINTED THAN DUCK PLAIN, AND HAD INTENDED TO CHARGE $0.50 MORE FOR THE TWEED THAN EITHER DUCK RATHER THAN HAVING OMITTED ANY PRICE FOR THE TWEED. WE AGREED WITH THE ADMINISTRATIVE AGENCY THAT THERE WAS NO REASON TO DOUBT THE TRUTH OF THE ALLEGATION SINCE THE PRICING OF PLAIN DUCK AND PRINTED DUCK WAS CONSISTENTLY THE SAME THROUGHOUT THE BID, AND THE $0.50 HIGHER DIFFERENTIAL FOR ROUGH TEXTURE TWEED WAS ALSO CONSISTENT WITH THESE BID PRICES IN THE PARTICULAR PRICE RANGE INVOLVED. WE HELD AS FOLLOWS:

"* * * ALTHOUGH THE BID, AS SUBMITTED, TECHNICALLY MAY NOT BE RESPONSIVE WITH RESPECT TO THE GROUP OF ITEMS CONSISTING OF ITEMS NOS. 30-1 THROUGH 30-46, SINCE NO BID WAS PLACED OPPOSITE SUBITEM NO. 30-2 (B) (3), NEVERTHELESS, THE BID ITSELF, AS SUBMITTED, INDICATES NOT ONLY THE PROBABILITY OF ERROR BUT ALSO EXACTLY WHEREIN THE ERROR WAS MADE AND WHAT WAS INTENDED. IN THE CIRCUMSTANCES, WE DO NOT BELIEVE THAT CORRECTION OF THE BID WOULD BE GRANTING BAKER AN UNFAIR ADVANTAGE OVER THE OTHER BIDDERS. * * *"

WE BELIEVE THE SIMILARITY OF FACTS BETWEEN THE CITED AND INSTANT CASES DICTATES THE APPLICATION OF THE SAME RULE, I.E., THAT AN APPARENT LOW BIDDER MAY CORRECT A PRICE OMISSION ALLEGED PRIOR TO AWARD, ON AN ITEM WHICH MIGHT OR MIGHT NOT BE ORDERED UNDER THE RESULTING CONTRACT, IF THE ERRONEOUS BID ITSELF ESTABLISHES A DEFINITE AND EASILY RECOGNIZABLE PATTERN OF PRICES WHICH CLEARLY INDICATES NOT ONLY THAT THE ALLEGED ERROR IS ANOMALOUS TO THE PATTERN BUT ALSO THAT THE ALLEGEDLY INTENDED FIGURE IS ONE WHICH IS SOLELY COMPATIBLE WITH THE PATTERN. ACCORDINGLY, WE HOLD THAT THE AIR FORCE PROPERLY ALLOWED UNITED AND STELMA TO CORRECT THEIR FAILURES TO SUBMIT BIDS ON THE SUBJECT SUBITEMS.

YOU ALSO ALLEGE THAT THE TWO LOW BIDDERS SUBMITTED SUCH UNREASONABLY LOW PRICES AS TO JUSTIFY REJECTION OF THEIR BIDS. THE QUESTION OF WHETHER THE SUBMISSION OF THESE LOW BIDS CONSTITUTES LEGAL JUSTIFICATION FOR REJECTION OF THE BID HAS ALREADY BEEN CONSIDERED IN OUR DECISION OF MARCH 25, 1963, TO ELCOM CORPORATION AND ANSWERED IN THE NEGATIVE. A COPY OF THIS DECISION IS ENCLOSED.