B-134300, DEC. 18, 1957
Highlights
TO FLUID DRIVE ENGINEERING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1. AS YOU WERE ADVISED IN OUR LETTER OF NOVEMBER 6. YOUR PROTEST WAS REFERRED TO THE SECRETARY OF THE ARMY WITH A REQUEST FOR A COMPLETE REPORT IN THE MATTER. THE RECORD DISCLOSES THAT IN RESPONSE TO THE INVITATION INVOLVED FOUR BIDS WERE RECEIVED. THAT THE LOWEST RESPONSIVE BID WAS SUBMITTED BY THE PATLYN GEAR AND TRANSMISSION CORPORATION. THAT AWARD WAS MADE TO THAT CONCERN. THE RECORD FURTHER SHOWS THAT YOU WERE THE ONLY BIDDER REPRESENTED AT THE BID OPENING. THAT UPON THE READING OF YOUR PROPOSAL NO COMMENT AS TO ERROR OR OMISSION OF A MATERIAL FACT THEREIN WAS OFFERED BY YOUR REPRESENTATIVE.
B-134300, DEC. 18, 1957
TO FLUID DRIVE ENGINEERING COMPANY:
FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 1, 1957, PROTESTING 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.
AS YOU WERE ADVISED IN OUR LETTER OF NOVEMBER 6, 1957, YOUR PROTEST WAS REFERRED TO THE SECRETARY OF THE ARMY WITH A REQUEST FOR A COMPLETE REPORT IN THE MATTER, AND BY COVERING LETTER DATED DECEMBER 5, 1957, THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) FORWARDED TO US THE CONTRACTING OFFICER'S REPORT OF THE FACTS ACCOMPANIED BY SUPPORTING PAPERS. THE RECORD DISCLOSES THAT IN RESPONSE TO THE INVITATION INVOLVED FOUR BIDS WERE RECEIVED, THAT THE LOWEST RESPONSIVE BID WAS SUBMITTED BY THE PATLYN GEAR AND TRANSMISSION CORPORATION, AND THAT AWARD WAS MADE TO THAT CONCERN.
THE RECORD FURTHER SHOWS THAT YOU WERE THE ONLY BIDDER REPRESENTED AT THE BID OPENING; THAT UPON THE READING OF YOUR PROPOSAL NO COMMENT AS TO ERROR OR OMISSION OF A MATERIAL FACT THEREIN WAS OFFERED BY YOUR REPRESENTATIVE, MR. JOSEPH SELIBER; AND THAT THEREAFTER BY TELEPHONE AND BY LETTERS DATED SEPTEMBER 26, 1957, YOU STATED THAT YOU INADVERTENTLY OMITTED THE OFFER OF A PROMPT PAYMENT DISCOUNT OF ONE PERCENT, THE NETEFFECT OF WHICH WOULD HAVE REDUCED YOUR NET BID TO $2,871, AS COMPARED TO THE CORRECT LOW BID OF $2,894.81.
WHILE IT IS APPRECIATED THAT IF AWARD WAS MADE ON THE BASIS OF YOUR BID, AFTER CORRECTION, THE EQUIPMENT COULD HAVE BEEN PROCURED BY THE GOVERNMENT AT A LESSER PRICE, IT IS APPARENT THAT SUCH ACTION WOULD BE PREJUDICIAL TO THE OTHER BIDDERS. ALSO, AND INFINITELY MORE IMPORTANT IS THE FACT THAT TO PERMIT THE INSERTION OF A PROMPT PAYMENT DISCOUNT IN A SUBMITTED BID AFTER OPENING, SUCH AS YOU REQUEST, WOULD BE TANTAMOUNT TO REDUCING THE AMOUNT OF THAT OFFER, AND CLEARLY WOULD BE IN VIOLATION OF A FUNDAMENTAL RULE OF LAW GOVERNING THE AWARD OF PUBLIC CONTRACTS ON A COMPETITIVE BASIS. MOREOVER, WE HAVE HELD THAT, EVEN IN THE CASE OF A BONA FIDE ERROR IN BID, CORRECTION THEREOF IS IMPROPER WHERE TO DO SO WOULD RESULT IN A BID NOT THE LOWEST SUBMITTED BECOMING LOWEST, EXCEPT WHERE THE ERROR IS OBVIOUS ON THE FACE OF THE BID. YOUR CASE CLEARLY DOES NOT FALL WITHIN THE EXCEPTION.
IN VIEW OF THE FOREGOING THE REFUSAL OF THE CONTRACTING OFFICER TO PERMIT YOU TO VARY YOUR BID WAS PROPER, AND WE FIND NO LEGAL JUSTIFICATION FOR DISTURBING THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE.