B-126463, JAN. 16, 1956

B-126463, JAN. 16, 1956

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 27, 1955, WITH ENCLOSURES, RELATIVE TO AN ERROR ALLEGED BY ALLAN ASSOCIATES, INC., TO HAVE BEEN MADE IN ITS BID DATED NOVEMBER 9, 1955, SUBMITTED IN RESPONSE TO INVITATION NO. ENG-04-353-56-41 DATED OCTOBER 20, 1955.

THE BID FORM CONTAINED BUT ONE SCHEDULE COVERING THE CONSTRUCTION OF TACTICAL AND ADMINISTRATIVE FACILITIES AT SPECIAL AAA LA 57-C AND LA 57-L, LOS ANGELES COUNTY, CALIFORNIA. HOWEVER, THE SCHEDULE WAS DIVIDED INTO GROUPS A, B, AND C, EACH GROUP CONTAINING MULTIPLE ITEMS. BIDS ON ALL ITEMS IN THE THREE GROUPS WERE REQUIRED SINCE THE INVITATION PROVIDED AT THE END OF THE BID FORM SCHEDULE THAT "BIDS SHALL BE SUBMITTING ON ALL ITEMS OF THE UNIT PRICE SCHEDULE.'

ALLAN ASSOCIATES, INC., THE LOW BIDDER, SUBMITTED BIDS ON ALL OF THE ITEMS IN THE THREE GROUPS EXCEPT AS TO ITEM 8B UNDER GROUP B, DESCRIBED AS "EXCAVATION," 4,400 CUBIC YARDS. ON THE DAY OF THE BID OPENING, NOVEMBER 9, 1955, THE BIDDER WAS INFORMALLY ADVISED BY A REPRESENTATIVE OF THE GOVERNMENT THAT ITS BID MIGHT BE CONSIDERED NONRESPONSIVE AND REJECTED BECAUSE OF THE FAILURE TO SHOW AN AMOUNT FOR ITEM 8B. BY REASON THEREOF, ON THE SAME DAY THE BIDDER SUBMITTED ITS WORKSHEET COVERING GROUP B WHICH SETS FORTH ITS PRICES FOR THE 22 ITEMS UNDER THAT GROUP INCLUDING ITEM 8B, EXCAVATION, 4,400 CUBIC YARDS, AT $0.35 A CUBIC YARD, TOTALING $1,540. ALSO, THE BIDDER REFERRED TO THE FACT THAT AS TO ITEMS 4A IN GROUP A AND 4C IN GROUP C, BOTH OF WHICH COVER SIMILAR EXCAVATION, HE SUBMITTED IN HIS BID A PRICE OF $0.35 A CUBIC YARD.

THERE WOULD APPEAR TO BE NO DOUBT THAT THE BIDDER OMITTED A BID FOR ITEM 8B THROUGH ERROR. ALSO, AS EVIDENCED BY ITS INCLUSION OF THE ITEM IN ITS WORKSHEET, AND THE FACT THAT IT SUBMITTED BIDS ON SIMILAR ITEMS UNDER THE OTHER TWO GROUPS, IT IS BELIEVED CLEAR THAT THE BIDDER INTENDED TO BID ON ITEM 8B AND AT THE SAME PRICE AS FOR ITEMS 4A AND 4C, NAMELY $0.35 A CUBIC YARD. THE QUESTION THEN IS WHETHER IT WOULD BE PROPER TO PERMIT CORRECTION OF THE BID TO INCLUDE THE INTENDED BID FOR ITEM 8B AND TO AWARD THE CONTRACT TO ALLAN ASSOCIATES ON THE BASIS OF ITS BID AS CORRECTED, IN VIEW OF THE REQUIREMENT OF THE BID INVITATION THAT BIDS BE SUBMITTED ON ALL ITEMS.

ONE OF THE PURPOSES OF THE STATUTORY REQUIREMENT OF ADVERTISING FOR BIDS IN MATTERS OF THIS TYPE IS TO SECURE TO ALL QUALIFIED BUSINESS CONCERNS AN EQUAL OPPORTUNITY FOR OBTAINING CONTRACTS WITH THE GOVERNMENT, THEREBY ELIMINATING ANY POSSIBILITY OF CHARGES OF FAVORITISM AND COLLUSION IN THE AWARD OF GOVERNMENT CONTRACTS. IN VIEW THEREOF, IT HAS CONSISTENTLY BEEN HELD BY OUR OFFICE AND THE COURTS THAT BIDDERS SHOULD NOT BE PERMITTED TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, IT BEING CONSIDERED THAT THE STRICT MAINTENANCE OF SUCH RULE IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE.

HOWEVER, THE FOREGOING RULE WAS NOT INTENDED TO PROHIBIT THE CORRECTION OF BIDS IN PROPER CASES WHERE IT IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT A MISTAKE HAS BEEN MADE IN THE BID. IN THE PRESENT CASE THE BIDDER DOES NOT SEEK TO RECALCULATE AND CHANGE ITS BID TO INCLUDE FACTORS WHICH IT DID NOT HAVE IN MIND WHEN ITS BID WAS SUBMITTED, OR AS TO WHICH IT HAS SINCE CHANGED ITS MIND. RATHER IT PROPOSES TO CORRECT ITS BID TO INCLUDE THEREIN A PREVIOUSLY CALCULATED ITEM WHICH IS ACTUALLY INTENDED TO INCLUDE, BUT WHICH WAS INADVERTENTLY OMITTED FROM ITS ORIGINAL BID. CONSIDERING ALL THE CIRCUMSTANCES, IT IS REASONABLE TO CONCLUDE THAT THE RECORD CONTAINS CONVINCING EVIDENCE THAT A MISTAKE WAS MADE AND WHAT THE BID PRICE WOULD HAVE BEEN EXCEPT FOR THE MISTAKE.

SINCE THERE CAN BE NO DOUBT THAT THE BIDDER INTENDED TO BID ON THE ITEM AND, UNDER THE CIRCUMSTANCES, THE AMOUNT THEREOF IS NEITHER SUBJECT TO THE DISCRETION OF THE BIDDER NOR OPEN TO CONJECTURE, WE THINK IT FAIRLY CAN BE STATED THAT TO PERMIT CORRECTION OF THE OMISSION WOULD NOT BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS.

ACCORDINGLY, THE BID OF ALLAN ASSOCIATES, INC., MAY BE CORRECTED TO INCLUDE THE INTENDED PRICE FOR ITEM 8B--- 4,400 CUBIC YARDS AT $0.35 A CUBIC YARD, $1,540--- AND THE CONTRACT AWARDED TO IT ON THE BASIS OF ITS BID AS CORRECTED, SINCE IT WILL STILL REMAIN THE LOW BID BY A SUBSTANTIAL MARGIN.

THE TWO COPIES OF THE PROPOSED CONTRACT AND ONE OF THE TWO COPIES OF ALL OTHER PAPERS FORWARDED WITH YOUR LETTER ARE RETURNED. ALL OTHER PAPERS ARE RETAINED IN OUR OFFICE FILES.