B-128928, SEP. 17, 1956

B-128928: Sep 17, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO P AND Z COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9. THE REPORT OF THE DEPARTMENT OF THE AIR FORCE INDICATES THAT BIDS WERE OPENED ON JULY 24. SIX BIDS WERE RECEIVED. THE AIR FORCE CONTRACT OFFICER AND HIS REPRESENTATIVES NOTED THAT A MISTAKE MIGHT HAVE BEEN MADE IN THE BECK COMPANY'S BID SINCE IT CONTAINED A HIGHER PRICE FOR ITEM NO. 1 THAN ITEM NO. 2. THEY WERE AWARE THAT THE PROJECT ENGINEER HAD ESTIMATED THAT THE FIRST ITEM ENTAILED A GREATER QUANTITY OF WORK THAN THE SECOND. THE APPARENT DISCREPANCY WAS POINTED OUT TO THE REPRESENTATIVE OF THE BECK COMPANY WHO IMMEDIATELY ALLEGED THAT A MISTAKE HAD BEEN MADE AND IN SUPPORT OF THAT POSITION PRODUCED ORIGINAL WORKSHEETS WHICH SHOWED CLEARLY THAT THE PRICES FOR ITEMS 1 AND 2 HAD BEEN TRANSPOSED ON THE BID.

B-128928, SEP. 17, 1956

TO P AND Z COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1956, PROTESTING THE AWARD OF CONTRACTS UNDER BID INVITATION NO. (IFB/-05-613 56-28 FOR THE CONSTRUCTION OF FOUNDATION SUB-PIERS FOR THE ACADEMIC COMPLEX AND THE CADET QUARTERS COMPLEX OF THE AIR FORCE ACADEMY.

THE REPORT OF THE DEPARTMENT OF THE AIR FORCE INDICATES THAT BIDS WERE OPENED ON JULY 24, 1956. SIX BIDS WERE RECEIVED. A. R. BECK COMPANY SUBMITTED A BID OF $178,955 FOR ITEM NO. 1, $205,876 FOR ITEM NO. 2, AND $369,625 FOR ITEMS NOS. 1 AND 2 COMBINED. SAXTET FOUNDATION COMPANY SUBMITTED A BID OF $246,150 FOR ITEM NO. L, $156,070 FOR ITEM NO. 2, AND $362,366 FOR ITEMS 1 AND 2 COMBINED. YOUR COMPANY SUBMITTED A BID OF $ 206,666 FOR ITEM NO. 1, $ 166,666 FOR ITEM NO. 2, AND $ 362, 366 FOR ITEMS 1 AND 2 COMBINED.

AFTER THE BIDS HAD BEEN OPENED AND READ AND BEFORE AN AWARD HAD BEEN MADE, THE AIR FORCE CONTRACT OFFICER AND HIS REPRESENTATIVES NOTED THAT A MISTAKE MIGHT HAVE BEEN MADE IN THE BECK COMPANY'S BID SINCE IT CONTAINED A HIGHER PRICE FOR ITEM NO. 1 THAN ITEM NO. 2, WHEREAS ALL OTHER BIDDERS QUOTED A LOWER PRICE FOR ITEM NO. 1, AND, FURTHERMORE, THEY WERE AWARE THAT THE PROJECT ENGINEER HAD ESTIMATED THAT THE FIRST ITEM ENTAILED A GREATER QUANTITY OF WORK THAN THE SECOND. THE APPARENT DISCREPANCY WAS POINTED OUT TO THE REPRESENTATIVE OF THE BECK COMPANY WHO IMMEDIATELY ALLEGED THAT A MISTAKE HAD BEEN MADE AND IN SUPPORT OF THAT POSITION PRODUCED ORIGINAL WORKSHEETS WHICH SHOWED CLEARLY THAT THE PRICES FOR ITEMS 1 AND 2 HAD BEEN TRANSPOSED ON THE BID. ON THE SAME DAY, THE BECK COMPANY SUBMITTED A LETTER TO THE CONTRACTING OFFICER EXPLAINING THAT THE SPECIFICATIONS ENTITLED,"FOUNDATIONS, CADET QUARTERS COMPLEX, ACADEMIC COMPLEX," DATED JUNE 22, 1956, LISTED THE CADET QUARTERS COMPLEX FIRST AND THE ACADEMIC COMPLEX SECOND. THE LETTER EXPLAINED THAT THE BECK COMPANY BEGAN TO CARRY THE ORDER OF THE WORK IN THE SAME SEQUENCE SHOWN IN THE SPECIFICATIONS AND CONTINUED THAT SEQUENCE IN COMPUTING THEIR BID. THROUGH INADVERTENCE WHEN THEY ENTERED THE AMOUNTS IN THE BID FORM THE SAME SEQUENCE WAS CONTINUED AND THE PRICE FOR THE CADET QUARTERS COMPLEX WAS INSERTED AFTER ITEM NO. 1 INSTEAD OF THE PRICE INTENDED FOR THE ACADEMIC COMPLEX AS CALLED FOR BY THE INVITATION.

ON THE BASIS OF THE FACTS SET OUT ABOVE, PERMISSION WAS GRANTED TO THE BECK COMPANY TO CORRECT THE BID BY TRANSPOSING THE PRICES ORIGINALLY SUBMITTED FOR ITEMS 1 AND 2. SINCE BECK'S BID FOR ITEM NO. 1 REMAINED THE LOWEST BID, AWARD WAS MADE TO THEM FOR THAT PORTION OF THE WORK.

YOU PROTESTED THE AWARD TO THE BECK COMPANY ON THE BASIS THAT THE ERROR MADE WAS NOT "OBVIOUS OR APPARENT" AND THEREFORE THE CORRECTION SHOULD NOT HAVE BEEN PERMITTED.

THE GENERAL RULE APPLICABLE IN THIS TYPE OF SITUATION IS THAT A BIDDER MAY NOT FREELY CHANGE HIS BID AFTER THE DATE OF OPENING TO THE PREJUDICE OF OTHER BIDDERS. NEVERTHELESS, THE STATUTES REQUIRING ADVERTISING FOR BIDS AND THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDERS ARE FOR THE BENEFIT OF THE UNITED STATES IN SECURING BOTH FREE COMPETITION AND THE LOWEST COMPETITIVE PRICES IN ITS PROCUREMENT ACTIVITIES. THEREFORE, IT HAS BEEN HELD CONSISTENTLY THAT WHERE A MISTAKE IS ALLEGED PROMPTLY AFTER OPENING OF BIDS AND BEFORE AWARD, AND THERE IS PRESENTED IMMEDIATELY CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, WHAT IT CONSISTS OF, HOW IT OCCURRED, AND WHAT THE BID PRICES WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTERESTS OF THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED, SO THAT IF THE CORRECTED BID IS THE LOWEST RESPONSIBLE BID RECEIVED, THE GOVERNMENT MAY HAVE THE BENEFIT OF IT. THIS PRINCIPLE IS NOT REGARDED AS PREJUDICIAL TO OTHER BIDDERS SINCE ITS APPLICABILITY DEPENDS ON THE CLEAR ESTABLISHMENT OF THE BID WHICH WAS ACTUALLY INTENDED AND WOULD HAVE BEEN SUBMITTED EXCEPT FOR THE ERROR; AND, CONSEQUENTLY, THE BIDDER GAINS NO ADVANTAGE FROM HIS KNOWLEDGE OF OTHER BIDS SUBMITTED AS HE WOULD IF THE REQUIREMENT WERE READVERTISED.

IN THE INSTANT CASE, THE IMMEDIATE NOTIFICATION TO THE CONTRACTING OFFICER OF THE ALLEGED ERROR AND THE SIMULTANEOUS PRODUCTION OF THE WORKSHEETS IN SUPPORT OF THE ALLEGATION APPEAR TO PRECLUDE ANY DOUBT OF THE ERROR OR THE PRICE INTENDED TO BE BID.

WHILE THE MISTAKE INVOLVED WAS NOT, STRICTLY SPEAKING, AN OBVIOUS CLERICAL ERROR OF THE KIND WHICH CONTRACTING OFFICERS ARE AUTHORIZED TO CORRECT WITHOUT SUBMISSION TO HIGHER AUTHORITY, WE ARE SATISFIED FROM THE RECORD THAT THE ACTION TAKEN WAS WHAT WOULD HAVE BEEN DIRECTED HAD THE MATTER BEEN REFERRED TO US FOR ADVANCE DECISION. WE THEREFORE PERCEIVE NO PROPER BASIS UPON WHICH WE COULD OBJECT TO THE ACCEPTANCE OF THE CORRECTED BID OF THE A. R. BECK FOUNDATION COMPANY.

AS TO YOUR FURTHER COMPLAINT THAT THE SEPARATE AWARD OF ITEMS 1 AND 2 TO THE CONTRACTORS, AT A PRICE ONLY $ 720 LESS THAN YOUR BID FOR THE COMBINED WORK, WAS NOT JUSTIFIED, YOU ARE ADVISED THAT THE DETERMINATION OF WHICH COURSE OF ACTION IS IN THE BEST INTERESTS OF THE GOVERNMENT IS A MATTER WITHIN THE SOUND DISCRETION OF THE ADMINISTRATIVE AGENCY. IN THE ABSENCE OF CLEAR AND FLAGRANT ABUSE, WHICH DOES NOT HERE APPEAR, WE CANNOT UNDERTAKE TO INTERFERE WITH SUCH ..END :