B-131922, JUN. 6, 1957

B-131922: Jun 6, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER DATED MAY 24. TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. THE TABLES TO BE PACKED FOR DOMESTIC SHIPMENT WERE TO BE SHIPPED TO SIX DESTINATIONS AND BIDDERS WERE GIVEN THE OPTION TO BID EITHER ON AN F.O.B. THE INVITATION PROVIDES: "BIDDER GUARANTEES THAT THE SHIPPING WEIGHT AND CUBE SPECIFIED ABOVE ARE NOT LESS THAN THE ACTUAL SHIPPING WEIGHT AND CUBE OF EACH ITEM. IF THE BID IS ACCEPTED. THE BIDDER WILL BE LIABLE TO AND WILL REIMBURSE THE GOVERNMENT FOR ANY AND ALL EXCESS TRANSPORTATION COSTS OCCASIONED BY THE UNDERESTIMATION OF THE SHIPPING WEIGHT AND CUBE.'. THE COMPANY STATED IN THE BID THAT THE TABLES WOULD BE PACKED TWO PER CONTAINER AND THE SHIPPING WEIGHT PER CONTAINER WAS SPECIFIED AS 120 POUNDS FOR DOMESTIC PACK AND 123 POUNDS FOR EXPORT PACK.

B-131922, JUN. 6, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER DATED MAY 24, 1957, FROM THE ASSISTANT SECRETARY (LOGISTICS), RELATIVE TO AN ERROR ALLEGED BY THE ORTHOPEDIC EQUIPMENT COMPANY, BOURBON, INDIANA, TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. QM 33-031-57-381, ISSUED BY THE QUARTERMASTER PURCHASING AGENCY, COLUMBUS, OHIO, AND PUBLICLY OPENED ON FEBRUARY 12, 1957.

THE INVITATION REQUESTED BIDS FOR FURNISHING 19,009 TABLES WITH FOLDING LEGS, 14,167 TO BE PACKED FOR DOMESTIC SHIPMENT AND 4,842 TO BE PACKED FOR EXPORT SHIPMENT. THE TABLES TO BE PACKED FOR DOMESTIC SHIPMENT WERE TO BE SHIPPED TO SIX DESTINATIONS AND BIDDERS WERE GIVEN THE OPTION TO BID EITHER ON AN F.O.B. ORIGIN OR F.O.B. DESTINATION BASIS. WITH RESPECT TO THE 4,842 TABLES TO BE PACKED FOR EXPORT SHIPMENT BIDS COULD BE SUBMITTED ONLY ON AN F.O.B. ORIGIN BASIS AND THE INVITATION SPECIFICALLY PROVIDES THAT IN EVALUATING THE BIDS TRANSPORTATION COSTS FROM BIDDER'S SHIPPING POINT TO THREE SPECIFIED DESTINATIONS WOULD BE CONSIDERED IN DETERMINING THE LOWEST COST TO THE GOVERNMENT BASED ON THE BIDDER'S GUARANTEED SHIPPING WEIGHTS SET FORTH IN THE BID.

THE INVITATION REQUIRED BIDDERS TO SPECIFY THEIR SHIPPING POINT, SHIPPING WEIGHT AND SIZE OF CONTAINER WHEN PACKED FOR SHIPMENT. WITH RESPECT TO THE SHIPPING DATA GUARANTEE, THE INVITATION PROVIDES:

"BIDDER GUARANTEES THAT THE SHIPPING WEIGHT AND CUBE SPECIFIED ABOVE ARE NOT LESS THAN THE ACTUAL SHIPPING WEIGHT AND CUBE OF EACH ITEM. IF THE BID IS ACCEPTED, THE BIDDER WILL BE LIABLE TO AND WILL REIMBURSE THE GOVERNMENT FOR ANY AND ALL EXCESS TRANSPORTATION COSTS OCCASIONED BY THE UNDERESTIMATION OF THE SHIPPING WEIGHT AND CUBE.'

IN RESPONSE TO THE INVITATION, ORTHOPEDIC EQUIPMENT COMPANY SUBMITTED A BID DATED FEBRUARY 6, 1957, OFFERING TO FURNISH TABLES PACKED FOR DOMESTIC SHIPMENT FOR $8.45 EACH AND THOSE PACKED FOR EXPORT SHIPMENT FOR $8.95 EACH, F.O.B. SYRACUSE, INDIANA. THE COMPANY STATED IN THE BID THAT THE TABLES WOULD BE PACKED TWO PER CONTAINER AND THE SHIPPING WEIGHT PER CONTAINER WAS SPECIFIED AS 120 POUNDS FOR DOMESTIC PACK AND 123 POUNDS FOR EXPORT PACK.

THE PROVISIONS OF THE INVITATION CLEARLY GAVE NOTICE TO THE BIDDERS THAT THE GOVERNMENT WAS CONCERNED NOT MERELY WITH THE FACTORY COST, BUT THE TOTAL COST OF SHIPPING THE TABLES TO THE DESTINATIONS SPECIFIED. THE ONLY METHOD OF COMPUTING SUCH TOTAL COST, PRIOR TO AWARD, WAS TO REQUIRE BIDDERS TO SPECIFY A GUARANTEED SHIPPING WEIGHT. THEREFORE, THE GUARANTEED SHIPPING WEIGHT SPECIFIED BY THE BIDDERS IN THEIR BIDS IS EQUALLY AS AN IMPORTANT ITEM IN DETERMINING THE LOW BIDDER AS THE PRICE QUOTED FOR THE TABLES THEMSELVES.

THE BID OF ORTHOPEDIC EQUIPMENT COMPANY, AS SUBMITTED AND EVALUATED UPON THE BASIS OF THE TOTAL COST TO THE GOVERNMENT, WAS NOT THE LOWEST BID RECEIVED. BY LETTER DATED APRIL 22, 1957, ORTHOPEDIC EQUIPMENT COMPANY ADVISED THAT AN ERROR HAD BEEN MADE IN ITS BID IN THE GUARANTEED SHIPPING WEIGHTS, AND THAT THE SHIPPING WEIGHT SHOULD HAVE BEEN SHOWN AS 69 POUNDS PER CONTAINER FOR DOMESTIC PACK AND 72 POUNDS FOR EXPORT PACK. IN AN AFFIDAVIT THE BIDDER'S PURCHASING AGENT, WHO STATES HE HAD PREPARED THE COST DATA AND SHIPPING WEIGHTS USED IN PREPARING THE BIDS, IT IS AVERRED THAT THE WEIGHT OF THE WOOD PER UNIT WAS DETERMINED BY CALCULATING 13.64 BOARD FEET OF ROUGH, GREEN DIMENSION LUMBER AT 4 POUNDS PER BOARD FOOT FOR THE ROUGH STOCK THAT WOULD BE SHIPPED TO THE PLANT, AND THAT "THIS FIGURE WAS ERRONEOUSLY USED IN DETERMINED THE OUTBOUND WEIGHT AND SHOULD HAVE BEEN RECALCULATED TO THE FURNISHED DIMENSION STOCK, WHICH I HAVE CALCULATED TO BE 9.08 BOARD FEET OF KILN DRIED LUMBER HAVING A WEIGHT OF 28.91, WHICH CALCULATION SHOULD HAVE BEEN USED IN DETERMINING THE OUTBOUND SHIPPING WEIGHT OF THE FURNISHED PRODUCT. THE RECALCULATED SHIPPING WEIGHT IS DETERMINED TO BE 34.27 POUNDS PER UNIT.'

OTHER EVIDENCE WAS SUBMITTED BY THE BIDDER IN SUPPORT OF THE ALLEGED ERROR, AND THE BIDDER REQUESTS THAT THE GUARANTEED SHIPPING WEIGHT BE CORRECTED TO 69 POUNDS PER CONTAINER FOR DOMESTIC PACK AND 72 POUNDS FOR EXPORT PACK. IF SUCH CORRECTION IS MADE, THE BIDDER WOULD THEN BECOME THE LOW BIDDER.

AS WE HAVE SAID MANY TIMES, THE QUESTION OF WHETHER A BIDDER MAY BE PERMITTED TO CHANGE HIS BID--- AFTER THE BIDS HAVE BEEN OPENED--- BECAUSE OF AN ERROR ALWAYS PRESENTS A MATTER OF SERIOUS CONCERN, AND THE INTEREST OF THE GOVERNMENT AS WELL AS THE INTEREST OF ALL BIDDERS MUST BE TAKEN INTO CONSIDERATION. IN THE INSTANT CASE, IF THE BID BE CORRECTED, SUCH ACTION WOULD RESULT IN MAKING A BID LOW WHICH WAS NOT LOW AT THE TIME OF THE OPENING. WE BELIEVE THAT SUCH ACTION SHOULD BE PERMITTED ONLY IN THE MOST CLEAR CASES AND THEN ONLY WHERE THERE IS SOMETHING IN THE BID ITSELF WHICH SHOWS THAT THE BID IS OBVIOUSLY ERRONEOUS AND WHAT THE BID WOULD HAVE BEEN BUT FOR THE ERROR.

IN THE INSTANT CASE, WHILE ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD THERE APPEARS NO DOUBT THAT THE BIDDER MADE AN ERROR IN ITS BID AS TO THE GUARANTEED SHIPPING WEIGHT, THERE IS NOTHING TO ESTABLISH WHAT THE BIDDER WOULD HAVE QUOTED BUT FOR THE ERROR. THERE IS CERTAIN EVIDENCE TENDING TO ESTABLISH APPROXIMATELY WHAT THE WEIGHT PER CONTAINER MIGHT HAVE BEEN. HOWEVER, IT IS NOT ESTABLISHED THAT BUT FOR THE ERROR THE BIDDER WOULD HAVE GUARANTEED THE WEIGHTS NOW ALLEGED TO BE THE INTENDED WEIGHTS. IN THIS CONNECTION, IT IS TO BE NOTED THAT THE OTHER BIDDERS' GUARANTEED SHIPPING WEIGHTS VARIED FROM 50 TO 80 POUNDS.

AS STATED IN 17 COMP. GEN. 575, 577, THE BASIC RULE IS, OF COURSE, THAT BIDS MAY NOT BE CHANGED AFTER THEY ARE OPENED, AND THE EXCEPTION PERMITTING A BID TO BE CORRECTED UPON SUFFICIENT FACTS ESTABLISHING THAT A BIDDER ACTUALLY INTENDED TO BID AN AMOUNT OTHER THAN SET DOWN ON THE BID FORM, WHERE THE CONTRACTING OFFICER IS ON NOTICE OF THE ERROR PRIOR TO ACCEPTANCE, DOES NOT EXTEND TO PERMITTING A BIDDER TO RECALCULATE AND CHANGE HIS BID TO INCLUDE FACTORS WHICH HE DID NOT HAVE IN MIND WHEN HIS BID WAS SUBMITTED, OR AS TO WHICH HE HAS SINCE CHANGED HIS MIND.

ACCORDINGLY, YOU ARE ADVISED THAT WE AGREE WITH THE ADMINISTRATIVE DETERMINATION MADE PURSUANT TO THE PROVISIONS OF PARAGRAPH 2-405.2 OF THE ARMED SERVICES PROCUREMENT REGULATION THAT THE BID OF ORTHOPEDIC EQUIPMENT COMPANY MAY NOT BE CORRECTED.

THE ORIGINAL SET OF ENCLOSURES ARE RETURNED HEREWITH. THE DUPLICATE SET IS BEING RETAINED HERE.