B-132191, AUG. 22, 1957

B-132191, AUG. 22, 1957

TO MORRILL CONSTRUCTION COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1957, PROTESTING THE CORRECTION, AFTER OPENING AND PRIOR TO AWARD, OF THE LOW BID SUBMITTED PURSUANT TO INVITATION FOR BIDS NO. MD-19-098-57-4 FOR CERTAIN CONSTRUCTION IN CONNECTION WITH THE MURPHY ARMY HOSPITAL.

BIDS WERE OPENED ON APRIL 16, 1957. THE TWO LOW BIDS RECEIVED WERE AS FOLLOWS:

TABLE

BIDDER BASE BID DEDUCTIVE ALTERNATIVE MARTIN W. MANZELLI $18,103 $1,200 MORRILL CONSTRUCTION CO. 24,916 1,750

SHORTLY AFTER OPENING, A REPRESENTATIVE OF THE LOW BIDDER ALLEGED THAT AN ERROR HAD BEEN MADE IN HIS BID IN THAT CERTAIN OF THE COMPONENT PRICES WERE INCORRECTLY ADDED. ON APRIL 18, 1957, THE LOW BIDDER PRESENTED SWORN AFFIDAVITS INDICATING THAT THE ERROR WAS DUE TO THE FAILURE OF A CLERK TO CHECK THE ADDING MACHINE TAPE. NOTARIZED COPIES OF THE WORKSHEETS AND THE ADDING MACHINE TAPE WERE FURNISHED TENDING TO PROVE THAT THE ALLEGED ERROR HAD, IN FACT, BEEN MADE. ON MAY 15, IT WAS DETERMINED BY A REPRESENTATIVE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS THAT:

"THE BIDDER'S WORK SHEETS CLEARLY AND CONVINCINGLY ESTABLISHES BOTH THE EXISTENCE OF THE ERROR AND THE PRICE MARTIN MANZELLI WOULD HAVE BID HAD THE ERROR NOT OCCURRED. ACCORDINGLY, PURSUANT TO ASPR 2-405.2 (A) (2) AND PROVIDED AWARD HAS NOT YET BEEN MADE, THE CONTRACTING OFFICER WILL PERMIT MARTIN MANZELLI TO CORRECT ITS BID PRICE FROM $19,103 TO $20,807. THE BID, AS CORRECTED, WILL BE CONSIDERED ALONG WITH THE OTHER BIDS IN MAKING AWARD.'

IN ACCORDANCE WITH THE DETERMINATION QUOTED ABOVE, AWARD WAS MADE TO THE LOW BIDDER ON HIS BASE BID, AS CORRECTED. (THE DEDUCTIVE ALTERNATE WHICH HAD BEEN WITHDRAWN ON JUNE 10, 1957, WAS NOT CONSIDERED.) YOUR PROTEST IS BASED ON THE CONTENTION THAT THE ERROR SHOULD NOT HAVE BEEN CORRECTED.

PARAGRAPH 2-405.2 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES, IN PERTINENT PART, THAT THE MILITARY DEPARTMENTS, IN CONNECTION WITH MISTAKES IN BIDS OF OTHER THAN AN OBVIOUS OR APPARENT CLERICAL NATURE, ARE AUTHORIZED TO PERMIT THE BIDDER TO CORRECT HIS BID UPON SUBMISSION OF CLEAR AND CONVINCING EVIDENCE ESTABLISHING BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. THE AUTHORITY TO MAKE SUCH CORRECTIONS WAS GRANTED UNDER AND IS MATERIALLY CONSISTENT WITH A DECISION OF OUR OFFICE, DATED JUNE 29, 1954, B 120281.

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. IT HAS CONSISTENTLY BEEN HELD THAT WHERE A MISTAKE IS ALLEGED PROMPTLY AFTER AWARD AND THERE HAS BEEN IMMEDIATELY PRESENTED CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, 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 THE GOVERNMENT MAY HAVE THE BENEFIT OF IT. B-123562, MAY 10, 1955.

THE CLEAR AND CONVINCING NATURE OF THE EVIDENCE ESTABLISHING THE FACT OF THE ERROR AND THE INTENDED BID PRICE WAS PROPERLY DETERMINED IN THIS CASE UNDER DULY DELEGATED AUTHORITY BY THE DESIGNATED REPRESENTATIVE OF THE SECRETARY OF THE ARMY. SINCE THE WEIGHT TO BE GIVEN EVIDENCE IS PRIMARILY A QUESTION OF FACT, WE PERCEIVE NO LEGAL BASIS FOR CONCLUDING THAT THE EVIDENCE IN THIS CASE WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT MODIFICATION OF THE MANZELLI BID UNDER PRESENT CIRCUMSTANCES. THEREFORE, WE MUST CONCLUDE THAT THE LOW BID AS CORRECTED WAS PROPERLY ACCEPTED AND AWARD OF THE CONTRACT MADE PURSUANT THERETO.