B-136360, JULY 29, 1958, 38 COMP. GEN. 76

B-136360: Jul 29, 1958

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BIDS - MISTAKES - CORRECTION - EVIDENCE OF ERROR ALTHOUGH EVIDENCE SUBMITTED AFTER OPENING OF BIDS INDICATES THAT THE BIDDER WHO WAS LOWEST FOR SUPPLYING MATERIAL TO ONE OF SEVERAL DESTINATIONS LISTED IN THE INVITATION MADE A MISTAKE IN QUOTING F.O.B. NOTWITHSTANDING THE BIDDER'S CONTENTION THAT THE PRICES WERE INTENDED TO APPLY REGARDLESS OF DESTINATION. RESULTS IN SUCH AN INDEFINITE AND SPECULATIVE BID AS TO THE PRICE INTENDED THAT CORRECTION OF THE BID IS NOT JUSTIFIED. 1958: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 3. PROTESTING THE REJECTION OF YOUR BID WHICH WAS SUBMITTED IN RESPONSE TO INVITATION NO. BIDS WERE REQUESTED. WHILE BIDDERS WERE ADVISED TO QUOTE PRICES BASED ON DELIVERY F.O.B.

B-136360, JULY 29, 1958, 38 COMP. GEN. 76

BIDS - MISTAKES - CORRECTION - EVIDENCE OF ERROR ALTHOUGH EVIDENCE SUBMITTED AFTER OPENING OF BIDS INDICATES THAT THE BIDDER WHO WAS LOWEST FOR SUPPLYING MATERIAL TO ONE OF SEVERAL DESTINATIONS LISTED IN THE INVITATION MADE A MISTAKE IN QUOTING F.O.B. ORIGIN INSTEAD OF F.O.B. DESTINATION, THE FAILURE OF THIS BIDDER TO INSERT BID PRICES FOR DELIVERY OF SPECIFIED QUANTITIES TO EACH OF THE SEVERAL DESTINATIONS, NOTWITHSTANDING THE BIDDER'S CONTENTION THAT THE PRICES WERE INTENDED TO APPLY REGARDLESS OF DESTINATION, RESULTS IN SUCH AN INDEFINITE AND SPECULATIVE BID AS TO THE PRICE INTENDED THAT CORRECTION OF THE BID IS NOT JUSTIFIED.

TO THE WORCESTER SHOE COMPANY, JULY 29, 1958:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 3, 1958, WITH ENCLOSURES, PROTESTING THE REJECTION OF YOUR BID WHICH WAS SUBMITTED IN RESPONSE TO INVITATION NO. QM/CTM/-36-243-58-756, ISSUED APRIL 15, 1958, BY THE MILITARY CLOTHING AND TEXTILE SUPPLY AGENCY, PHILADELPHIA QUARTERMASTER DEPOT.

BY THE INVITATION REFERRED TO, BIDS WERE REQUESTED--- TO BE OPENED MAY 5, 1958--- FOR THE MANUFACTURE AND DELIVERY OF 100,212 PAIRS OF LEATHER COMBAT BOOTS TO NEW CUMBERLAND, PENNSYLVANIA; OGDEN, UTAH; MEMPHIS, TENNESSEE; AND ATLANTA, GEORGIA. WHILE BIDDERS WERE ADVISED TO QUOTE PRICES BASED ON DELIVERY F.O.B. DESTINATION ONLY, YOUR BID WAS SUBMITTED ON AN F.O.B. ORIGIN BASIS, AS FOLLOWS: 5,000 PR., 6.28 FOB ORIGIN, $31,400.00. 5,000 PR., 6.40 FOB ORIGIN, $32,000.00. 30,000 PR., 6.48 FOB ORIGIN, $194,400.00.

BY TELEGRAM RECEIVED BY THE CONTRACTING AGENCY PRIOR TO THE OPENING OF BIDS YOU REDUCED THE ST ITEM OF YOUR BID BY 15 CENTS PER PAIR AND THE 2ND ITEM BY 5 CENTS PER PAIR, THE 3RD ITEM TO REMAIN UNCHANGED. OTHER BIDS PRICES RECEIVED RANGED AS FOLLOW:

A. NEW CUMBERLAND GENERAL DEPOT, FROM $6.17 TO $7.75.

B. UTAH GENERAL DEPOT, FROM $6.76 TO $7.93.

C. MEMPHIS GENERAL DEPOT, FROM $6.03 TO $7.75 (FOR 2,000).

D. ATLANTA GENERAL DEPOT, FROM $5.995 TO $7.75.

UPON THE OPENING OF BIDS, IT WAS NOTED BY THE CONTRACTING OFFICER THAT IT APPEARED TO BE NONRESPONSIVE SINCE IT WAS SUBMITTED ON AN F.O.B. ORIGIN BASIS RATHER THAN F.O.B. DESTINATION AS REQUIRED BY THE TERMS OF THE INVITATION FOR BIDS. BY TELEGRAM DATED MAY 6, 1958, AND A CONFIRMING LETTER OF THE SAME DATE, YOUR MR. MURPHY STATED THAT HE HAD BEEN ADVISED THAT YOUR BID WAS CONSIDERED AS NONRESPONSIVE BECAUSE OF A TYPOGRAPHICAL ERROR IN BIDDING F.O.B. ORIGIN INSTEAD OF F.O.B. DESTINATION, AND REQUESTED THAT THE MATTER BE TREATED AS A "MISTAKE IN BID.' IN SUPPORT OF THE ALLEGATION OF MISTAKE IN YOUR BID YOUR SUBMITTED AFFIDAVITS AND WORKSHEETS WHICH DEMONSTRATE RATHER CONCLUSIVELY THAT YOU ERRONEOUSLY INSERTED "F.O.B. ORIGIN" WHEN "F.O.B. DESTINATION" WAS INTENDED.

ON LINE 35 OF YOUR COST SHEET ON THE SUBJECT INVITATION APPEARS AN ITEM ENTITLED," TRANSPORTATION CARLOAD RATE 10.1100.' ON LINE 38 APPEARS " TOTAL MATERIAL COST AND TRUCK RATE 4.2465.' THE COST SHEET, THEREFORE, INDICATES THAT THE BID PRICE WAS BASED AMONG OTHER THINGS, UPON A TRANSPORTATION COST OF 11 CENTS PER PAIR AND THAT HIS, IN TURN, WAS BASED UPON TRUCKLOAD RATES. UPON BEING ASKED ABOUT THE FREIGHT RATE OF 11 CENTS PER PAIR, MR. MURPHY STATED THAT THAT FIGURE RESULTED FROM A TELEPHONE CONVERSATION WITH A REPRESENTATIVE OF THE ASSOCIATED TRANSPORT COMPANY. IN A LETTER DATED MAY 9, 1958, THE SAID TRANSPORTATION COMPANY ADVISED THE CONTRACTING OFFICER THAT IT HAD QUOTED RATES TO YOUR FIRM ON APRIL 23, 1958, FOR NEW CUMBERLAND, PENNSYLVANIA; ATLANTA, GEORGIA; AND MEMPHIS, TENNESSEE, BUT NOT FOR OGDEN, UTAH.

WHEN THE BIDS WERE EVALUATED IT WAS FOUND THAT YOUR BID, IF RESPONSIVE, WOULD BE THE LOWEST ONLY AS TO DELIVERIES TO UTAH GENERAL DEPOT. ACCORDINGLY, YOU WERE ASKED HOW A FREIGHT RATE OF 11 CENTS PER PAIR WAS DETERMINED WHEN RATES FOR ONLY THREE DESTINATIONS WERE REQUESTED (NOT INCLUDING UTAH), WHEREUPON YOU STATED THAT YOU ANTICIPATED USING MICKEY'S EXPRESS OF MILLBURY, MASSACHUSETTS, FOR THE UTAH SHIPMENT. THAT CONCERN VERIFIED THE FACT THAT IT HAS ORALLY QUOTED YOU A TRUCKLOAD RATE OF $960 FOR DELIVERY TO OGDEN, UTAH,"AND CONSIDERABLY LESS TO THE OTHER POINTS INVOLVED.' SUBSEQUENTLY, YOUR MR. MURPHY SUBMITTED A SIGNED STATEMENT TO THE EFFECT THAT THE THREE BID PRICES SUBMITTED WERE FOR ANY OF THE FOUR DESTINATIONS.

THE CONTRACTING OFFICER REPORTS THAT A CHECK OF THE APPLICABLE FREIGHT RATES INDICATES AN AVERAGE OF $0.114 PER PAIR FOR SHIPMENT TO THE THREE POINTS DISCUSSED WITH ASSOCIATED TRANSPORT WHICH FIGURE CLOSELY APPROXIMATES THE $0.11 FIGURE ON YOUR WORKSHEET. IN ADDITION, THE LOWEST APPLICABLE ESTABLISHED TRUCKLOAD RATE TO OGDEN, UTAH, IS REPORTED TO BE $0.34320 PER PAIR AND THE RATE PER PAIR FOR THE FIGURE GIVEN BY MICKEY'S EXPRESS FOR LEASING A TRUCK TO UTAH IS $0.208. THUS, THE UTILIZATION OF EITHER OF THESE LATTER TWO RATES WOULD RESULT IN AN AVERAGE RATE CONSIDERABLY ABOVE THE WORKSHEET FIGURE OF $0.11. SINCE YOUR PREVIOUS BIDS HAD ALWAYS BEEN SUBMITTED ON AN F.O.B. ORIGIN BASIS, AND IN VIEW OF THE INFORMATION WHICH YOU SUBMITTED IN SUPPORT OF THE ALLEGATION OF MISTAKE, THE CONTRACTING OFFICER CONCLUDED THAT THE WORDS "F.O.B. ORIGIN" WERE INSERTED IN THE BID THROUGH ERROR AND THAT AN F.O.B. DESTINATION PRICE WAS INTENDED. HOWEVER, HE REACHED THE FURTHER CONCLUSION THAT YOUR STATEMENT THAT THE PRICES WERE INTENDED TO APPLY REGARDLESS OF DESTINATION IS NOT SUPPORTED BY THE EVIDENCE IN VIEW OF YOUR STATEMENT THAT THE ?11 RATE WAS BASED ON CONVERSATION WITH ASSOCIATED TRANSPORT, WHICH QUOTED ONLY ON THREE DESTINATIONS, AND THE FACT THAT FREIGHT TO UTAH WOULD RESULT IN A MUCH HIGHER FIGURE. ACCORDINGLY, YOUR BID WAS DISREGARDED, IN CONFORMANCE WITH APPLICABLE PROCUREMENT REGULATIONS, IT BEING STATED BY THE CONTRACTING OFFICER THAT "THE EVIDENCE IS NOT SUFFICIENTLY CLEAR AND CONVINCING THAT SUBJECT BID PRICES WERE INTENDED TO INCLUDE SHIPMENTS TO UTAH GENERAL DEPOT.'

THE STATUTES REQUIRING ADVERTISEMENT 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. IN THIS CONNECTION, OUR OFFICE AND THE COURTS HAVE PLACED CERTAIN LIMITATIONS AGAINST THE MODIFICATION OF BIDS AFTER OPENING SO AS TO PRECLUDE ANY BIDDER FROM OBTAINING ANY ADVANTAGE AFTER KNOWLEDGE OF THE OTHER BIDS SUBMITTED. IN CERTAIN CASES WHERE A MISTAKE HAS BEEN ALLEGED PROMPTLY AFTER OPENING BIDS BUT BEFORE AWARD OF THE CONTRACT, AND THERE HAS BEEN A TIMELY PRESENTATION OF CONVINCING EVIDENCE THAT A MISTAKE WAS MADE, ITS NATURE, HOW IT OCCURRED, AND WHAT THE BID PRICE WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THIS OFFICE HAS PERMITTED THE BID TO BE CORRECTED. THESE CASES HAVE BEEN RELATIVELY FEW IN NUMBER, AND THE ACTION HAS BEEN TAKEN ONLY WHERE THE EVIDENCE SUBMITTED ESTABLISHES BEYOND ALL DOUBT THE ACTUAL INTENTION OF THE BIDDER. 37 COMP. GEN. 210. IN THE PRESENT CASE, WHILE IT IS CLEAR THAT YOU MADE A MISTAKE IN QUOTING F.O.B. ORIGIN RATHER THAN F.O.B. DESTINATION, YOUR FAILURE TO INSERT YOUR BID PRICES IN THE SPACES PROVIDED THEREFOR IN THE INVITATION (ITEMS 1 A, B, C, AND D FOR INDIVIDUAL PRICES FOR DELIVERY OF SPECIFIED QUANTITIES TO EACH OF THE FOUR DESTINATIONS) RESULTED IN SUCH AN INDEFINITE BID AS TO MAKE IT WHOLLY SPECULATIVE FROM AN EXAMINATION OF THE BID ITSELF AND YOUR WORKSHEET AS TO WHAT YOU INTENDED WITH REGARD TO THE UTAH GENERAL DEPOT DELIVERY. ACCORDINGLY, WE FEEL THAT YOUR STATEMENT, THAT THE THREE BID PRICES WERE FOR ANY OF THE FOUR DESTINATIONS, WAS NOT SO CONCLUSIVELY PROVEN AS TO JUSTIFY CORRECTION OF THE BID.

IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO PROPER BASIS ON WHICH WE WOULD BE JUSTIFIED IN HOLDING THAT THE ADMINISTRATIVE ACTION IN DISREGARDING YOUR BID WAS ILLEGAL OR IMPROPER.