B-143081, JUN. 21, 1960

B-143081, JUN. 21, 1960

TO MR. O. BOHNEN, CONTRACTING OFFICER, VETERANS ADMINISTRATION HOSPITAL:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 1, 1960 (5247-134), RELATING TO A MISTAKE IN BID ALLEGED BY THE DAIRYMEN'S LEAGUE COOPERATIVE ASSOCIATION, INC., 720 SIXTH AVENUE, TROY, NEW YORK, UNDER INVITATION FOR BIDS NO. 61-12, DATED MAY 9, 1960, ISSUED BY THE SUPPLY DIVISION OF YOUR AGENCY. AFTER SETTING FORTH THE FACTS CONCERNING THE ALLEGED ERROR, YOU REQUESTED OUR ADVICE AS TO WHETHER THE UNIT PRICE AS TO ITEM 166 OF THE INVITATION MAY BE CHANGED AS REQUESTED BY THE BIDDER.

THE RECORD SHOWS THAT BY THE CITED INVITATION BIDS WERE REQUESTED--- TO BE OPENED AT 2:00 P.M. ON MAY 27, 1960--- FOR FURNISHING VARIOUS QUANTITIES OF DAIRY PRODUCTS. AMONG THE ITEMS INCLUDED IN THE INVITATION WAS ITEM 166 (NOT INCLUDED UNDER ANY OF THE SEVERAL "GROUPS" SET FORTH IN THE INVITATION) FOR FURNISHING 3,780 GALLONS OF PASTEURIZED, HOMOGENIZED, HALF-AND-HALF IN 3/4 OUNCE PAPER CONTAINERS WITH LIDS, 40 CONTAINERS PER TRAY, 6 TRAYS PER CASE. AS TO THIS ITEM THE DAIRYMEN'SLEAGUE COOPERATIVE ASSOCIATION, INC., SUBMITTED A UNIT PRICE OF $1.69 PER GALLON, WITH AN EXTENDED TOTAL PRICE OF $6,388.20.

IT WAS REPORTED IN YOUR LETTER THAT REPLIES WERE RECEIVED FROM SIX VENDORS AND THAT THE BIDS WERE OPENED AT THE INDICATED TIME; THAT YOU HAD HAD NO PRIOR EXPERIENCE WITH ITEM 166 AND SINCE YOU KNEW IT COULD BE FURNISHED BY ONLY A FEW CONCERNS BECAUSE OF THE SPECIAL EQUIPMENT REQUIRED, IT WAS LISTED SEPARATELY FROM THE REGULAR GROUPS; THAT ONLY TWO CONCERNS--- THE DAIRYMEN'S LEAGUE AND THE BORDEN COMPANY--- SUBMITTED BIDS FOR THIS SMALL PACKAGING; AND THAT WHEN THE BIDS WERE OPENED AND READ ALOUD BY THE CONTRACTING OFFICER, THERE WERE NO COMMENTS FROM ANY OF THE REPRESENTATIVES ON THE PRICES QUOTED BY THEIR FIRMS OR FROM COMPETITOR FIRMS.

YOU REPORTED FURTHER THAT AT APPROXIMATELY 4:00 P.M. ON THE BID OPENING DATE, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM THE DAIRYMEN'S LEAGUE ALLEGING AN ERROR IN ITS UNIT BID PRICE FOR ITEM 166. AS THE RESULT OF BEING REQUIRED TO CONFIRM THE ALLEGED ERROR IN WRITING, THE DAIRYMEN'S LEAGUE BY LETTER OF MAY 31, 1960, SUBMITTED ITS "ORIGINAL WORKSHEET" SHOWING A PURPORTED INTENDED UNIT BID PRICE OF $2.69 PER GALLON WHICH, IT WAS ALLEGED, SHOULD HAVE BEEN INSERTED IN THE BID FORM RATHER THAN THE UNIT BID PRICE OF $1.69 PER GALLON. IT WAS STATED ALSO THAT ITEM 166 WAS NEW TO YOUR HOSPITAL AND THAT YOU HAD NO PRIOR EXPERIENCE WHICH WOULD REQUIRE QUESTIONING THE DISCREPANCY BETWEEN THE BID OF THE DAIRYMEN'S LEAGUE--- $1.69 PER GALLON--- AND THE BID SUBMITTED BY THE BORDEN COMPANY--- $2.907 PER GALLON.

IT MAY BE POINTED OUT, IN THE FIRST INSTANCE, THAT THE "ORIGINAL WORKSHEET" SUBMITTED BY THE DAIRYMEN'S LEAGUE CONTAINS NO REFERENCE TO ITEM 166. HOWEVER, THE NEXT FIGURES ON THE SHEET APPEAR TO RELATE TO CHEESE AND TO CORRESPOND TO THE AMOUNT BID ON THAT ARTICLE UNDER ITEM 154, WHICH IS THE NEXT ITEM ON PAGE 9 OF THE BID AFTER THE QUESTIONED ITEM. ALSO, THE COMPUTATIONS APPEAR TO INCLUDE A COST OF ?2881 FOR 43 CUPS AND LIDS (43 BEING THE NUMBER OF 3/4 OUNCE CUPS REQUIRED FOR A QUART OF LIQUID), AND THIS COST IS INCLUDED IN A TOTAL OF ?6725 DESIGNATED AS A PER QUART PRICE, WHICH WOULD PROPERLY PRODUCE A PRICE OF $2.69 PER GALLON. IS ALSO NOTED THAT A COST OF ?2881 PER QUART, OR $1.1524 PER GALLON, FOR THE CUPS, ADDED TO THE PRICE OF $1.52 PER GALLON QUOTED FOR HALF-AND-HALF IN HALF-GALLON PAPER CONTAINERS, WOULD RESULT IN A FIGURE OF $2.6724. THE LIGHT OF THESE FIGURES, THE STATEMENT BY DAIRYMEN'S LEAGUE THAT THE COMPUTATION ON THE WORKSHEET REPRESENTS ITS INTENDED UNIT BID PRICE AND THAT IT WAS THROUGH ERROR THAT THE PRICE OF $1.69 WAS CARRIED INTO THE BID, WILL BE ACCEPTED BY OUR OFFICE AS SUFFICIENT EVIDENCE OF THE ERROR. IN THIS CONNECTION IT HAS BEEN NOTED THAT OF THE FIGURES "2.69" APPEARING ON THE WORKSHEET, ONLY THE LAST TWO ARE PLAINLY SET DOWN, THUS GIVING RISE TO THE POSSIBILITY OF ERROR IN CARRYING THEM INTO THE BID FORM.

IT HAS CONSISTENTLY BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT WHEN A MISTAKE IS PROMPTLY ALLEGED AFTER THE BID OPENING AND THERE HAS BEEN IMMEDIATELY PRESENTED CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, HOW IT OCCURRED, AND WHAT THE BID PRICE WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTERESTS OF THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED, IF SUCH CORRECTION WOULD NOT AFFECT THE RELATIVE STANDING OF OTHER BIDDERS, SO THAT THE GOVERNMENT MAY HAVE THE BENEFIT THEREOF. B-123562, DATED MAY 10, 1955, AND 9 COMP. GEN. 339.

IT IS OUR VIEW THAT THE FACTS IN THIS CASE ARE SUCH AS TO BRING IT WITHIN THE PURVIEW OF THE CITED DECISIONS. THERE IS NO INDICATION THAT THE CLAIM OF ERROR WAS MADE FOR THE PURPOSE OF OBTAINING SOME UNDUE ADVANTAGE OR OF AVOIDING THE CONSEQUENCES OF AN ILL-ADVISED BID. IN THE CIRCUMSTANCES, WE FEEL THAT THE BID SHOULD BE CORRECTED AND AS CORRECTED CONSIDERED FOR AWARD.