B-144298, OCT. 28, 1960

B-144298, OCT. 28, 1960

TO MR. J. N. KLINE, CONTRACTING OFFICER, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1960, FILE REFERENCE FNF1, REQUESTING A DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY BURRELL METAL PRODUCTS CORPORATION TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. FN- 1F-26140-A-7-15-60.

THE BIDS RECEIVED IN RESPONSE TO THE INVITATION, COVERING GENERAL SERVICES ADMINISTRATION REQUIREMENTS FOR STEEL PARTITIONS FOR THE PERIOD NOVEMBER 1, 1960, THROUGH OCTOBER 31, 1961, WERE OPENED AT 11:00 A.M., ON JULY 29, 1960, AS SCHEDULED. THE INVITATION PROVIDED THAT AWARD WOULD BE MADE IN THE AGGREGATE FOR GROUPS I THROUGH IX ON A ZONE BASIS, AND THAT THE LOW AGGREGATE BIDDER WOULD BE DETERMINED BY MULTIPLYING THE ZONE TOTAL FOR EACH GROUP BY THE APPLICABLE WEIGHT FACTOR AND ADDING ALL RESULTANT EXTENSIONS.

BURRELL METAL PRODUCTS CORPORATION SUBMITTED A BID ON ALL ITEMS, IN ALL GROUPS, FOR ALL 10 ZONES, ON AN ALL OR NONE BASIS. THE CORPORATION'S BID AS SUBMITTED WAS NOT LOW AS TO ANY OF THE ZONES. BY TELEGRAM OF JULY 29 AND LETTER OF AUGUST 1, 1960, THE BIDDER ALLEGES THAT AN ERROR HAD BEEN MADE IN ITS BID ON ITEM 15, GROUP V, IN THAT THE PRICES QUOTED SHOULD HAVE BEEN CENTS RATHER THAN DOLLARS. WE WILL HEREINAFTER REFER ONLY TO THE F.O.B. ORIGIN PRICE, AS THE SAME PRINCIPLE IS EQUALLY APPLICABLE TO ALL ZONES. THE BID SHOWED A PRICE OF $30, AND IT IS ALLEGED THAT THE PRICE SHOULD HAVE BEEN $0.30. THE BIDDER REQUESTS THAT THE BID BE CORRECTED AND, IF THE BID SHOULD BE CORRECTED, IT WOULD BECOME THE LOWEST BID FOR ALL ZONES IN THE AGGREGATE.

IN DECISION OF SEPTEMBER 24, 1957, 37 COMP. GEN. 210, INVOLVING A SIMILAR SITUATION, IT WAS STATED:

"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 CERTAIN CASES WHERE A MISTAKE HAS BEEN ALLEGED PROMPTLY AFTER OPENING OF 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. INSOFAR AS THE CASES HAVE INVOLVED CORRECTIONS TO PERMIT INCREASES IN LOW BIDS, WHICH DID NOT AFFECT THE RELATIVE STANDING OF OTHER BIDDERS, THEY ARE IN LINE WITH THE DECISIONS OF THE COURTS WHICH HAVE ALLOWED ADDITIONAL COMPENSATION TO A LOW BID CONTRACTOR WHO, THOUGH REFUSED PERMISSION ADMINISTRATIVELY TO CORRECT HIS BID, HAS BEEN ABLE TO PRESENT SATISFACTORY PROOF THAT HIS BID WAS ERRONEOUS, TOGETHER WITH A CLEAR SHOWING AS TO WHAT HE INTENDED TO BID. EDMUND J. RAPPOLI COMPANY, INC. V. UNITED STATES, 98 C.CLS. 499.

"HOWEVER, WE HAVE ALMOST NEVER PERMITTED A CORRECTION OF AN ERROR IN BID WHICH WOULD RESULT IN A BID NOT THE LOWEST SUBMITTED BECOMING LOWEST, AND THE ONLY RECENT CASE INVOLVING SUCH A SITUATION, B-128175, JUNE 19, 1956, WAS ONE IN WHICH NOT ONLY THE ERROR BUT THE AMOUNT OF THE INTENDED BID WAS ASCERTAINABLE ON THE FACE OF THE INVITATION AND BID, SO THAT RESORT TO THE BIDDER'S WORK PAPERS OR OTHER EXTRANEOUS EVIDENCE WAS NOT ESSENTIAL. WHERE CORRECTION IS ALLOWED IN A BID WHICH IS ON ITS FACE THE LOWEST RECEIVED, AND THE CORRECTION DOES NOT MAKE IT HIGHER THAN THE NEXT LOWEST BID, THE RIGHTS OF OTHER BIDDERS ARE NOT SUBSTANTIALLY AFFECTED; BUT IN A CASE SUCH AS HERE PRESENTED, WHERE A DOWNWARD CORRECTION WOULD RESULT IN DISPLACEMENT OF ONE OR MORE OTHER BIDDERS, WE FEEL THAT THE INTEREST OF THE GOVERNMENT IN PRESERVING AND MAINTAINING THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT THE RIGHTS OF OTHER BIDDERS BE CONSIDERED AS CALLING FOR DENIAL OF THE CORRECTION, EXCEPT WHERE IT CAN BE ASCERTAINED SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF.'

IN THE INSTANT CASE, THE PRICES QUOTED BY THE SIX OTHER BIDDERS ON ITEM 15, GROUP V (F.O.B. ORIGIN), ARE $0.65, $1.02, $1.05, $1.09, $1.45, AND $1.95.

IN VIEW OF THE NATURE OF THE ITEMS INVOLVED AND THE AMOUNTS OF THE OTHER BIDS RECEIVED, IT IS CLEAR THAT THE PRICE OF $30, QUOTED BY BURRELL METAL PRODUCTS CORPORATION, IS ERRONEOUS. HOWEVER, THE BID IS REGULAR ON ITS FACE AND THERE IS NOTHING CONTAINED THEREIN FROM WHICH IT CAN BE DETERMINED THAT THE PRICE SHOULD HAVE BEEN $0.30 RATHER THAN SOME OTHER FIGURE MORE IN LINE WITH THE PRICES QUOTED BY OTHER BIDDERS FOR THE PARTICULAR ITEM. FURTHERMORE, THE PARTICULAR GROUP CARRIERS THE HIGHEST WEIGHT OF ANY OF THE GROUPS AND, THEREFORE, IS MOST IMPORTANT IN DETERMINING THE LOW AGGREGATE BIDDER.

ACCORDINGLY, SINCE IT CANNOT BE DETERMINED WITH CERTAINTY WHAT THE BID ON ITEM 15, GROUP V, SHOULD HAVE BEEN FROM THE BID ITSELF, YOU ARE ADVISED THAT THE BID OF BURRELL METAL PRODUCTS ..END :