B-145548, JUN. 20, 1961

B-145548: Jun 20, 1961

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INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6. THE SEVERAL QUESTIONS RAISED WILL BE CONSIDERED IN THE ORDER PRESENTED IN YOUR ABOVE INQUIRY. BY THE SUBJECT INVITATION BIDS WERE SOUGHT ON THE PRODUCTION AND DELIVERY OF A SERIES OF SIX TV FILM SPOT AND SLIDE KITS PURSUANT TO THE TERMS AND CONDITIONS SET FORTH THEREIN. SIX BIDS WERE RECEIVED ON OR BEFORE THE TIME AND DATE SCHEDULE. WAS RECEIVED AT 2:30 P.M. THE BID WAS DISPATCHED AIRMAIL. WAS POSTMARKED BALTIMORE. THAT THE PARCEL SHOULD HAVE BEEN DELIVERED NOT LATER THAN FEBRUARY 19. THAT THE DELAY WAS CAUSED BY A STRIKE OF AIRLINE ENGINEERS AND BY INCLEMENT WEATHER. APPLICABLE FEDERAL PROCUREMENT REGULATIONS THE BID WOULD BE CONSIDERED SINCE DELAY IN DELIVERY WAS NOT ATTRIBUTABLE TO THE BIDDER.

B-145548, JUN. 20, 1961

TO MILNER-FENWICK, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 6, 1961, REQUESTING TO BE ADVISED AS TO THE BASIS FOR THE ACTION TAKEN BY THE OFFICE OF CIVIL AND DEFENSE MOBILIZATION IN THE AWARDING OF A CONTRACT TO ANOTHER BIDDER UNDER INVITATION FOR BIDS NO. AS-61-12. THE SEVERAL QUESTIONS RAISED WILL BE CONSIDERED IN THE ORDER PRESENTED IN YOUR ABOVE INQUIRY.

BY THE SUBJECT INVITATION BIDS WERE SOUGHT ON THE PRODUCTION AND DELIVERY OF A SERIES OF SIX TV FILM SPOT AND SLIDE KITS PURSUANT TO THE TERMS AND CONDITIONS SET FORTH THEREIN. THE INVITATION STIPULATED THAT THE BIDS WOULD BE OPENED AT 1:30 P.M. ON FEBRUARY 20, 1961. SIX BIDS WERE RECEIVED ON OR BEFORE THE TIME AND DATE SCHEDULE. A SEVENTH BID SUBMITTED BY MONUMENTAL FILMS, INCORPORATED, WAS RECEIVED AT 2:30 P.M. ON FEBRUARY 21, 1961. THE BID WAS DISPATCHED AIRMAIL, SPECIAL DELIVERY, AND WAS POSTMARKED BALTIMORE, MARYLAND, FEBRUARY 17, 1961. POST OFFICE OFFICIALS INFORMED THE PROCUREMENT AGENCY THAT NORMAL DELIVERY REQUIRED TWO DAYS, THAT THE PARCEL SHOULD HAVE BEEN DELIVERED NOT LATER THAN FEBRUARY 19, 1961; AND, THAT THE DELAY WAS CAUSED BY A STRIKE OF AIRLINE ENGINEERS AND BY INCLEMENT WEATHER. IN VIEW THEREOF THE CONTRACTING OFFICER DETERMINED THAT UNDER PARAGRAPH 10 (C) OF THE TERMS AND CONDITIONS OF THE INVITATION, AND APPLICABLE FEDERAL PROCUREMENT REGULATIONS THE BID WOULD BE CONSIDERED SINCE DELAY IN DELIVERY WAS NOT ATTRIBUTABLE TO THE BIDDER. WE CONCUR WITH THE ADMINISTRATIVE FINDING THAT SUCH BID PROPERLY WAS FOR CONSIDERATION. 36 COMP. GEN. 370.

WITH RESPECT TO YOUR SECOND QUESTION AS TO THE CORRECTION OF SUCH BID, THE RECORD SHOWS THAT AFTER OPENING OF THE BIDS BUT BEFORE AWARD, MONUMENTAL FILMS NOTIFIED THE ADMINISTRATIVE OFFICE THAT IN THE PREPARATION OF ITS BID A TYPOGRAPHICAL ERROR WAS MADE WITH THE RESULT THAT THE TOTAL AMOUNT OF ITS PROPOSAL WAS SHOWN AS $22,315.20 INSTEAD OF ITS INTENDED QUOTATION OF $32,315.20. IN SUPPORT OF ITS ALLEGATION OF ERROR THE BIDDER REFERRED TO AN ESTIMATED COST SUMMARY PREVIOUSLY FURNISHED WITH CERTAIN INFORMATION REGARDING ITS FACILITIES. AN EXAMINATION OF THE SUBJECT PAPERS AND COST ESTIMATE DISCLOSES CONCLUSIVELY THAT THE MISTAKE WAS MADE AS ALLEGED; THAT THE ITEMIZED COSTS DID NOT CORRESPOND TO THE BID FIGURE OF $22,315.20; AND THAT EXCEPT FOR THE ERROR THE QUOTATION WOULD HAVE BEEN $32,315.20. IN CASES WHERE, AS HERE, CORRECTION DOES NOT AFFECT THE RELATIVE STANDING OF THE BIDDERS, AND SATISFACTORY PROOF HAS BEEN PRESENTED TO ESTABLISH THE EXISTENCE OF A BONA FIDE ERROR AS WELL AS THE INTENDED PRICE, THE COURTS WILL GRANT RELIEF. SEE EDMUND J. RAPPOLI COMPANY V. UNITED STATES, 98 CT.CL. 499. IN ADDITION, A COMPARISON OF THE MONUMENTAL BID WITH THE OTHER PROPOSALS RECEIVED AND WITH PREVIOUS CONTRACT PRICES FOR SIMILAR SERVICES SHOW THE LOW BID TO BE MATERIALLY DISPROPORTIONATE. ACCORDINGLY, WE FIND NO JUSTIFICATION FOR QUESTIONING THE ACTION OF OCDM IN PERMITTING THE INVOLVED CORRECTION.

IN REGARD TO THE THIRD AND FOURTH QUESTIONS RAISED IN YOUR INQUIRY, THE SAMPLE FILMS SUPPLIED BY MONUMENTAL WERE EXAMINED TO ASCERTAIN THE QUALITY OF WORK WHICH THE BIDDER WAS CAPABLE OF PRODUCING. THE FILM SEGMENT FROM "PROJECT VANGUARD," WHICH YOUR ORGANIZATION HAD PRODUCED, WAS NOT REPRESENTED AS A WORK OF THE BIDDER, BUT WAS OFFERED TO DEMONSTRATE ITS PRESENT CAPABILITIES, SINCE THE PERSON RESPONSIBLE FOR THE COLOR ANIMATION WORK ON THE FILM WAS, AT THE TIME OF BIDDING, UNDER CONTRACT TO THAT FIRM. BASED UPON THESE AND OTHER FACTORS EXAMINED, THE CONTRACTING OFFICER FOUND MONUMENTAL FILMS, INCORPORATED, TO HAVE ADEQUATE EQUIPMENT AND PERSONNEL, AND TO BE CAPABLE OF PERFORMING THE DESIRED WORK.

QUESTIONS PERTAINING TO THE QUALIFICATIONS OF A PROPOSED CONTRACTOR ARE FOR DETERMINATION BY THE PROCURING AGENCY INVOLVED AND, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR THE LACK OF ANY REASONABLE BASIS FOR A PARTICULAR FINDING, THIS OFFICE WOULD NOT BE JUSTIFIED IN OBJECTING TO SUCH DETERMINATION. AS TO THIS CASE WE FEEL THAT A BONA FIDE DETERMINATION ADEQUATELY SUPPORTED BY THE RECORD HAS BEEN MADE, WITHOUT ANY EVIDENCE OF BAD FAITH OR PERSONAL PREJUDICE IN THE EXERCISE OF SUCH DISCRETION. THEREFORE, THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE WILL NOT BE DISTURBED.