B-146424, SEP. 18, 1961

B-146424: Sep 18, 1961

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INCORPORATED: FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER ARMY INVITATION FOR BIDS NO. WERE REQUESTED ON 176 ANEMOMETERS WITH MILITARY PACKAGING (OPTION A) OR COMMERCIAL PACKAGING (OPTION B) AND YOUR UNIT PRICE OF $88.90 UNDER OPTION B WAS LOW. EXPLAINED THAT YOUR ORIGINAL BID PRICE WAS BASED ON INFORMATION THAT A COMPONENT COMPASS COULD BE SECURED FOR APPROXIMATELY $2.50 EACH. YOU REQUESTED THAT IF THE EXPLANATION WAS NOT SATISFACTORY YOU BE PERMITTED TO WITHDRAW YOUR BID. ADDITIONAL DETAILS RELATIVE TO THE ERROR WERE FURNISHED IN YOUR LETTER OF APRIL 14. IF THE EVIDENCE IS CLEAR AND CONVINCING ONLY AS TO THE MISTAKE. A DETERMINATION WAS MADE BY THE DEPARTMENT OF THE ARMY THAT THE EVIDENCE SUBMITTED BY YOU ESTABLISHED THE EXISTENCE OF A MISTAKE BUT DID NOT ESTABLISH YOUR INTENDED BID PRICE AND THAT YOU SHOULD THEREFORE BE PERMITTED TO WITHDRAW YOUR BID.

B-146424, SEP. 18, 1961

TO HAYTRONICS, INCORPORATED:

FURTHER REFERENCE IS MADE TO YOUR PROTEST AGAINST THE AWARD OF A CONTRACT TO ANY OTHER CONCERN UNDER ARMY INVITATION FOR BIDS NO. SC-36 039-61-1650- B4-51.

BIDS TO BE OPENED DECEMBER 22, 1960, WERE REQUESTED ON 176 ANEMOMETERS WITH MILITARY PACKAGING (OPTION A) OR COMMERCIAL PACKAGING (OPTION B) AND YOUR UNIT PRICE OF $88.90 UNDER OPTION B WAS LOW. AFTER THE BID OPENING BUT BEFORE AWARD YOU ADVISED THE PROCURING SIGNAL SUPPLY AGENCY BY LETTER OF JANUARY 6, 1961, THAT A CLERICAL ERROR HAD BEEN MADE IN YOUR BID AND YOU REQUESTED THAT THE UNIT PRICE UNDER OPTION B BE CHANGED TO $115. YOUR LETTER OF JANUARY 29, 1961, EXPLAINED THAT YOUR ORIGINAL BID PRICE WAS BASED ON INFORMATION THAT A COMPONENT COMPASS COULD BE SECURED FOR APPROXIMATELY $2.50 EACH, WHEREAS, YOU DISCOVERED AFTER OPENING OF THE BIDS THAT THE COST WOULD BE $25, AND YOU REQUESTED THAT IF THE EXPLANATION WAS NOT SATISFACTORY YOU BE PERMITTED TO WITHDRAW YOUR BID. ADDITIONAL DETAILS RELATIVE TO THE ERROR WERE FURNISHED IN YOUR LETTER OF APRIL 14, 1961, AND ENCLOSURES.

WITH RESPECT TO MISTAKES ALLEGED AFTER OPENING OF BIDS AND PRIOR TO AWARD, PARAGRAPH 2-406.3 (A) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES THAT "WHERE THE BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE; * * *. IF THE EVIDENCE IS CLEAR AND CONVINCING ONLY AS TO THE MISTAKE, BUT NOT AS TO THE INTENDED BID, A DETERMINATION PERMITTING THE BIDDER TO WITHDRAW HIS BID MAY BE MADE.'

ON JUNE 28, 1961, A DETERMINATION WAS MADE BY THE DEPARTMENT OF THE ARMY THAT THE EVIDENCE SUBMITTED BY YOU ESTABLISHED THE EXISTENCE OF A MISTAKE BUT DID NOT ESTABLISH YOUR INTENDED BID PRICE AND THAT YOU SHOULD THEREFORE BE PERMITTED TO WITHDRAW YOUR BID. YOU NOW PROTEST THIS DECISION AND REQUEST THAT AWARD BE MADE TO YOU.

THE RECORD SUFFICIENTLY ESTABLISHES THAT YOUR BID WAS FOUNDED IN ERROR. HOWEVER, ONE OF THE CONDITIONS WHICH HAS BEEN CONSIDERED A PREREQUISITE TO CORRECTION OF ERROR IN AN ADVERTISED BID IS CLEAR AND CONVINCING PROOF OF THE "INTENDED" BID, BASED ON EVIDENCE IN EXISTENCE PRIOR TO BID OPENING. ACTUALLY YOUR BID OF $88.90 WAS THE BID YOU INTENDED TO SUBMIT, BUT WAS BASED ON ERRONEOUS INFORMATION AS TO THE COST OF THE COMPASS. SINCE THE REQUESTED MODIFICATION OF YOUR BID PRICE IS BASED ON COST INFORMATION ACQUIRED AFTER THE BIDS WERE OPENED, IT INVOLVES NOT A CORRECTION BUT A CHANGE, WHICH VIOLATES THE BASIC RULE THAT BIDS MAY NOT BE CHANGED BY RECALCULATION OR OTHERWISE AFTER THE TIME FIXED FOR OPENING. 31 COMP. GEN. 183; 17 ID. 575, 577.

FOR THE REASONS STATED WE CONCLUDE THAT YOUR PROTEST MUST BE DENIED, BUT THAT YOUR BID MAY BE WITHDRAWN.