B-147935, APR. 27, 1962

B-147935: Apr 27, 1962

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TO THE M-R'S MANUFACTURING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. WERE NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. YOUR BID WAS IN THE AMOUNT OF $8. THE CONTRACTING OFFICER RECEIVED A TELEGRAM FROM YOU STATING THAT A SERIOUS ERROR OCCURRED IN PREPARING YOUR FINAL BID AND REQUESTED CORRECTION BE MADE TO YOUR INTENDED BID PRICE AND THAT A LETTER REQUEST WITH SUPPORTING EVIDENCE OF THE MISTAKE WAS BEING FORWARDED. THERE WAS FURNISHED BY MR. PERMISSION WAS REQUESTED TO CORRECT THE UNIT PRICE SHOWN IN THE BID BY $1. IT IS ALLEGED THAT THE PERSON WHO NORMALLY PREPARED THE DETAILS OF YOUR BIDS WAS BUSY EXPEDITING PRODUCTION UNDER ANOTHER CONTRACT AND THAT MR.

B-147935, APR. 27, 1962

TO THE M-R'S MANUFACTURING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1962, PROTESTING THE DETERMINATION MADE BY THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, IN REFUSING TO CORRECT YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ENG-11-184-61-A-574, ISSUED BY THE U.S. ARMY ENGINEER PROCUREMENT OFFICE, CHICAGO, ILLINOIS.

THE INVITATION REQUESTED BIDS FOR FURNISHING 40 SCRAPERS, EARTH MOVING, 8 CUBIC YARD CAPACITY. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE TWO OTHER BIDS, IN THE AMOUNTS OF $11,694 AND $11,812.50 PER UNIT, WERE NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION. YOUR BID WAS IN THE AMOUNT OF $8,995 PER UNIT.

ON JULY 17, 1961, THE CONTRACTING OFFICER RECEIVED A TELEGRAM FROM YOU STATING THAT A SERIOUS ERROR OCCURRED IN PREPARING YOUR FINAL BID AND REQUESTED CORRECTION BE MADE TO YOUR INTENDED BID PRICE AND THAT A LETTER REQUEST WITH SUPPORTING EVIDENCE OF THE MISTAKE WAS BEING FORWARDED. JULY 19, 1961, THERE WAS FURNISHED BY MR. L. R. SIMMONS, IN PERSON, A NOTARIZED LETTER DATED JULY 18, WITH SUPPORTING DOCUMENTATION, AND PERMISSION WAS REQUESTED TO CORRECT THE UNIT PRICE SHOWN IN THE BID BY $1,875.67, OR FROM $8,995 TO $10,870.67 EACH. IT IS ALLEGED THAT THE PERSON WHO NORMALLY PREPARED THE DETAILS OF YOUR BIDS WAS BUSY EXPEDITING PRODUCTION UNDER ANOTHER CONTRACT AND THAT MR. SIMMONS TOLD HIM THAT HE WOULD HANDLE THE PRICING IN CONNECTION WITH THIS BID. MR. SIMMONS REQUESTED THAT THERE BE PREPARED FOR HIM THE PRICING INFORMATION ON THE BRAKES, T-1 STEEL, MANUAL AND PROVISIONING LISTS, AND THE DOLLY. THIS INFORMATION WAS GIVEN TO MR. SIMMONS. HOWEVER, IN THE HURRY OF PREPARING THE FINAL BID THE SHEET CONTAINING THE COST DATA FOR THE DOLLAR WAS FOLDED UNDER THE PRECEDING SHEETS AND WAS OVERLOOKED AND OMITTED FROM THE FINAL PRICE TABULATION. ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD THE CHIEF OF ENGINEERS DETERMINED THAT IT WAS PROVEN BY CLEAR AND CONVINCING EVIDENCE THAT A MISTAKE HAD BEEN MADE IN YOUR BID, BUT THAT THE EVIDENCE WAS NOT CLEAR AND CONVINCING AS TO THE AMOUNT OF THE INTENDED BID AND THAT, THEREFORE, PURSUANT TO ASPR 2-406.3 (A) (3), PERMISSION WAS GRANTED TO WITHDRAW, BUT NOT TO CORRECT, THE BID.

YOU PROTEST THE DETERMINATION MADE BY THE CHIEF OF ENGINEERS ON THE BASIS THAT IF THE INFORMATION AND DATA SUBMITTED WAS SUFFICIENT TO ESTABLISH THE EXISTENCE OF A MISTAKE IN YOUR BID THE SAME INFORMATION AND DATA WAS JUST AS CLEAR AND CONVINCING AS TO THE MISTAKE AND THE BID ACTUALLY INTENDED HAD THE MISTAKE NOT OCCURRED.

THE BASIC RULE IS THAT BIDS MAY NOT BE WITHDRAWN OR CHANGED AFTER THE TIME FIXED IN THE INVITATION FOR THE OPENING OF THE BIDS. THE EXCEPTION TO SUCH RULE, WHICH PERMITS CORRECTION OF A BID UPON SUFFICIENT EVIDENCE TO ESTABLISH THAT THE BIDDER ACTUALLY INTENDED TO BID AN AMOUNT OTHER THAN THAT SET FORTH IN THE BID, AND CLEAR AND CONVINCING EVIDENCE OF OF THE INTENDED BID, DOES NOT PERMIT A BIDDER TO RECALCULATE OR CHANGE HIS BID TO INCLUDE FACTORS WHICH HE DID NOT HAVE IN MIND WHEN HIS BID WAS SUBMITTED OR AS TO WHICH HE HAS SINCE CHANGED HIS MIND. 17 COMP. GEN. 575, 31 ID. 181. THE DEGREE OF PROOF REQUIRED TO JUSTIFY WITHDRAWAL OF A BID BEFORE AWARD IS IN NO WAY COMPARABLE TO THAT NECESSARY TO ALLOW CORRECTION OF AN ERRONEOUS BID. 36 COMP. GEN. 441.

IN THE INSTANT CASE THE DATA SUBMITTED, TOGETHER WITH A COMPARISON OF YOUR PRICE WITH THE PRICES QUOTED BY THE OTHER TWO BIDDERS, WAS CONSIDERED SUFFICIENT TO WARRANT A CONCLUSION THAT A MISTAKE HAD BEEN MADE IN YOUR BID AS ALLEGED. HOWEVER, SUCH EVIDENCE DOES NOT CLEARLY ESTABLISH THAT YOU "INTENDED" TO SUBMIT A BID OF $10,870.67 OR ANY OTHER FIGURE INSTEAD OF THE $8,995 FIGURE ACTUALLY QUOTED. YOU STATE THAT THE DOLLY COSTS WERE NEVER CONSIDERED IN THE FINAL PRICING AND, THEREFORE, YOU NEVER REACHED THE POINT WHERE YOU ACTUALLY INTENDED ANY SPECIFIC FIGURE AS YOUR BID PRICE FOR THE SCRAPER INCLUDING THE DOLLY. IN VIEW THEREOF WE FIND NO BASIS TO QUESTION THE ADMINISTRATIVE DETERMINATION MADE IN REFUSING TO PERMIT CORRECTION OF YOUR BID.