B-148078, MAR. 26, 1962

B-148078: Mar 26, 1962

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TO ARROW ELECTRIC COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28. YOUR BIDS AS SUBMITTED WERE NOT THE LOW BIDS UNDER EITHER INVITATION. YOU THEN ALLEGED ERROR IN THAT YOUR BIDS ON THE TWO INVITATIONS WERE REVERSED. THE PROCURING OFFICE DECIDED THAT CORRECTION WAS NOT PERMISSIBLE SINCE CORRECTION WOULD HAVE DISPLACED THE LOW BIDDER UNDER INVITATION NO. 151-12-11-61 AND MADE YOU ELIGIBLE FOR THE AWARD. AWARD WAS MADE TO EDWARD B. A NOTICE TO PROCEED WAS ISSUED TO THE CONTRACTOR ON FEBRUARY 6. THE ACTION OF THE PROCURING OFFICE IN DENYING CORRECTION OF THE BIDS WAS BASED ON SECTION 7-50-129 C2 OF THE PROCUREMENT MANUAL OF THE DEPARTMENT OF HEALTH. ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND BID ITSELF.

B-148078, MAR. 26, 1962

TO ARROW ELECTRIC COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1962, PROTESTING AGAINST AN AWARD TO ANOTHER BIDDER UNDER INVITATION NO. 151-12-11-61 ISSUED ON NOVEMBER 28, 1961, BY THE NATIONAL INSTITUTES OF HEALTH.

THE INVITATION REQUESTED BIDS--- TO BE OPENED AT 1 P.M. DECEMBER 11, 1961 --- FOR INSTALLING METAL PARTITIONS AND MECHANICAL AND ELECTRICAL WORK ON THE GROUND FLOOR OF BUILDING 12, NATIONAL INSTITUTES OF HEALTH, BETHESDA, MARYLAND. THIS INVITATION REQUESTED A BASE BID AND ONE ALTERNATE BID. NOVEMBER 24, 1961, THE NATIONAL INSTITUTES OF HEALTH ISSUED ANOTHER INVITATION, NO. 147-12-11-61, REQUESTING BIDS--- TO BE OPENED ALSO AT 1 P.M. DECEMBER 11, 1961--- FOR CONSTRUCTING TEMPORARY CAT RUN FACILITIES AT THE NATIONAL INSTITUTES OF HEALTH ANIMAL FARM, POOLESVILLE, MARYLAND. THIS INVITATION REQUESTED A BASE BID AND THREE ALTERNATE BIDS.

IN RESPONSE TO INVITATION NO. 151-12-11-61, YOU SUBMITTED A BASE BID OF $23,600 AND THREE ALTERNATE BIDS. UNDER INVITATION NO. 147-12 11-61, YOU SUBMITTED A BASE BID OF $22,932 AND ONE ALTERNATE BID OF $20,000 ($22,932 LESS $2,932). YOUR BIDS AS SUBMITTED WERE NOT THE LOW BIDS UNDER EITHER INVITATION, YOUR BASE BID UNDER INVITATION NO. 151-12-11-61 BEING FOURTH LOW AND YOUR BASE BID UNDER INVITATION NO. 147-12-11-61 BEING THE HIGHEST OF THE EIGHT BIDS RECEIVED. HOWEVER, SINCE YOU SUBMITTED ONE ALTERNATE PRICE ON INVITATION NO. 147-12-11-61, ALTHOUGH THAT INVITATION REQUESTED THREE ALTERNATE PRICES, AND YOU SUBMITTED THREE ALTERNATE PRICES ON INVITATION NO. 151-12-11-61 ALTHOUGH THAT INVITATION CALLED FOR ONLY ONE ALTERNATE PRICE, THE CONTRACTING OFFICER ON DECEMBER 11, 1961, REQUESTED CONFIRMATION OF YOUR BID BY TELEPHONE. YOU THEN ALLEGED ERROR IN THAT YOUR BIDS ON THE TWO INVITATIONS WERE REVERSED. IN YOUR LETTERS DATED DECEMBER 11 AND DECEMBER 12, 1961, YOU FURNISHED WORKSHEETS AND OTHER EVIDENCE SUPPORTING YOUR ALLEGATION OF ERROR AND YOU REQUESTED CORRECTION OF BOTH BIDS. HOWEVER, THE PROCURING OFFICE DECIDED THAT CORRECTION WAS NOT PERMISSIBLE SINCE CORRECTION WOULD HAVE DISPLACED THE LOW BIDDER UNDER INVITATION NO. 151-12-11-61 AND MADE YOU ELIGIBLE FOR THE AWARD. THEREFORE, AWARD WAS MADE TO EDWARD B. FRIEL, INCORPORATED, ON JANUARY 22, 1962, AND A NOTICE TO PROCEED WAS ISSUED TO THE CONTRACTOR ON FEBRUARY 6, 1962.

THE ACTION OF THE PROCURING OFFICE IN DENYING CORRECTION OF THE BIDS WAS BASED ON SECTION 7-50-129 C2 OF THE PROCUREMENT MANUAL OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, WHICH PROVIDES AS FOLLOWS:

"A DETERMINATION MAY BE MADE PERMITTING THE BIDDER TO CORRECT HIS BID WHERE THE BIDDER REQUESTS PERMISSION TO DO SO AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. HOWEVER, IF SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER ACCEPTABLE BIDS, THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED, ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND BID ITSELF. 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.'

THE ABOVE-QUOTED PROVISION CONFORMS TO SECTION 1-2.406-3 (A) (2) OF THE FEDERAL PROCUREMENT REGULATIONS.

IN 37 COMP. GEN. 210 IT WAS HELD (QUOTING SYLLABUS):

"TO PERMIT A BIDDER AFTER OPENING OF BIDS TO CORRECT AN ERROR, WHICH WAS NOT OBVIOUS ON THE FACE OF THE BID, SO THAT THE CORRECTED BID BECAME THE LOWEST BID AND DISPLACED ONE OR MORE BIDS WHICH HAD BEEN LOW WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND CONTRARY TO THE INTEREST OF THE GOVERNMENT IN THE PRESERVATION AND MAINTENANCE OF THE COMPETITIVE BIDDING SYSTEM.'

IN THAT DECISION IT WAS STATED (PAGE 212):

"THE STATUTES REQUIRING ADVERTISEMENT FOR BIDS AND THE AWARD OF CONTRACT 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 MATTER, IT APPEARS TO BE SATISFACTORILY ESTABLISHED THAT THERE WAS AN ERROR IN YOUR BID UNDER INVITATION NO. 151-12-11-61. HOWEVER, THE AMOUNT OF YOUR INTENDED BID WAS NOT ASCERTAINABLE ON THE FACE OF THE INVITATION AND BID BUT WOULD REQUIRE RESORT TO EXTRANEOUS EVIDENCE.

FOR THE REASONS ABOVE SET FORTH, IT IS CONCLUDED THAT THERE IS NO VALID BASIS FOR OBJECTION BY OUR OFFICE TO THE ACTION OF THE PROCURING OFFICE IN DENYING CORRECTION OF YOUR BID AND MAKING THE AWARD TO ANOTHER BIDDER.