B-148733, JUN. 8, 1962

B-148733: Jun 8, 1962

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ESQUIRE: REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 23. YOU CONTEND THAT UNBALANCED BIDDING WAS EMPLOYED AND THAT IT WAS THEREFORE IMPOSSIBLE TO PRODUCE CREDIBLE EVIDENCE SHOWING THAT ANY PRICE OTHER THAN THAT STATED IN THE BID WAS INTENDED. ARE AUTHORIZED TO PERMIT CORRECTION OF A BID UPON SUBMISSION OF CLEAR AND CONVINCING EVIDENCE ESTABLISHING BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. THE AUTHORITY TO MAKE SUCH CORRECTIONS WAS GRANTED UNDER AND IS MATERIALLY CONSISTENT WITH OUR OFFICE DECISION B-120281 OF JUNE 29. THE GENERAL RULE IS THAT A BIDDER MAY NOT CHANGE HIS BID AFTER THE DATE OF OPENING TO THE PREJUDICE OF OTHER BIDDERS. THE STATUTES REQUIRING ADVERTISING 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.

B-148733, JUN. 8, 1962

FREDERICK T. M. CROWLEY, ESQUIRE:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 23, 1962, AND LETTERS OF APRIL 24 AND 30, 1962, PROTESTING FOR CHADWICK AND BUCHANAN AGAINST THE CORRECTION OF THE LOW BID SUBMITTED BY CLIFFORD C. BONG AND CO. UNDER INVITATION CIVENG-04-353-62-14.

TO SUMMARIZE THE PROTEST, YOU CONTEND THAT UNBALANCED BIDDING WAS EMPLOYED AND THAT IT WAS THEREFORE IMPOSSIBLE TO PRODUCE CREDIBLE EVIDENCE SHOWING THAT ANY PRICE OTHER THAN THAT STATED IN THE BID WAS INTENDED. FURTHER, YOU EXPRESS THE OPINION THAT ALLOWING CORRECTION WEAKENS THE COMPETITIVE BIDDING SYSTEM AND THAT THE BIDDER SHOULD BE REQUIRED EITHER TO PERFORM AT THE ORIGINAL BID PRICE OR TO WITHDRAW.

PARAGRAPH 2-406.3 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES, IN PERTINENT PART, THAT THE MILITARY DEPARTMENTS, IN CONNECTION WITH MISTAKES IN BIDS OF OTHER THAN AN OBVIOUS OR APPARENT CLERICAL NATURE, ARE AUTHORIZED TO PERMIT CORRECTION OF A BID UPON SUBMISSION OF CLEAR AND CONVINCING EVIDENCE ESTABLISHING BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. THE AUTHORITY TO MAKE SUCH CORRECTIONS WAS GRANTED UNDER AND IS MATERIALLY CONSISTENT WITH OUR OFFICE DECISION B-120281 OF JUNE 29, 1954.

THE GENERAL RULE IS THAT A BIDDER MAY NOT CHANGE HIS BID AFTER THE DATE OF OPENING TO THE PREJUDICE OF OTHER BIDDERS. NEVERTHELESS, THE STATUTES REQUIRING ADVERTISING 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. THEREFORE, IT HAS CONSISTENTLY BEEN HELD THAT WHERE A MISTAKE IS ALLEGED BEFORE AWARD AND THERE IS INTRODUCED CLEAR AND CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, HOW IT OCCURRED, AND WHAT THE BID PRICES WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTERESTS OF THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED SO THAT THE GOVERNMENT MAY HAVE THE BENEFIT OF IT. B-123562, MAY 10, 1955.

ON APRIL 19, 1962, THE ACTING CHIEF OF ENGINEERS CONSIDERED THE MISTAKE IN BID ALLEGED BY CLIFFORD C. BONG AND CO. AS FOLLOWS:

"1. BIDS WERE OPENED IN THE U.S. ARMY ENGINEER DISTRICT, LOS ANGELES ON 20 MARCH 1962 FOR THE REHABILITATION OF NORTH BREAKWATER, MORRO BAY, CALIFORNIA. THE TWO LOWEST BIDS RECEIVED AND THE GOVERNMENT ESTIMATE WERE AS FOLLOWS:

CHART

CLIFFORD C. BONG AND CO. $1,500,900

FRED D. CHADWICK, INC.

JOHN W. BUCHANAN, INC. AND

SCHMIDT CONSTRUCTION, INC. 1,747,760

GOVERNMENT ESTIMATE 1,767,790

"2. WITHIN AN HOUR AFTER BIDS WERE OPENED REPRESENTATIVES OF THE LOW BIDDER CAME TO THE DISTRICT OFFICE AND ALLEGED THAT THEY HAD MADE A MISTAKE IN THEIR BID IN THAT THEY HAD BID THE AMOUNT OF $10.25 PER TON FOR BID ITEM NO. 2 CAPSTONE (A-1) WHEREAS THEY INTENDED TO BID $12.00 PER TON FOR THAT ITEM. THE BIDDER PRESENTED HIS WORK SHEETS AND ALLEGED THAT THE ERROR OCCURRED IN TRANSCRIBING THE UNIT PRICES FROM THE WORK SHEETS TO THE BID FORM IN THAT THE UNIT PRICE OF $10.25 PER TON FOR BID ITEM NO. 1 CAPSTONE (A) WAS ERRONEOUSLY REPEATED FOR BID ITEM NO. 2 FOR WHICH THEIR WORK SHEETS SHOWED AN INTENDED PRICE OF $12.00 PER TON.

"3. THE BIDDER'S WORK SHEETS REVEAL THAT AN ERROR WAS MADE BY HIM IN NOTING THE PRICE OF $10.25 PER TON FOR ITEM NO. 2 OF HIS BID.

"4. IT HAS ALSO BEEN CLEARLY DEMONSTRATED THAT THE BIDDER INTENDED TO BID $12.00 PER TON FOR BID ITEM NO. 2.

"5.THE BIDDER HAS REQUESTED THAT HE BE ALLOWED TO CORRECT HIS BID.

"6. IF THE BID IS CORRECTED TO INCLUDE THE AMOUNTS ALLEGED BY THE BIDDER TO HAVE BEEN OMITTED FROM HIS BID FOR ITEM NO. 2, HIS BID WOULD BE INCREASED BY $108,500.00 WHICH IS $138,360.00 LESS THAN THE SECOND LOW BIDDER. THE CORRECTION ALLOWED WOULD BE SUBJECT TO THE WAIVER OF THE MISTAKE IN BID PROVISION OF THE INVITATION WHICH WOULD REQUIRE THE BIDDER TO WAIVE $47,518 OF HIS ERROR AND WOULD RESULT IN AN ALLOWABLE CORRECTION OF $60,982.

"7. AWARD HAS NOT BEEN MADE UNDER INVITATION NO. CIVENG-04-353-62 14.

"DETERMINATION AND FINDINGS

"1. AFTER CONSIDERATION OF ALL THE EVIDENCE I FIND THAT (1) CLIFFORD C. BONG AND CO. HAS ALLEGED A MISTAKE IN THEIR BID UNDER INVITATION NO. CIVENG-04-353-62-14 AND HAS REQUESTED PERMISSION TO CORRECT ITS BID; (2) THE EXISTENCE OF THE MISTAKE HAS BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE; AND (3) THE AMOUNT OF THE INTENDED BID HAS BEEN PROVEN BY CLEAR AND CONVINCING EVIDENCE.

"2. BASED ON THE ABOVE FINDINGS AND PURSUANT TO ASPR 2-416.3 (A) (3) AUTHORITY IS GRANTED TO CLIFFORD C. BONG AND CO. TO CORRECT ITS BID UNDER INVITATION NO. CIVENG-04-353-62-14 BY INCREASING THE TOTAL AMOUNT BID FOR ITEM NO. 2 BY $60,982.'

IN THE CIRCUMSTANCES, CONTRARY TO YOUR STATEMENT THAT IT WAS IMPOSSIBLE TO PRODUCE CREDIBLE EVIDENCE SHOWING THE INTENDED BID PRICE, THE FINDINGS OF THE ACTING CHIEF OF ENGINEERS REVEAL THAT THE EVIDENCE WAS SUFFICIENT TO CLEARLY AND CONVINCINGLY ESTABLISH TO HIS SATISFACTION THE EXISTENCE OF THE MISTAKE AND THE AMOUNT INTENDED TO BE BID. SINCE THE WEIGHT TO BE GIVEN EVIDENCE SUBMITTED IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE EVALUATOR OF THE EVIDENCE, WE PERCEIVE NO LEGAL BASIS FOR CONCLUDING THAT THE EVIDENCE WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT CORRECTION OF THE CLIFFORD C. BONG AND CO. BID.