B-149553, SEP. 6, 1962

B-149553: Sep 6, 1962

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TO REDUCE ITS BID PRICE AFTER THE BIDS WERE OPENED. THESE FEES ARE CUSTOMARILY LEVIED BY AIRPORTS AGAINST AN OPERATOR ON THE BASIS OF A FIXED CHARGE PER GALLON OF FUEL DELIVERED TO THE AIRCRAFT. AFTER BIDS WERE OPENED ON APRIL 25. ASKED THAT THE UNIT PRICE BE CORRECTED SO AS TO REFLECT THE 1 CENT PER GALLON FEE WHICH WAS ACTUALLY CHARGED BY DRESS. EXCEPT WHERE THE BID 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. 37 COMP. IN THAT CASE IT WAS EVIDENT FROM THE FACT OF THE BID THAT THE BID PRICE WAS COMPUTED ON THE ERRONEOUS ASSUMPTION THAT THE PROCURING ACTIVITY REQUIRED PRICES FOR LOAVES OF BREAD TO BE QUOTED ON A PER LOAF (24-OUNCE) BASIS.

B-149553, SEP. 6, 1962

TO EVANSVILLE AVIATION CORPORATION:

YOUR LETTER OF JULY 24, 1962, PROTESTS AGAINST THE ACTION OF THE DEFENSE PETROLEUM SUPPLY CENTER, WHICH PERMITTED SHELL OIL COMPANY, HEREINAFTER REFERRED TO AS SHELL, TO REDUCE ITS BID PRICE AFTER THE BIDS WERE OPENED, THEREBY DISPLACING YOUR OTHERWISE LOW BID.

INVITATION FOR BIDS DSA-6-62-117, ISSUED ON MARCH 21, 1962, SOLICITED BIDS FOR AVIATION FUEL AT VARIOUS COMMERCIAL AIRPORTS,INCLUDING THE DRESS MEMORIAL AIRPORT, HEREINAFTER REFERRED TO AS DRESS. PARAGRAPH 16 OF THE TERMS AND CONDITIONS OF THE INVITATION REQUIRED THAT THE UNIT PRICES PER GALLON INCLUDE ANY AIRPORT FEES. THESE FEES ARE CUSTOMARILY LEVIED BY AIRPORTS AGAINST AN OPERATOR ON THE BASIS OF A FIXED CHARGE PER GALLON OF FUEL DELIVERED TO THE AIRCRAFT. AFTER BIDS WERE OPENED ON APRIL 25, 1962, SHELL ALLEGED THAT IT HAD INCLUDED IN ITS UNIT BID PRICE AN AIRPORT FEE OF 5 CENTS PER GALLON, AND ASKED THAT THE UNIT PRICE BE CORRECTED SO AS TO REFLECT THE 1 CENT PER GALLON FEE WHICH WAS ACTUALLY CHARGED BY DRESS.

OUR OFFICE DOES NOT PERMIT A CORRECTION OF AN ERROR IN BID WHICH WOULD RESULT IN A BID NOT THE LOWEST SUBMITTED BECOMING LOWEST, EXCEPT WHERE THE BID 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. 37 COMP. GEN. 210. IN A RECENT DECISION, B-146096 DATED JUNE 20, 1961, WE ALLOWED A CORRECTION OF A BID WHICH THEREBY BECAME THE LOW BID. IN THAT CASE IT WAS EVIDENT FROM THE FACT OF THE BID THAT THE BID PRICE WAS COMPUTED ON THE ERRONEOUS ASSUMPTION THAT THE PROCURING ACTIVITY REQUIRED PRICES FOR LOAVES OF BREAD TO BE QUOTED ON A PER LOAF (24-OUNCE) BASIS. THE ACTUAL FACT WAS THAT THE INVITATION CALLED FOR PRICES BASED ON UNITS OF 16 OUNCES. THE PRICE WHICH WOULD HAVE BEEN OFFERED BUT FOR THE ERROR WAS ALSO ESTABLISHED WITHOUT RESORT TO DOCUMENTS EXTRANEOUS TO THE BID.

THE ANALOGY BETWEEN THE ABOVE DECISION AND THE INSTANT CASE IS CLEAR. SHELL ALLEGES THAT IT ERRONEOUSLY BASED ITS BID PRICE ON THE ASSUMPTION THAT DRESS CHARGED OPERATORS AN AIRPORT FEE OF 5 CENTS PER GALLON. THE RECORD ESTABLISHES THAT THE ACTUAL FEE IS IN FACT 1 CENT PER GALLON. THE SOLE ISSUE FOR DECISION IS WHETHER THE ALLEGED ERROR AND THE PRICE WHICH WOULD HAVE BEEN BID BUT FOR THE ERROR CAN BE PROVED SOLELY BY REFERENCE TO THE BID ITSELF.

SECTION VII OF THE INVITATION FOR BIDS PROVIDES:

"/A) THE UNIT PRICES SET FORTH IN SECTION II THEREOF INCLUDE ALL APPLICABLE AIRPORT FEES AND/OR CHARGES MEASURED BY THE GALLONAGE DELIVERED WITH RESPECT TO WHICH THE CONTRACTOR IS UNABLE TO SECURE AN EXEMPTION IN FAVOR OF THE U.S. GOVERNMENT. IN THE EVENT THE U.S. GOVERNMENT IS ABLE TO OBTAIN AN EXEMPTION, OR IF FOR ANY REASON THE CONTRACTOR IS NOT REQUIRED TO PAY SUCH AIRPORT FEES AND/OR CHARGES, THE CONTRACTOR AGREES TO REDUCE THE UNIT PRICES AFFECTED THEREBY IN AN AMOUNT EQUAL TO THE FEE OR CHARGE INVOLVED. SUCH FEES AND/OR CHARGES INCLUDED IN THE UNIT PRICES ARE TABULATED BELOW:

TABLE

NAME AND ADDRESS IN AMOUNT OF FEE AND/OR

FULL OF AUTHORITY CHARGE PER GALLON

TO WHOM FEE AND/OR AND GRADE OF PRODUCT

"AIR PORT CHARGE IS PAID APPLICABLE

"/B) IN THE EVENT THAT DURING THE PERIOD OF THIS CONTRACT ANY EXISTING OR ADDITIONAL AIRPORT FEES AND/OR CHARGES MEASURED BY THE GALLONAGE DELIVERED ARE DETERMINED TO BE APPLICABLE TO PERFORMANCE HEREUNDER, AND THE CONTRACTOR IS UNABLE TO SECURE AN EXEMPTION THEREFROM IN FAVOR OF THE U.S. GOVERNMENT, THE UNIT PRICES AFFECTED THEREBY SHALL BE INCREASED BY THE AMOUNT THEREOF.'

THIS SECTION OF THE BID WAS COMPLETED BY SHELL, SHOWING CONCLUSIVELY THAT ITS BID PRICE FOR SERVICING AIRCRAFT AT DRESS INCLUDED AN AIRPORT FEE OF 5 CENTS PER GALLON. UNDER THE TERMS OF SECTION VII, DISCOVERY OF SUCH ERROR AUTOMATICALLY RESULTED IN AN UPWARD OR DOWNWARD ADJUSTMENT OF THE BID PRICE, DEPENDING ON WHETHER THE FEE CHARGED WAS GREATER OR LESSER THAN THE ACTUAL FEE. THE AMOUNT OF THE AIRPORT FEE, WHICH THE BIDDERS WERE REQUIRED TO INCLUDE IN THE UNIT BID PRICES, WAS UNCONDITIONALLY AND INDEPENDENTLY SETTLED PRIOR TO BID OPENING BY A THIRD PARTY, DRESS. UNDER THE TERMS OF THE INVITATION, THE BIDDER HAD NO OPPORTUNITY TO ALTER THE AMOUNT OF THE FEE IN ORDER TO CHANGE HIS BID PRICE TO HIS ADVANTAGE.

IN VIEW OF THE EFFECT OF SHELL'S HAVING COMPLETED SECTION VII OF THE INVITATION FOR BIDS, WE THINK THAT THE ERROR AND AMOUNT OF THE INTENDED BID WAS ASCERTAINABLE ON THE FACE OF THE INVITATION AND BID. THEREFORE, THIS OFFICE HAS NO BASIS UPON WHICH TO OBJECT TO THE PROCURING ACTIVITY'S HAVING PERMITTED CORRECTION OF THE ERROR. ACCORDINGLY, YOUR PROTEST MUST BE DENIED.