B-150911, APR. 23, 1963

B-150911: Apr 23, 1963

Additional Materials:

Contact:

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

 

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

THE INVITATION REQUESTED BIDS ON INCREMENT QUANTITIES OF THE 364 LINE ITEMS WHICH WERE LISTED IN GROUPS OF THIRTEEN EACH. BIDS WERE TO BE SUBMITTED ON A UNIT BASIS. THAT IS. WHICH LENGTH WAS FIXED PURSUANT TO PARAGRAPHS 3.4.2 AND 6.2 OF THE SPECIFICATION. FAILURE TO OFFER UNIT PRICES AS REQUIRED HEREIN WILL RESULT IN REJECTION OF THE BID.'. SEVEN BIDS WERE RECEIVED AND OPENED ON OCTOBER 17. SINCE THE BIDS SUBMITTED BY THE NATVAR CORPORATION AND THE VARFLEX CORPORATION WERE ABOUT ONE-THIRD OF THE UNIT PRICES OFFERED BY OTHER BIDDERS. BOTH BIDDERS WERE REQUESTED BY THE CONTRACTING OFFICER TO VERIFY THEIR PRICES. CONTENDING THAT THE PRICES BID WERE INTENDED TO APPLY TO A UNIT OF ONE FOOT RATHER THAN TO A UNIT OF 36 INCHES REQUIRED BY THE INVITATION.

B-150911, APR. 23, 1963

TO SUFLEX CORPORATION:

BY LETTER DATED FEBRUARY 25, 1963, WITH ENCLOSURES, YOU PROTESTED AGAINST THE CORRECTION OF THE BIDS SUBMITTED BY THE TWO LOWEST BIDDERS UNDER INVITATION FOR BIDS NO. DSA 9-63-8, ISSUED ON SEPTEMBER 6, 1962, BY THE DEFENSE ELECTRONICS SUPPLY CENTER, COVERING 364 LINE ITEMS OF ELECTRONIC INSULATION SLEEVING IN ACCORDANCE WITH SPECIFICATION MIL-I 3190.

THE INVITATION REQUESTED BIDS ON INCREMENT QUANTITIES OF THE 364 LINE ITEMS WHICH WERE LISTED IN GROUPS OF THIRTEEN EACH, ACCORDING TO SIZE, "36 INCHES LONG.' BIDS WERE TO BE SUBMITTED ON A UNIT BASIS, THAT IS, A PRICE FOR EACH UNIT OF 36 INCHES LONG, WHICH LENGTH WAS FIXED PURSUANT TO PARAGRAPHS 3.4.2 AND 6.2 OF THE SPECIFICATION. PARAGRAPH 28 OF THE TERMS AND CONDITIONS OF THE INVITATION READS AS FOLLOWS:

"QUANTITY INCREMENTS:

"A. BIDDER MUST BID IN ALL QUANTITY INCREMENTS AS SPECIFIED IN THE IFB SCHEDULE PAGES. IF THE BIDDER DESIRES TO OFFER ONE UNIT PRICE ONLY FOR AN ITEM, THAT PRICE SHALL APPLY TO ALL INCREMENTS OF THE ITEM.

"C. UNIT PRICES MUST NOT BE STATED AS PART OF A PRICING FORMULA OR AS CHARGES PER LOT (E.G. COST PER 100 OR 1000 EACH).

"D. NOTWITHSTANDING PARAGRAPH A. ABOVE, THE UNIT PRICE MUST BE CLEARLY STATED FOR EACH INCREMENT OF EACH ITEM BID UPON. FAILURE TO OFFER UNIT PRICES AS REQUIRED HEREIN WILL RESULT IN REJECTION OF THE BID.'

SEVEN BIDS WERE RECEIVED AND OPENED ON OCTOBER 17, 1962. SINCE THE BIDS SUBMITTED BY THE NATVAR CORPORATION AND THE VARFLEX CORPORATION WERE ABOUT ONE-THIRD OF THE UNIT PRICES OFFERED BY OTHER BIDDERS, BOTH BIDDERS WERE REQUESTED BY THE CONTRACTING OFFICER TO VERIFY THEIR PRICES. BOTH BIDDERS THEREUPON ALLEGED THAT THEY HAD MADE A MISTAKE IN THEIR BIDS, CONTENDING THAT THE PRICES BID WERE INTENDED TO APPLY TO A UNIT OF ONE FOOT RATHER THAN TO A UNIT OF 36 INCHES REQUIRED BY THE INVITATION. HOWEVER, THE BID OF NATVAR WAS CONSIDERED NONRESPONSIVE TO THE SPECIFICATIONS AND WAS REJECTED.

VARFLEX ADVISED THE PROCUREMENT AGENCY BY TELEGRAM DATED NOVEMBER 1, 1962, THAT IT HAD MADE AN ERROR IN BIDDING ON ONE-FOOT LENGTHS RATHER THAN 36-INCH LENGTHS. BY LETTER DATED NOVEMBER 23, 1962, VARFLEX FURNISHED EVIDENCE IN SUPPORT OF ITS ALLEGATION OF ERROR.

AFTER EVALUATION OF THE EVIDENCE SUBMITTED, IT WAS CONCLUDED BY THE PROCUREMENT AGENCY, PURSUANT TO ASPR 2-406.3, THAT THE FILE CLEARLY AND CONVINCINGLY ESTABLISHED BOTH THE EXISTENCE OF THE MISTAKE AND THE AMOUNT OF THE INTENDED BID. THE PROCUREMENT AGENCY THEREFORE CONCLUDED THAT VARFLEX SHOULD BE PERMITTED TO CORRECT ITS BID BY CALCULATING THE PRICE ON A 36-INCH LENGTH BASIS RATHER THAN ON A FOOT BASIS, THAT IS, BY MULTIPLYING ITS UNIT BID PRICES BY THREE.

WE ARE ADVISED THAT AWARDS OF THE GOVERNMENT'S REQUIREMENTS WERE MADE ON FEBRUARY 26, 1963, TO VARFLEX UNDER CONTRACT NO. DSA 9-3477 FOR 251 ITEMS AND TO SUFLEX UNDER CONTRACT NO. DSA 9-3479 FOR 112 ITEMS. NO AWARD WAS MADE ON THE REMAINING ITEMS BECAUSE OF A CHANGE IN THE GOVERNMENT'S REQUIREMENTS.

YOU CONTEND THAT THE BID OF VARFLEX SHOULD HAVE BEEN CONSIDERED AS A BID ON A ONE-FOOT BASIS AND REJECTED AS NONRESPONSIVE PURSUANT TO PARAGRAPH 28, QUOTED ABOVE. AN EXAMINATION OF VARFLEX'S BID REVEALS THAT THE UNIT SPECIFIED IN THE INVITATION WAS NOT CHANGED FROM 36 INCHES TO ONE FOOT. CONSEQUENTLY, THE BID MUST BE CONSTRUED AS A BID ON A UNIT "36 INCHES LONG.' YOU ADVISE THAT THE ERROR MADE BY VARFLEX PARALLELS A SIMILAR ERROR MADE BY YOUR FIRM IN NOVEMBER 1961 UNDER INVITATION FOR BIDS NO. 33- 604-62-111 WHERE YOUR BID WAS SUBMITTED ON A UNIT OF 100 FEET RATHER THAN A UNIT OF ONE FOOT, AS REQUIRED BY THE INVITATION. UNDER THAT INVITATION, YOUR BID WAS REJECTED AS NONRESPONSIVE PURSUANT TO A PROVISION IDENTICAL TO PARAGRAPH 28 OF THE PRESENT INVITATION, QUOTED ABOVE. IT IS YOUR VIEW THAT THE ACTION TAKEN BY THE PROCUREMENT AGENCY ON VARFLEX'S BID IS INCONSISTENT WITH THE REJECTION ACTION TAKEN WITH RESPECT TO YOUR BID UNDER THE EARLIER INVITATION.

IT IS REPORTED THAT UNDER THE EARLIER INVITATION YOU SUBMITTED A BID ON A UNIT OF 100 FEET SINCE YOU INSERTED A "C"--- THE SYMBOL FOR 100-- IN THE UNIT COLUMN OF THE SCHEDULE FOR EACH ITEM BID UPON. THUS, YOU CLEARLY QUALIFIED YOUR BID CONTRARY TO THE EXPRESS REQUIREMENTS OF THE INVITATION SO THAT ITS REJECTION WAS MANDATORY. THAT IS NOT THE SITUATION HERE. VARFLEX'S BID WAS NOT QUALIFIED IN ANY WAY AS TO CONSTITUTE AN OFFER TO SUPPLY A UNIT OTHER THAN THAT REQUIRED BY PARAGRAPH 28, THAT IS, VARFLEX'S BID AS SUBMITTED CONTAINED NO VARIANCES FROM THE 36-INCH UNIT REQUIREMENT.

IN ORDER TO DETERMINE, PRIOR TO AWARD, THE RESPONSIVENESS OF VARFLEX'S BID, THE BID MUST BE CONSIDERED AS SUBMITTED AND IT IS CLEAR THAT VARFLEX MADE NO CHANGE IN THE UNIT SPECIFIED. THUS, THERE IS ONLY FOR CONSIDERATION HERE THE QUESTION WHETHER CORRECTION OF VARFLEX'S BID WAS PROPER UNDER THE CIRCUMSTANCES.

UNDER ASPR 2-406.3, THE PROCUREMENT AGENCY IS AUTHORIZED TO CORRECT MISTAKES IN BIDS IF THE EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE ALLEGED PRIOR TO AWARD AND THE BID ACTUALLY INTENDED. CF. 38 COMP. GEN. 177; SEE 41 ID. 160; ID. 192; ID. 469.

THE QUESTION WHETHER A BIDDER MAY BE PERMITTED TO CHANGE HIS BID AFTER THE BIDS ARE OPENED BECAUSE OF ERROR ALWAYS PRESENTS A MATTER OF SERIOUS CONCERN. HOWEVER, WE HAVE CONSISTENTLY PERMITTED CORRECTION OF OBVIOUS UNIT PRICE ERRORS WHERE THERE IS NO DOUBT THAT SUCH AN ERROR WAS MADE AS ALLEGED, SUCH AS WHERE A BIDDER AFTER CALCULATING ITS INTENDED BID PRICE INADVERTENTLY BIDS ON A UNIT OTHER THAN THAT SPECIFIED. SEE 17 COMP. GEN. 841, 18 ID. 843; 19 ID. 116; B-136789, JULY 23, 1958; B-141274, NOVEMBER 27, 1959, B-141366, DECEMBER 22, 1959; AND B-143705, AUGUST 19, 1960.

SINCE THE ERROR MADE BY VARFLEX WAS ALLEGED PRIOR TO AWARD AND THE FACTS OF RECORD ESTABLISH THE INTENDED BID PRICE, THE CORRECTION OF THE BID PURSUANT TO REGULATION IS NOT SUBJECT TO QUESTION BY OUR OFFICE.