B-151466, JUL. 26, 1963

B-151466: Jul 26, 1963

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WAS PERMITTED TO CORRECT AN ALLEGED MISTAKE IN BID AFTER BID OPENING BUT PRIOR TO AWARD OF THE CONTRACT. BIDDERS WERE TO SHOW THEIR UNIT PRICES AND TOTAL PRICES FOR EACH ITEM AND A TOTAL PRICE FOR ALL 46 ITEMS. SEVEN BIDS WERE RECEIVED AND OPENED ON APRIL 24. 317.30 WAS NEXT LOWEST. THE CONTRACTING OFFICER NOTICED THAT A-ONE MECHANICAL'S BID WAS EXTREMELY LOW ON ITEM 21. A-ONE MECHANICAL'S BID OF $0.57 PER LINEAL FOOT ON THIS ITEM FOR A TOTAL ITEM BID OF $855 WAS DEFINITELY OUT OF LINE WITH THE NEXT LOWEST ITEM BIDS OF $4 AND $13.35. A-ONE MECHANICAL ADVISED THAT ITS UNIT PRICE FOR ITEM 21 SHOULD HAVE BEEN $5.57 AND THE TOTAL PRICE THEREOF SHOULD HAVE BEEN $8. A-ONE MECHANICAL SUBMITTED A PHOTOCOPY OF ITS WORKSHEET WHICH CLEARLY INDICATED THAT A UNIT PRICE OF $5.57 FOR ITEM 21 WAS INTENDED RATHER THAN $0.57 WHICH WAS ITS BID FOR ITEM 20.

B-151466, JUL. 26, 1963

TO POWERS CONSTRUCTION CORPORATION:

BY LETTER DATED MAY 3, 1963, YOU PROTESTED AGAINST THE AWARD MADE UNDER INVITATION FOR BIDS NO. 2612-4-24-63, ISSUED ON APRIL 1, 1963, BY THE ALBUQUERQUE INDIAN HEALTH AREA OFFICE, PUBLIC HEALTH SERVICE, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), FOR THE SEAMA-CASA BLANCA WATER AND PARAJE-CASA BLANCA SEWER PROJECTS. YOU CONTEND THAT THE LOW SUCCESSFUL BIDDER, A-ONE MECHANICAL CONTRACTORS, INC., WAS PERMITTED TO CORRECT AN ALLEGED MISTAKE IN BID AFTER BID OPENING BUT PRIOR TO AWARD OF THE CONTRACT.

THE INVITATION REQUESTED BIDS ON A UNIT PRICE SCHEDULE FOR 46 ITEMS. BIDDERS WERE TO SHOW THEIR UNIT PRICES AND TOTAL PRICES FOR EACH ITEM AND A TOTAL PRICE FOR ALL 46 ITEMS. SEVEN BIDS WERE RECEIVED AND OPENED ON APRIL 24, 1963, AND IT APPEARED THAT A-ONE MECHANICAL SUBMITTED THE LOWEST TOTAL BID PRICE IN THE AMOUNT OF $124,583.15 AND THAT POWERS' TOTAL BID IN THE AMOUNT OF $139,317.30 WAS NEXT LOWEST. IN REVIEWING THE BIDS, THE CONTRACTING OFFICER NOTICED THAT A-ONE MECHANICAL'S BID WAS EXTREMELY LOW ON ITEM 21,"TRENCH WATERING COMPLETE.' A-ONE MECHANICAL'S BID OF $0.57 PER LINEAL FOOT ON THIS ITEM FOR A TOTAL ITEM BID OF $855 WAS DEFINITELY OUT OF LINE WITH THE NEXT LOWEST ITEM BIDS OF $4 AND $13.35, OR TOTAL ITEM BIDS OF $6,000 AND $20,025, RESPECTIVELY. IN VIEW THEREOF, THE ENGINEERING ESTIMATE OF $2 ON ITEM 21, AND THE FACT THAT A-ONE MECHANICAL ALSO BID $0.57 AS THE UNIT PRICE FOR ITEM 20, THE CONTRACTING OFFICER ADVISED A-ONE MECHANICAL OF THE POSSIBILITY OF ERROR. BY LETTER OF APRIL 26, 1963, A-ONE MECHANICAL ADVISED THAT ITS UNIT PRICE FOR ITEM 21 SHOULD HAVE BEEN $5.57 AND THE TOTAL PRICE THEREOF SHOULD HAVE BEEN $8,355. SUPPORT OF THIS ALLEGATION, A-ONE MECHANICAL SUBMITTED A PHOTOCOPY OF ITS WORKSHEET WHICH CLEARLY INDICATED THAT A UNIT PRICE OF $5.57 FOR ITEM 21 WAS INTENDED RATHER THAN $0.57 WHICH WAS ITS BID FOR ITEM 20. A-ONE MECHANICAL'S BID WAS CORRECTED BY THE CONTRACTING OFFICER TO REFLECT ITS INTENDED BID FOR ITEM 21 AND AWARD WAS MADE TO THAT BIDDER ON MAY 1 IN THE AMOUNT OF $132,083.15 AS THE LOWEST BIDDER UNDER THE INVITATION.

UNDER SECTION 1-2.406-3 (A) (2) OF THE FEDERAL PROCUREMENT REGULATIONS, MISTAKES IN BID DISCLOSED BEFORE AWARD MAY BE CORRECTED WHERE THE BIDDER PRESENTS CLEAR AND CONVINCING EVIDENCE OF BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. LIKEWISE THIS OFFICE HAS CONSISTENTLY HELD THAT WHERE A MISTAKE IN BID IS ALLEGED AFTER BID OPENING AND BEFORE AWARD, AND WHERE CORRECTION WILL NOT RESULT IN THE DISPLACEMENT OF BIDDERS, CORRECTION MAY BE PERMITTED PROVIDED THE MISTAKE AND THE INTENDED BID ARE CONCLUSIVELY ESTABLISHED BY COMPETENT EVIDENCE. 35 COMP. GEN. 279; 41 ID. 160. IN THE LIGHT OF THE CIRCUMSTANCES OUTLINED ABOVE, WE THINK THE ACTION TAKEN IN PERMITTING CORRECTION OF THE BID WAS IN CONFORMITY WITH THE CITED REGULATION AND DECISION OF THIS OFFICE.

CONCERNING YOUR ALLEGATION THAT PREVIOUS REQUESTS TO THE PROCUREMENT AGENCY TO HAVE YOUR BID MISTAKES CORRECTED WERE REFUSED, WE ARE OF THE VIEW THAT THE FOLLOWING REPORT FROM THE DIRECTOR, ALBUQUERQUE INDIAN HEALTH AREA OFFICE, IS DISPOSITIVE OF THE MATTER:

"REGARDING MR. POWERS' STATEMENT THAT HE LEFT OUT LABOR FROM THREE (3) BID ITEMS IN HIS BID ON THE PARAJE WATER IMPROVEMENT PROJECT AL-62 43 (CONTRACT PH 74-62-24), THIS WAS NEVER BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER, IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. THERE WAS NO FORMAL PROTEST MADE AT THE TIME OF BID OPENING, PRIOR TO AWARD, OR AFTER AWARD.

"REGARDING AWARD OF CONTRACT PH 74-63-43 TO HARVEY C. JONES FOR THE CONSTRUCTION OF THE FORT DEFIANCE SEWER PROJECT, WE DISAGREE WITH MR. POWERS' STATEMENT THAT HE MADE AN ERROR AND WAS REFUSED THE CHANCE TO CORRECT HIS ERROR.

"IN THE INVITATION FOR BID, UNDER DETAILED SPECIFICATIONS, PARAGRAPH 5,"ADDITIONS OR UCTIONS," BIDDERS WERE REQUIRED TO FURNISH UNIT PRICES AS INDICATED FOR POSSIBLE ADDITIONS OR DEDUCTIONS. THE POWERS CONSTRUCTION CORPORATION FAILED TO INSERT UNIT PRICES AS REQUIRED; THEREFORE, THEIR BID WAS REGARDED AS INCOMPLETE AND WAS NOT CONSIDERED. A BIDDER, AT A PUBLIC BID OPENING, CANNOT BE PERMITTED TO ALTER HIS BID, NOR CAN THE COMPLETION OF AN INCOMPLETE BID BE CONSIDERED A CORRECTION OF AN ERROR.'

IN THIS CONNECTION, SEE 38 COMP. GEN. 819; 40 ID. 432, WHEREIN WE HELD THAT NONRESPONSIVE BIDS MAY NOT BE MADE RESPONSIVE BY APPLICATION OF THE RULES RESPECTING THE CORRECTION OF MISTAKES IN BIDS. IN OTHER WORDS, TO PERMIT CORRECTION OF BID MISTAKES, THE BID ITSELF MUST BE RESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION.