B-153728, APR. 6, 1964

B-153728, APR. 6, 1964

TO ADMINISTRATOR, NATIONAL AERONAUTICS AND SPACE ADMINISTRATION:

REFERENCE IS MADE TO A LETTER DATED MARCH 16, 1964 (KD), WITH ENCLOSURES, FROM THE ACTING DIRECTOR OF PROCUREMENT, REQUESTING A DECISION ON THE PROPRIETY OF MAKING A CONTRACT AWARD TO CARL N. SWENSON COMPANY, INC., SAN JOSE, CALIFORNIA, AS THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER UNDER INVITATION NO. A-8200, ISSUED ON JANUARY 31, 1964, BY THE AMES RESEARCH CENTER, MOFFETT FIELD, CALIFORNIA, COVERING THE PROPOSED CONSTRUCTION OF "A LIFE SCIENCE RESEARCH LABORATORY AND A HIGH BAY BUILDING FOR THE AMES RESEARCH CENTER," AND CONTAINING A PROVISION FOR INCLUSION OF ONE OR MORE OF 6 LISTED ADDITIVE ALTERNATE ITEMS OF WORK IN THE CONTRACT AWARD IF THE AVAILABLE FUNDS FOR THE PROJECT WERE SUFFICIENT FOR THAT PURPOSE.

ELEVEN BIDS WERE RECEIVED AND THEY WERE OPENED AS SCHEDULED ON MARCH 3, 1964, AT WHICH TIME IT WAS ASCERTAINED THAT THE PREVIOUSLY ANNOUNCED AVAILABLE FUNDS WERE MORE THAN SUFFICIENT TO MAKE A CONTRACT AWARD FOR THE BASIC CONSTRUCTION WORK PLUS ALL OF THE SPECIFIED ADDITIVE ALTERNATE ITEMS OF WORK. THE THREE LOWEST BIDS WERE SUBMITTED BY CARL N. SWENSON COMPANY, INC., HUBER, HUNT AND NICHOLS, INC., SUNNYVALE, CALIFORNIA, AND THE BARRETT CONSTRUCTION COMPANY, SAN FRANCISCO, CALIFORNIA, IN THE RESPECTIVE TOTAL AMOUNTS OF $2,828,200, $2,850,500 AND $2,884,980. THE SECOND LOWEST BIDDER CONTENDS THAT THE SWENSON COMPANY'S BID SHOULD BE REJECTED BECAUSE OF A FAILURE OF THE BIDDER TO COMPLETE ALTERNATE 6 OF THE BID FORM, AND THE THIRD LOWEST BIDDER OBJECTED TO THE CONSIDERATION OF EITHER THE LOWEST OR THE SECOND LOWEST BID BECAUSE OF "OMISSIONS, ITEMS LEFT BLANK, AND MAY HAVE OTHER IRREGULARITIES AND DEVIATIONS FROM THE EXPRESS BID REQUIREMENTS WHICH WOULD ENTITLE A BID TO BE CONSIDERED.'

THE LOW BID OF $2,828,200 CONTAINS AN OBVIOUS ERROR OF $8,000 IN SETTING FORTH THE CUMULATIVE AMOUNT OF THE CORRECTED BASE BID PLUS THE PRICE FOR ALTERNATE 1, AND THE CUMULATIVE AMOUNT SHOWN IN THE BID AS THE BASE BID PLUS THE PRICES FOR ALTERNATES 1, 2 AND 3 WAS CORRECTED FROM $2,744,700 TO $2,774,700. THE LATTER AMOUNT EXCEEDED BY $60,000 THE PREVIOUS CUMULATIVE AMOUNT INCLUDING ALTERNATES 1 AND 2 ALTHOUGH THE BIDDER QUOTED A PRICE OF ONLY $30,000 FOR ALTERNATE 3. PRICES OF $11,500 AND $42,000 WERE STATED AS THE INDIVIDUAL AMOUNTS FOR ALTERNATES 4 AND 5, AND ON THE SAME LINES OF THE BIDDING SCHEDULE THE CUMULATIVE AMOUNTS OF $2,786,200 AND $2,828,200 WERE SET FORTH. THE SPACES PROVIDED FOR THE LISTING OF AN INDIVIDUAL AMOUNT FOR ALTERNATE 6 AND A CUMULATIVE AMOUNT FOR THE BASE BID PLUS PRICES FOR ALL 6 ALTERNATES WERE LEFT BLANK.

THE SWENSON COMPANY'S WORK SHEETS SUPPORT THE PRICES LISTED ON THE FIRM'S OFFICE COPY OF THE BID, WHICH INCLUDES PRICES OF $30,000, $30,000, $11,500 AND $42,000 FOR ALTERNATES 3, 4, 5 AND 6. HOWEVER, AS THE ASSISTANT PROCUREMENT OFFICER AT THE AMES RESEARCH CENTER HAS INDICATED, IT IS NOT APPARENT FROM THE SWENSON COMPANY'S BID AS SUBMITTED WHAT THE TOTAL AMOUNT OF SUCH BID WOULD HAVE BEEN IF INDIVIDUAL AMOUNTS HAD BEEN SHOWN FOR ALL 6 ADDITIVE ALTERNATE ITEMS OF WORK. THE BID COULD HAVE BEEN CORRECTED FOR OBVIOUS CLERICAL ERRORS IN THE CUMULATIVE AMOUNT COLUMN AND POSSIBLY FOR THE MISTAKE OF LISTING THE SUMS OF $11,500 AND $42,000 AS APPLICABLE TO ALTERNATES 4 AND 5, SINCE SUCH PRICES ARE OUT OF LINE WITH THE AMOUNTS QUOTED BY OTHER BIDDERS FOR THE SAME ALTERNATES, ALTHOUGH WE SPECIFICALLY DO NOT RULE ON THIS POINT. THE FACT NEVERTHELESS REMAINS THAT THE BIDDER QUOTED INDIVIDUAL PRICES FOR ONLY 5 OF THE 6 ADDITIVE ALTERNATES AND IT APPEARS THAT THE AMES RESEARCH CENTER REASONABLY COULD NOT HAVE ASSUMED THAT A BID OF $30,000 WAS INTENDED FOR BOTH ALTERNATE 3 AND ALTERNATE 4 SOLELY ON THE BASIS THAT A DISCREPANCY OF $30,000 IS EVIDENT IN ADDING THE PRICE FOR ALTERNATE 3 TO THE PREVIOUS CUMULATIVE AMOUNT.

IN THE PARTICULAR CIRCUMSTANCES, WE BELIEVE THAT THE BID OF THE SWENSON COMPANY MUST BE REGARDED AS NONRESPONSIVE TO THE INVITATION AND THAT TO ALLOW A CORRECTION TO MAKE THE BID RESPONSIVE WOULD BE CONTRARY TO THE ESTABLISHED RULE OF FORMAL COMPETITIVE PROCUREMENT BY GOVERNMENTAL AGENCIES THAT BIDS MAY NOT BE CHANGED AFTER PUBLIC OPENING OR CORRECTED IN THE CASE OF A MISTAKE IF SUCH ACTION WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS. SUBSECTION 1-2.406-3 OF THE FEDERAL PROCUREMENT REGULATIONS, WHICH APPEARS TO BE CLEARLY FOR APPLICATION TO THE FACTS AND CIRCUMSTANCES HERE INVOLVED, STATES, IN PERTINENT PART, THAT:

"* * * THE AUTHORITY CONTAINED HEREIN TO PERMIT CORRECTION OF BIDS IS LIMITED TO BIDS WHICH, AS SUBMITTED, ARE RESPONSIVE TO THE INVITATION FOR BIDS, AND MAY NOT BE USED TO PERMIT CORRECTION OF BIDS TO MAKE THEM RESPONSIVE. * * *"

EXAMINATION OF THE SECOND LOWEST BID FAILS TO DISCLOSE ANY MATERIAL DEVIATION FROM THE REQUIREMENTS OF THE INVITATION FOR BIDS. NOTWITHSTANDING THAT BIDDER'S FAILURE TO FOLLOW STRICTLY THE FORMAT FOR SHOWING CUMULATIVE AMOUNTS, IT IS CLEAR THAT THE BIDDER INTENDED TO QUOTE A TOTAL PRICE OF $2,850,500, INCLUDING A BASE BID OF $2,640,000 AND $210,500 FOR THE 6 ADDITIVE ALTERNATE ITEMS OF WORK.

ACCORDINGLY, WE AGREE WITH THE ASSISTANT PROCUREMENT OFFICER AT THE AMES RESEARCH CENTER THAT THE BID OF THE SWENSON COMPANY SHOULD BE REJECTED AS NONRESPONSIVE AND THAT THE PROPOSED CONTRACT MAY PROPERLY BE AWARDED TO HUNT, HUBER AND NICHOLS, INC., AS THE LOWEST RESPONSIBLE AND RESPONSIVE BIDDER, SUBJECT TO A FINAL ADMINISTRATIVE DETERMINATION AS TO THAT FIRM'S QUALIFICATIONS AS A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE PARTICULAR JOB.

WE ARE ENCLOSING A COPY OF OUR LETTER OF TODAY TO HUBER, HUNT AND NICHOLS, INC., IN REPLY TO ITS TELEGRAM OF MARCH 16, 1964, SENT TO THIS OFFICE. WE ARE ALSO RETURNING, AS REQUESTED, THE ADMINISTRATIVE FILE RELATING TO INVITATION NO. A-8200.