B-154236, JUN. 26, 1964

B-154236: Jun 26, 1964

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO THE REPORT DATED JUNE 12. IT IS REPORTED THAT THE SUBJECT INVITATION FOR BIDS. PACKED METHOD A BIDS WERE OPENED NOVEMBER 26. SIXTEEN BIDS WERE RECEIVED. ARE AS FOLLOWS: TABLE COMPANY UNIT PRICE DUO-MATIC. CORP. 595.50 JETA CONTAINER CORP. 622.53 KURZ AND ROOT COMPANY'S BID EXPIRATION DATE WAS JANUARY 25. JETA'S BID EXPIRATION DATE WAS EXTENDED TO APRIL 7. WAS NOT EXTENDED BEYOND THIS DATE. DUO MATIC'S EXPIRATION DATE WAS JANUARY 25. WAS PERIODICALLY EXTENDED TO MAY 21. WAS REQUESTED OR RECEIVED BY THE CONTRACTING OFFICER. IT IS FURTHER REPORTED THAT DUO-MATIC SUBMITTED ITS BID IN TRIPLICATE AS REQUIRED BY THE INVITATION. THE UNIT PRICES AND EXTENDED AMOUNTS ON ALL THREE COPIES WERE INSERTED BY PEN AND INK.

B-154236, JUN. 26, 1964

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO THE REPORT DATED JUNE 12, 1964, WITH ATTACHMENTS, OF THE DEPUTY DIRECTOR, PROCUREMENT AND PRODUCTION, UNITED STATES ARMY MATERIEL COMMAND, CONCERNING THE PROTEST OF DUO MATIC, INCORPORATED,AGAINST AWARD TO ANY BIDDER OTHER THAN ITSELF UNDER INVITATION FOR BIDS NO. AMC/T/-11-184-64-41/AF/-JD.

IT IS REPORTED THAT THE SUBJECT INVITATION FOR BIDS, A 100 PERCENT SMALL BUSINESS SET-ASIDE, CALLS FOR 5,132 GENERATOR SETS:

TABLE

1 SET - F.O.B. COLUMBUS, OHIO, PACKED METHOD B

1100 SETS - F.O.B. ORIGIN, PACKED METHOD A

1899 SETS - F.O.B. ORIGIN, PACKED METHOD B

172 SETS - F.O.B. ORIGIN, PACKED METHOD A

1960 SETS - F.O.B. ORIGIN, PACKED METHOD A

BIDS WERE OPENED NOVEMBER 26, 1963. SIXTEEN BIDS WERE RECEIVED. THE BIDS OF THE LOWEST FOUR RESPONSIVE BIDDERS, BASED UPON THE 1899 UNITS F.O.B. ORIGIN, CONSIDERED REPRESENTATIVE OF THE REST OF THE PRICES, ARE AS FOLLOWS:

TABLE

COMPANY UNIT PRICE

DUO-MATIC, INC. $528.01 ($582.01)

KURZ AND ROOT CO. 570.00

HOL-GAR MFG. CORP. 595.50

JETA CONTAINER CORP. 622.53

KURZ AND ROOT COMPANY'S BID EXPIRATION DATE WAS JANUARY 25, 1964. REFUSED TO EXTEND THIS DATE. JETA'S BID EXPIRATION DATE WAS EXTENDED TO APRIL 7, 1964, BUT WAS NOT EXTENDED BEYOND THIS DATE. DUO MATIC'S EXPIRATION DATE WAS JANUARY 25, 1964, AND WAS PERIODICALLY EXTENDED TO MAY 21, 1964. NO EXTENSION BEYOND MAY 21, 1964, WAS REQUESTED OR RECEIVED BY THE CONTRACTING OFFICER. HOL-GAR TIMELY EXTENDED ITS BID ACCEPTANCE TIME TO JUNE 30, 1964.

IT IS FURTHER REPORTED THAT DUO-MATIC SUBMITTED ITS BID IN TRIPLICATE AS REQUIRED BY THE INVITATION. THE UNIT PRICES AND EXTENDED AMOUNTS ON ALL THREE COPIES WERE INSERTED BY PEN AND INK. AT THE BID OPENING THE BUYER READ THE UNIT PRICES OF DUO-MATIC FROM THE FIRST COPY AS $582.01. THE SMALL BUSINESS ADMINISTRATION REPRESENTATIVE INFORMED THE BUYER AFTER THE READING OF THE BIDS THAT HE WAS SITTING NEXT TO DUO-MATIC'S REPRESENTATIVE WHO INFORMED HIM THAT THE PRICES READ BY THE BUYER WERE NOT THE SAME UNIT PRICES HE HAD IN HIS COPY OF THE BID, THAT THE UNIT PRICES READ HAD TRANSPOSED FIGURES. AFTER READING OF ALL THE BIDS WAS COMPLETED, DUO- MATIC'S REPRESENTATIVE ADVISED THE BUYER IN THE BID OPENING ROOM THAT THE PRICES READ WERE NOT THE SAME AS HE HAD IN HIS COPY OF THE BID; THAT THE UNIT PRICES READ WERE TRANSPOSED AND WERE INTENDED TO BE $528.01 IN LIEU OF $582.01. INSPECTION AT THAT TIME OF THE SECOND BID COPY REVEALED THAT ALL UNIT PRICES WERE $528.01. THE THIRD BID COPY CONTAINED ONE UNIT PRICE OF $582.01. THE THIRD BID COPY CONTAINED ONE UNIT PRICE OF $582.01 (ON THE ONE SET F.O.B., COLUMBUS OHIO) THREE UNIT PRICES OF $528.01 AND NO UNIT PRICE FOR THE FIFTH ITEM.

IT IS ALSO REPORTED THAT ON NOVEMBER 29, 1963, A LETTER DATED NOVEMBER 27, 1963, WAS RECEIVED FROM DUO-MATIC STATING THAT "A UNIT PRICE ON ONE COPY OF THE INVITATION FOR BIDS HAD A UNIT PRICE OF $528.01 TRANSPOSED TO $582.01, ALTHOUGH THE EXTENSION PRICE WAS CORRECT" AND REQUESTED CORRECTION OF THIS PRICE TO $528.01, EXPRESSING THE BELIEF THAT IT WAS CLEAR THAT THE UNIT PRICE INTENDED ON ALL COPIES WAS $528.01. IN RESPONSE TO A TELEPHONE REQUEST, DUO-MATIC FORWARDED A NOTARIZED LETTER DATED JANUARY 2, 1964, WITH NOTARIZED PHOTOCOPIES OF ORIGINAL WORK SHEETS ATTACHED SHOWING THE ORIGINAL COST BREAKDOWN AND COMPOSITION OF THE BID PRICE OF $528.01. THE LETTER, WHICH WAS SIGNED BY MR. ERVIN GREENBAUM, REPRESENTATIVE OF DUO-MATIC, FURTHER STATES THAT MR. GREENBAUM ENTERED THE PEN AND INK PRICES ON THE BIDS AND THAT HE INADVERTENTLY TRANSPOSED THE INTENDED UNIT PRICE OF $528.01 TO $582.01, BUT THAT THE EXTENDED PRICES REFLECT THE UNIT PRICE OF $528.01.

THE MATTER WAS FORWARDED TO THE ARMY MATERIEL COMMAND THROUGH THE ARMY MOBILITY COMMAND ON MARCH 3, 1964. THESE AUTHORITIES CONSIDERED THE DUO- MATIC BID AS NONRESPONSIVE AND THAT CORRECTION OF THE BID COULD NOT BE CONSIDERED TO CURE THE NONRESPONSIVENESS. ON MAY 19, 1964, THE ARMY MOBILITY COMMAND, BY TELEPHONE, APPROVED THE PROPOSED AWARD TO HOL-GAR, WHICH WAS CONFIRMED BY TELETYPE DATED MAY 20, 1964, AND ON THIS LATTER DATE THE ARMY MATERIEL COMMAND ADVISED THE CONTRACTING OFFICER THAT AWARD COULD BE MADE TO HOL-GAR ON MAY 22, 1964. HOWEVER, DUO-MATIC ON MAY 20, 1964, ENTERED ITS PROTEST AGAINST THE AWARD OF THE CONTRACT TO ANY BIDDER BUT ITSELF, AND ALL INTERESTED PARTIES AND COMMANDS WERE NOTIFIED.

IN THE ATTACHMENTS TO THE CONTRACTING OFFICER'S STATEMENT THERE IS CITED OUR DECISION DATED MAY 17, 1961, B-144946, AS A CASE ON "ALL FOURS" WITH THE PRESENT CASE. WE CANNOT AGREE. IN THE CITED CASE THERE WAS NO TRANSPOSITION OF FIGURES IN THE UNIT PRICES, NOR WERE THERE ANY EXTENSIONS OF THE UNIT PRICES INDICATIVE OF THE UNIT PRICE INTENDED; ON THE CONTRARY THERE WERE SEPARATE AND DISTINCT SETS OF UNIT PRICES SET FORTH. IN THE PRESENT MATTER, A SINGLE SET OF PRICES ARE BID, WITH TWO FIGURES TRANSPOSED IN THE FIRST BID COPY. HOWEVER, THE EXTENSIONS, MEANINGLESS IN AND OF THEMSELVES, ARE PERSUASIVE OF THE INTENTION TO BID $528.01 PER UNIT, WHEN THE UNIT PRICE IS MULTIPLIED BY THE NUMBER OF UNITS. FURTHERMORE, THERE IS THE PROMPT AND CONTEMPORANEOUS ACTION OF DUO-MATIC IN CALLING TO THE BUYER'S ATTENTION AT BID OPENING THE TRANSPOSITION OF FIGURES. EVEN MORE PERSUASIVE IS THE INFORMATION VOLUNTEERED TO THE BUYER BY THE DISINTERESTED SMALL BUSINESS ADMINISTRATION REPRESENTATIVE IMMEDIATELY AFTER THE READING OF BIDS. AND FINALLY, AN EXAMINATION OF DUO -MATIC'S WORK PAPERS FURNISHES ADDITIONAL WEIGHT TO DUO-MATIC'S CONTENTION, SINCE THE PAPERS CLEARLY SHOW AN INTENDED BID PRICE OF $528.01.

IN THE CONTRACTING OFFICER'S REPORT IT IS STATED THAT DUO-MATIC'S BID OFFER EXPIRED ON MAY 21, 1964, UNLESS EXTENDED BY NOTICE TO OUR OFFICE. WE DO NOT CONSIDER THE BID AS HAVING EXPIRED ON MAY 21, 1964. WE CONSIDER THE PROTEST AGAINST AWARD "TO ANY OTHER CONCERN OTHER THAN DUO-MATIC, INCORPORATED, THE LOW RESPONSIVE BIDDER" AS EFFECTIVE TO EXTEND THIS BID UNTIL THE PROPRIETY OF THE PROTEST HAS BEEN DETERMINED AND, IF PROPER, FOR A REASONABLE TIME THEREAFTER. TO CONCLUDE OTHERWISE WOULD RENDER MEANINGLESS AND A NULLITY THE ENTRY OF THE PROTEST, ONLY TO HAVE THE PROPOSED BID EXPIRE ON THE FOLLOWING DAY.

IN VIEW OF THE FACTS AND CIRCUMSTANCES OBTAINING IN THIS CASE, WE WOULD NOT BE REQUIRED TO OBJECT TO THE CORRECTION OF THE FIGURES IN DUO-MATIC'S FIRST AND THIRD BID COPIES TO CONFORM WITH THE SECOND COPY, AND THE BID CONSIDERED FOR AWARD, IF OTHERWISE PROPER.