B-156145, MAR. 8, 1965

B-156145: Mar 8, 1965

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THE TWO LOWEST BIDS SUBMITTED IN RESPONSE TO THE INVITATION WERE AS FOLLOWS: CHART PINELLAS CONSTRUCTION WILLIAM F. 250.00" BIDDERS WERE ADVISED IN THE INVITATION THAT "AWARD WILL BE MADE TO ONE BIDDER ON ALL THE WORK SPECIFIED HEREIN AND AS INDICATED ON THE PLANS. THE CORRECT ARITHMETICAL TOTAL OF ITEMS NOS. 1 AND 2 IS $77. AFTER BIDS WERE OPENED ON JANUARY 12. THE INVITATION SCHEDULE QUOTED ABOVE IS SOMEWHAT MISLEADING IN THAT BIDDERS WERE APPRISED THAT AWARD ONLY IN THE AGGREGATE WOULD BE MADE ALTHOUGH ITEM BIDS WERE REQUESTED WITH NO PROVISION FOR QUOTING A DISCOUNTED AGGREGATE BID PRICE. WE HAVE BEEN ADVISED INFORMALLY THAT ITEM BID PRICES WERE REQUESTED FOR INTERNAL BUDGETARY PURPOSES AND THAT ONLY TOTAL BID PRICES WERE FOR EVALUATION.

B-156145, MAR. 8, 1965

TO THE HONORABLE GLENN T. SEABORG, CHAIRMAN, ATOMIC ENERGY COMMISSION:

BY LETTER DATED FEBRUARY 12, 1965, WITH ENCLOSURES, MR. JOHN V. VINCIGUERRA, FOR THE GENERAL MANAGER, REQUESTED OUR DECISION AS TO THE PROPRIETY OF AWARDING A CONTRACT TO WILLIAM F. WESTFALL ON THE BASIS OF HIS BID SUBMITTED UNDER INVITATION FOR BIDS NO. 292-65-35, ISSUED ON DECEMBER 10, 1964, BY THE PINELLAS AREA OFFICE OF THE ATOMIC ENERGY COMMISSION.

THE TWO LOWEST BIDS SUBMITTED IN RESPONSE TO THE INVITATION WERE AS FOLLOWS:

CHART

PINELLAS

CONSTRUCTION

WILLIAM F. WESTFALL CO., INC.

"BID ITEM NO. 1 ALL WORK FOR BUILDING "D" SHOWN ON THE DRAWINGS AND/OR DESCRIBED IN THE SPECIFICATIONS, COMPLETE $36,930.00 $32,500.00

"BID ITEM NO. 2 ALL WORK FOR BUILDING "E" SHOWN ON THE DRAWING AND/OR DESCRIBED IN THE SPECIFICATIONS, COMPLETE 40,170.00 43,750.00

"TOTAL OF BID ITEMS NO. 1 AND NO. 2 WHICH SHALL INCLUDE ALL WORK SHOWN ON DRAWINGS AND/OR DESCRIBED IN THE SPECIFICATIONS, COMPLETE 75,820.00 76,250.00"

BIDDERS WERE ADVISED IN THE INVITATION THAT "AWARD WILL BE MADE TO ONE BIDDER ON ALL THE WORK SPECIFIED HEREIN AND AS INDICATED ON THE PLANS, AS A WHOLE.'

ALTHOUGH THE TOTAL SHOWN FOR ITEMS NOS. 1 AND 2 BY WESTFALL MAKES HIM THE LOWEST BIDDER, THE CORRECT ARITHMETICAL TOTAL OF ITEMS NOS. 1 AND 2 IS $77,100 OR HIGHER THAN THE TOTAL BID OF PINELLAS. AFTER BIDS WERE OPENED ON JANUARY 12, 1965, WESTFALL STATED, WHEN ASKED, THAT HE INTENDED TO LOWER THE PRICE FOR AWARD OF BOTH BID ITEMS AND THAT THE DIFFERENCE BETWEEN THE CORRECT ARITHMETICAL TOTAL OF BOTH ITEMS AND THE TOTAL ACTUALLY BID REPRESENTED A 1.66 PERCENT DISCOUNT ON HIS AGGREGATE BID PRICES FOR ITEMS NOS. 1 AND 2 ($77,100).

PARAGRAPH 10 OF THE INVITATION PROVIDED THAT THE GOVERNMENT COULD ACCEPT ANY ITEM OR COMBINATION OF ITEMS OF A BID, UNLESS PRECLUDED BY THE INVITATION OR RESTRICTED BY THE BIDDER.

THE INVITATION SCHEDULE QUOTED ABOVE IS SOMEWHAT MISLEADING IN THAT BIDDERS WERE APPRISED THAT AWARD ONLY IN THE AGGREGATE WOULD BE MADE ALTHOUGH ITEM BIDS WERE REQUESTED WITH NO PROVISION FOR QUOTING A DISCOUNTED AGGREGATE BID PRICE. HOWEVER, WE NOTE THAT OUT OF EIGHT BIDDERS RESPONDING TO THE INVITATION ONLY WESTFALL BID A LESSER AMOUNT IN THE AGGREGATE THAN THE TOTAL OF HIS BIDS FOR THE TWO BID ITEMS. IN THIS CONNECTION, WE HAVE BEEN ADVISED INFORMALLY THAT ITEM BID PRICES WERE REQUESTED FOR INTERNAL BUDGETARY PURPOSES AND THAT ONLY TOTAL BID PRICES WERE FOR EVALUATION. BUT THIS INFORMATION WAS NOT INCLUDED IN THE INVITATION.

IT IS NOT APPARENT WHY WESTFALL BID A LESSER AMOUNT IN THE AGGREGATE THAN THE CORRECT ARITHMETICAL TOTAL OF THE TWO BID ITEMS. WITHOUT RESORT TO EXTRANEOUS EVIDENCE, SUCH A BID IS SUSCEPTIBLE OF TWO POSSIBLE INTERPRETATIONS; THAT IS, THE AGGREGATE BID PRICE IS A DISCOUNTED AMOUNT WHICH HAS NO APPARENT ARITHMETICAL RELATION TO HIS BIDS ON THE TWO BID ITEMS, OR THAT SUCH AGGREGATE BID IS PATENTLY ERRONEOUS. HOWEVER, WESTFALL DID NOT ALLEGE A MISTAKE IN BID BUT ALLEGED, AFTER BID OPENING, THAT HE BID AN AGGREGATE DISCOUNTED BID PRICE.

IN OUR OPINION, IT IS AN ESSENTIAL OF A VALID BID THAT IT BE SUFFICIENTLY DEFINITE TO ENABLE THE GOVERNMENT TO ACCEPT IT WITH CONFIDENCE THAT THE CONTRACT SO MADE CAN BE INTERPRETED AND ENFORCED WITHOUT RESORT TO EXTRANEOUS EVIDENCE. WE HAVE CONSISTENTLY HELD THAT THE COMPETITIVE BIDDING SYSTEM WOULD BE COMPROMISED IF A BIDDER IS PERMITTED, AFTER BIDS ARE OPENED AND DISCLOSED TO OTHER BIDDERS, TO CLARIFY HIS BID BY SELF- SERVING EXPLANATIONS WHEN SUCH BID IS SO UNCLEAR AS TO THE PRICE HE INTENDED TO BID AS TO LEAVE A SUBSTANTIAL DOUBT AS TO THE RIGHTS AND OBLIGATIONS THAT WOULD ARISE BY ACCEPTING IT. IN B-152853, JUNE 19, 1964, 43 COMP. GEN. - , WE HELD:

"* * * WHERE A BID IS READILY SUSCEPTIBLE OF BEING INTERPRETED AS OFFERING EITHER ONE OF TWO PRICES SHOWN ON ITS FACE, ONE OF WHICH WOULD BE THE LOWEST BID WHILE THE OTHER WOULD NOT, WE BELIEVE THAT IT WOULD BE UNFAIR TO THE OTHER BIDDER OR BIDDERS AFFECTED TO PERMIT THE BIDDER WHO CREATED SUCH AMBIGUITY TO ELECT WHICH PRICE IT SHOULD ATTEMPT TO SUPPORT.'

ADDITIONALLY, SINCE THE AMBIGUITY IN WESTFALL'S BID WAS CREATED BY HIM, AND COULD HAVE BEEN READILY AVOIDED BY MERELY INCLUDING IN THE BID SOME REFERENCE, HOWEVER WORDED, TO SHOW THAT THE AMOUNT STATED AS THE TOTAL WAS KNOWINGLY AND PURPOSELY DIFFERENT FROM THE MATHEMATICAL TOTAL OF THE TWO BID ITEMS, WE ARE OF THE VIEW THAT WESTFALL'S BID AS SUBMITTED MAY NOT BE CONSIDERED FOR AWARD. SEE 43 COMP. GEN. 579.

OUR DECISION AT 42 COMP. GEN. 746, CITED BY YOU, IS NOT APPLICABLE HERE SINCE IN THAT CASE THE BIDDER VERIFIED THE ACCURACY OF HIS OTHERWISE PROPER AGGREGATE BID BEFORE ANY OTHER BID WAS OPENED AND READ.

WE BELIEVE THAT THE TYPE OF INVITATION SCHEDULE USED HERE SHOULD BE AVOIDED IN THE FUTURE. IF AN AWARD IN THE AGGREGATE IS CONTEMPLATED, BIDDERS SHOULD BE ADVISED OF THE PURPOSE FOR WHICH ITEM BIDS ARE REQUESTED AND OF THE FACT THAT PROPERLY IDENTIFIED DISCOUNTED BIDS IN THE AGGREGATE MAY BE OFFERED WITHOUT REGARD TO INDIVIDUAL ITEM BID PRICES.