B-156934, JUL. 28, 1965

B-156934: Jul 28, 1965

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INC.: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 4 AND LETTER DATED JUNE 22. THE INVITATION WAS ISSUED ON NOVEMBER 18. FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE LOWEST BID IN THE AMOUNT OF $179 EACH WAS SUBMITTED BY HEAT EXCHANGERS. THE NEXT LOWEST BID IN THE AMOUNT OF $380 EACH WAS SUBMITTED BY YOUR FIRM. IT IS REPORTED THAT ON MARCH 24. ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT A TYPOGRAPHICAL ERROR HAD BEEN MADE IN ITS BID IN THAT THE PRICE OF THE PRE-OILERS SHOULD HAVE BEEN $379 EACH INSTEAD OF $179 EACH. THE FOLLOWING FINDINGS AND DETERMINATION WERE MADE UNDER DATE OF JUNE 15. PENNSYLVANIA "THE FOLLOWING FINDINGS AND DETERMINATION ARE MADE PURSUANT TO THE AUTHORITY DELEGATED TO THE ASSISTANT CHIEF FOR PURCHASING.

B-156934, JUL. 28, 1965

TO STEWART AVIONICS, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 4 AND LETTER DATED JUNE 22, 1965, PROTESTING AGAINST THE ADMINISTRATIVE DETERMINATION ALLOWING HEAT EXCHANGERS, INC., TO CORRECT A MISTAKE IN ITS BID SUBMITTED PURSUANT TO DEPARTMENT OF THE NAVY INVITATION NO. 383-422-65.

THE INVITATION WAS ISSUED ON NOVEMBER 18, 1964, BY THE AVIATION SUPPLY OFFICE, PHILADELPHIA, PENNSYLVANIA, AND IT SOLICITED BIDS FOR FURNISHING A QUANTITY OF PRE-OILERS, TYPE PON-6, TO BE IN ACCORDANCE WITH BUREAU OF NAVAL WEAPONS DRAWING 61A108J1 REVISION "C.' FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, AS AMENDED, AND OPENED ON MARCH 23, 1965. THE LOWEST BID IN THE AMOUNT OF $179 EACH WAS SUBMITTED BY HEAT EXCHANGERS, INC., AND THE NEXT LOWEST BID IN THE AMOUNT OF $380 EACH WAS SUBMITTED BY YOUR FIRM. IT IS REPORTED THAT ON MARCH 24, 1965, HEAT EXCHANGERS, INC., ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT A TYPOGRAPHICAL ERROR HAD BEEN MADE IN ITS BID IN THAT THE PRICE OF THE PRE-OILERS SHOULD HAVE BEEN $379 EACH INSTEAD OF $179 EACH. THE CORPORATION REQUESTED THAT THE UNIT PRICE OF THE PRE-OILERS BE CORRECTED TO READ $379 EACH.

AFTER CONSIDERATION OF THE ALLEGED ERROR, THE DOCUMENTARY EVIDENCE SUBMITTED IN SUPPORT THEREOF, AND THE REQUEST FOR CORRECTION OF ITS BID, THE FOLLOWING FINDINGS AND DETERMINATION WERE MADE UNDER DATE OF JUNE 15, 1965, BY THE ACTING ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS:

CHART

"DETERMINATION "FINDINGS AND DETERMINATION CONCERNING A

NO. 2922-C MISTAKE IN BID BY HEAT EXCHANGERS,

INC., CHICAGO, ILLINOIS, UNDER 15 JUN 1965

INVITATION FOR BIDS NO.

SBCS-IFB-383-422-65, ISSUED BY THE

U.S. NAVY AVIATION SUPPLY OFFICE,

PHILADELPHIA, PENNSYLVANIA

"THE FOLLOWING FINDINGS AND DETERMINATION ARE MADE PURSUANT TO THE AUTHORITY DELEGATED TO THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, BY NPD 2-406.3 (A).

"FINDINGS

"1. BIDS RECEIVED UNDER INVITATION NO. SBCS-IFB-383-422-65 WERE OPENED ON 23 MARCH 1965. THE INVITATION REQUESTED BIDS FOR THE FURNISHING OF 96 PRE -OILERS, TO BE IN ACCORDANCE WITH BUWEPS DRAWING 61A108. HEAT EXCHANGERS, INC. SUBMITTED THE LOW BID OF $179.00 EACH. THREE OTHER BIDS WERE RECEIVED IN THE AMOUNTS OF $380.00, $416.00 AND $470.00 EACH.

"2. BY TELEPHONE CONVERSATION ON 24 MARCH 1965, HEAT EXCHANGERS, INC. ALLEGED IT INTENDED TO BID $379.00 EACH BUT THAT, DUE TO A TYPOGRAPHICAL ERROR, A PRICE OF $179.00 WAS INSERTED IN THE BID FORM. THE BIDDER CONFIRMED HIS ALLEGATION BY LETTER OF 7 APRIL 1965 AND SUBSEQUENT CORRESPONDENCE AND SUBMITTED HIS WORKSHEETS AS EVIDENCE. THE WORKSHEETS SHOW ITEMIZED COSTS TOTALING $379.06 FOR LABOR, BURDEN, MATERIAL, AND GENERAL AND ADMINISTRATIVE EXPENSE. IT ALSO SHOWS THE NOTATION "SELLING PRICE--- $379.00.' ALSO FURNISHED WERE TWO SWORN AFFIDAVITS, ONE ATTESTING THE AUTHENTICITY OF THE WORKSHEET SUBMITTED, AND THE OTHER BY THE TYPIST STATING "I, INADVERTENTLY, TYPED A "1" INSTEAD OF A "3" AND, OF COURSE, AND, OF COURSE, COMPUTED THE EXTENSION ON THE BASIS OF THE $179.00 FIGURE.' CORRECTION OF THE BID WAS REQUESTED. IF CORRECTED, THE BID WILL STILL BE LOW.

"3. THE CONTRACTING OFFICER STATED THAT, IN HIS OPINION, HEAT EXCHANGERS, INC. ACTUALLY INTENDED TO BID $379.00 EACH. HE NOTED THAT THE BIDDER PREVIOUSLY SUPPLIED THE SAME MATERIAL TO THE GOVERNMENT, IN A LARGER QUANTITY, AT A UNIT PRICE OF $364.50 EACH. THEREFORE, HE RECOMMENDED THAT THE BID BE CORRECTED TO $379.00 EACH.

"DETERMINATION

"BASED ON THE FOREGOING FACTS AND EVIDENCE, IT IS HEREBY DETERMINED THAT HEAT EXCHANGERS, INC. SUBMITTED AN ERRONEOUS BID. THE EVIDENCE IS ALSO CLEAR AND CONVINCING AS TO THE BID INTENDED, THAT IS $379.00 EACH. ACCORDINGLY, THE BID SHALL BE CORRECTED TO $379.00 EACH AS REQUESTED.'

IT IS REPORTED THAT ON JUNE 22, 1965, THE CONTRACTING OFFICER ADVISED THE PRESIDENT OF YOUR FIRM BY TELEPHONE THAT (1) YOUR TELEGRAM OF JUNE 4, 1965, WAS THE ONLY NOTIFICATION RECEIVED TO DATE OF YOUR PROTEST AGAINST THE MAKING OF ANY AWARD OTHER THAN TO YOUR FIRM; (2) THAT THE BUREAU OF SUPPLIES AND ACCOUNTS HAD AUTHORIZED CORRECTION OF THE BID SUBMITTED BY HEAT EXCHANGERS, INC., AND (3) THAT DUE TO THE URGENT NEED FOR THE PRE- OILERS, THE AVIATION SUPPLY OFFICE WAS FILING A NOTICE OF INTENT TO MAKE AN AWARD TO HEAT EXCHANGERS, INC., IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-407.9 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

ASPR 2-406.3 PROVIDES IN PERTINENT PART:

"/A) THE DEPARTMENTS ARE AUTHORIZED TO MAKE THE FOLLOWING ADMINISTRATIVE DETERMINATIONS IN CONNECTION WITH MISTAKES IN BIDS, OTHER THAN APPARENT CLERICAL MISTAKES, ALLEGED AFTER OPENING OF BIDS AND PRIOR TO AWARD.

"/2) HOWEVER, IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO THE EXISTENCE OF THE MISTAKE AND AS TO THE BID ACTUALLY INTENDED, AND IF THE BID, BOTH AS UNCORRECTED AND AS CORRECTED, IS THE LOWEST "RECEIVED, A DETERMINATION MAY BE MADE TO CORRECT THE BID AND NOT PERMIT ITS WITHDRAWAL.

"/3) WHERE THE BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE; PROVIDED THAT, IN THE EVENT SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER BIDS, THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. IF THE EVIDENCE IS CLEAR AND CONVINCING ONLY AS TO THE MISTAKE, BUT NOT AS TO THE INTENDED BID, A DETERMINATION PERMITTING THE BIDDER TO WITHDRAW HIS BID MAY BE MADE.'

THE AUTHORITY CONTAINED THEREIN TO MAKE CORRECTIONS SUCH AS HERE INVOLVED WAS GRANTED AND IS MATERIALLY CONSISTENT WITH OUR OFFICE DECISION OF JUNE 29, 1954, B-120281. THE QUESTION WHETHER A BIDDER MAY CHANGE A BID AFTER OPENING BECAUSE OF MISTAKE THEREIN ALWAYS PRESENTS A MATTER OF SERIOUS CONCERN. IN ORDER TO AUTHORIZE CORRECTION OF A BID, THE BIDDER MUST FURNISH EVIDENCE WHICH CONCLUSIVELY ESTABLISHES NOT ONLY THE EXISTENCE OF THE MISTAKE, BUT ITS NATURE, HOW IT OCCURRED, AND WHAT THE BIDDER ACTUALLY INTENDED TO BID. SEE ASPR 2-406.3 (D). THE FORM OF SUCH EVIDENCE NECESSARILY WILL VARY WITH THE CIRCUMSTANCES OF EACH CASE, BUT THE EVIDENCE NECESSARILY MUST BE THE BEST AVAILABLE. SINCE THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER OPENING BUT PRIOR TO AWARD IS VESTED IN THE PROCUREMENT AGENCY BY REGULATION, THE WEIGHT TO BE GIVEN EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF THE EVIDENCE. WE PERCEIVE OF NO LEGAL BASIS TO CONCLUDE THAT THE EVIDENCE SUBMITTED BY HEAT EXCHANGERS, INC., WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT CORRECTION OF THE CORPORATION'S BID.

FOR THE REASONS STATED, WE WOULD NOT BE JUSTIFIED IN OBJECTING TO THE AWARD OF THE CONTRACT IN THIS CASE.