B-158570, JULY 25, 1966, 46 COMP. GEN. 77

B-158570: Jul 25, 1966

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THE REVERSAL OF THE UNIT PRICES FOR THE TWO DESTINATIONS IS AN OBVIOUS CLERICAL ERROR THAT IS WITHIN THE PURVIEW OF PARAGRAPH 2-406.2 OF THE ARMED SERVICES PROCUREMENT REGULATION AS THE CONTRACTING OFFICER IS ABLE TO ASCERTAIN THE INTENDED BID ON THE BASIS OF THE BID ALONE WITHOUT NEED FOR REFERENCE TO ANY EXTRANEOUS ADVICE AND. HE IS AUTHORIZED TO CORRECT THE TRANSPOSITION OF THE UNIT PRICES THAT HAD BEEN STATED IN REVERSE FOR THE TWO DESTINATIONS. IS REQUIRED UNDER PARAGRAPH 1- 1313 OF THE ARMED SERVICES PROCUREMENT REGULATION WITHOUT EVALUATING THE RESPONSIBILITY OF THE CARRIER. WHO POSSESSING A CERTIFICATE OF PUBLIC NECESSITY FROM THE INTERSTATE COMMERCE COMMISSION IS PRESUMED TO BE FIT.

B-158570, JULY 25, 1966, 46 COMP. GEN. 77

BIDS - MISTAKES - UNIT PRICE ERROR OBVIOUS - DELIVERY COSTS REVERSED. UNDER AN INVITATION FOR DELIVERY OF ITEMS F.O.B. DESTINATION TO TWO WIDELY SEPARATE DESTINATIONS, THE REVERSAL OF THE UNIT PRICES FOR THE TWO DESTINATIONS IS AN OBVIOUS CLERICAL ERROR THAT IS WITHIN THE PURVIEW OF PARAGRAPH 2-406.2 OF THE ARMED SERVICES PROCUREMENT REGULATION AS THE CONTRACTING OFFICER IS ABLE TO ASCERTAIN THE INTENDED BID ON THE BASIS OF THE BID ALONE WITHOUT NEED FOR REFERENCE TO ANY EXTRANEOUS ADVICE AND, THEREFORE, HE IS AUTHORIZED TO CORRECT THE TRANSPOSITION OF THE UNIT PRICES THAT HAD BEEN STATED IN REVERSE FOR THE TWO DESTINATIONS. BIDS - EVALUATION - DELIVERY PROVISIONS - CARRIER RESPONSIBILITY. IN THE EVALUATION OF F.O.B. ORIGIN BIDS, THE USE OF PREFERENTIAL RATES OFFERED TO THE GOVERNMENT BY COMMON CARRIERS PURSUANT TO SECTION 22/1) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, IS REQUIRED UNDER PARAGRAPH 1- 1313 OF THE ARMED SERVICES PROCUREMENT REGULATION WITHOUT EVALUATING THE RESPONSIBILITY OF THE CARRIER, WHO POSSESSING A CERTIFICATE OF PUBLIC NECESSITY FROM THE INTERSTATE COMMERCE COMMISSION IS PRESUMED TO BE FIT, WILLING AND ABLE TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS, RULES AND REGULATIONS OF THE COMMISSION. BIDS - EVALUATION - DELIVERY PROVISIONS - ERRONEOUS - WEIGHT. ALTHOUGH ORDINARILY AN INVITATION FOR BIDS PROVIDING AN ERRONEOUS DRUM WEIGHT FOR THE EVALUATION OF F.O.B. ORIGIN BIDS WOULD BE CONSIDERED DEFECTIVE, REQUIRING READVERTISEMENT OF THE INVITATION, AS THE ERRONEOUS WEIGHT WOULD NOT REFLECT THE TRUE COST TO THE GOVERNMENT OF DESTINATION DELIVERY, A FACTOR ESSENTIAL IN SELECTING THE LOW BIDDER, WHERE UNDER AN INVITATION FOR DELIVERY TO TWO DESTINATIONS, UPON CORRECTION OF THE WEIGHT DEFECT TO ONE DESTINATION COMPETITION IS NOT ADVERSELY AFFECTED, AN AWARD MAY BE MADE TO THE LOW BIDDER REMAINING LOW AFTER THE CORRECTION; HOWEVER, CORRECTION OF THE DRUM WEIGHT ERROR TO THE SECOND DESTINATION ADVERSELY AFFECTING ANOTHER BIDDER, THAT PORTION OF THE INVITATION SHOULD BE CANCELED AND THE PROCUREMENT RESOLICITED WITH A GUARANTEED SHIPPING WEIGHT REQUIREMENT INCLUDED IN THE REISSUANCE OF THE INVITATION FOR BIDS.

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, JULY 25, 1966:

REFERENCE IS MADE TO LETTER DATED MARCH 28, 1966 (DSAH-G), AS SUPPLEMENTED BY LETTER DATED JUNE 8, FROM YOUR ASSISTANT COUNSEL, FORWARDING FOR OUR CONSIDERATION PROTESTS FROM NATIONAL FOAM SYSTEM, INC. (NATIONAL) AND CHEMICAL CONCENTRATES CORPORATION (CHEMICAL) RELATIVE TO THE AWARD OF TWO SUBITEMS, NOS. 2C AND 2D, UNDER INVITATION FOR BIDS (IFB) NO. DSA-700-66-3259, ISSUED FEBRUARY 1, 1966, BY THE DEFENSE CONSTRUCTION SUPPLY CENTER (DCSC) COLUMBUS, OHIO. THE REMAINING PROCUREMENT ITEMS, NONE OF WHICH IS INVOLVED IN THE PROTESTS, HAVE BEEN AWARDED PURSUANT TO THE PROVISIONS OF PARAGRAPH 8/C) OF THE BIDDING INSTRUCTIONS, TERMS, AND CONDITIONS (SUPPLY CONTRACT), STANDARD FORM 33-A, INCORPORATED IN THE IFB BY REFERENCE, RESERVING TO THE GOVERNMENT THE RIGHT TO ACCEPT ANY ITEM OR GROUP OF ITEMS ABSENT A CONTRARY PROVISION IN THE BID.

THE IFB SOLICITED BIDS TO FURNISH STATED QUANTITIES OF LIQUID MECHANICAL FOAM TO SEVERAL DESTINATIONS. ITEM NO. 1 CALLED FOR PACKING OF THE FOAM IN 5-GALLON PAILS, AND ITEM NO. 2 CALLED FOR PACKING IN 55-GALLON DRUMS. UNDER EACH ITEM, BIDS WERE SOLICITED ON ALTERNATE BASES---BID A, F.O.B. ORIGIN, COVERING THE TOTAL PROCUREMENT REQUIREMENT FOR ALL DESTINATIONS, AND BID B, SETTING FORTH THE REQUIREMENTS FOR EACH OF SEVERAL DESTINATIONS. ITEM NO. 2, WITH WHICH THE PROTESTS IN QUESTION ARE CONCERNED, WAS COMPRISED OF FOUR SUBITEMS. SUBITEM 2A REQUESTED AN F.O.B. ORIGIN BID ON A TOTAL QUANTITY OF 15,456 DRUMS FOR SHIPMENT IN VARYING QUANTITIES TO THE THREE DESTINATIONS INDICATED IN SUBITEMS 2B, 2C AND 2D, ON WHICH SEPARATE F.O.B. DESTINATION PRICES WERE TO BE BID. SUBITEM 2B, HEREAFTER CALLED THE COLUMBUS ITEM, COVERED 5,376 DRUMS FOR SHIPMENT TO COLUMBUS, OHIO; SUBITEM 2C, HEREAFTER CALLED THE MEMPHIS ITEM, COVERED 5,376 DRUMS FOR SHIPMENT TO MEMPHIS, TENNESSEE; AND SUBITEM 2D, HEREAFTER CALLED THE OGDEN ITEM, COVERED 4,704 DRUMS FOR SHIPMENT TO OGDEN, UTAH. FURTHER, ON PAGE 7 OF THE IFB, IT WAS STATED THAT A PREDETERMINED DRUM WEIGHT OF 565 POUNDS WOULD BE USED IN EVALUATING F.O.B. ORIGIN BIDS.

ON FEBRUARY 17, BIDS WERE OPENED AS SCHEDULED. ON SUBITEM 2A, TWO F.O.B. ORIGIN BIDS WERE RECEIVED, ONE FROM NATIONAL, QUOTING A UNIT PRICE OF $52.80, AND THE OTHER FROM THE MEARL CORPORATION (MEARL), QUOTING A UNIT PRICE OF $56.65. ON THE REMAINING SUBITEMS, THREE F.O.B. DESTINATION BIDS WERE RECEIVED AS FOLLOWS:

SUBITEM BIDDER BID PRICE

2B---COLUMBUS NATIONAL $57.13

MEARL 60.96

CHEMICAL 59.01 ($56.06 NET)

2C---MEMPHIS NATIONAL 61.73

MEARL 65.38

CHEMICAL 74.51 ($70.78 NET)

2D---OGDEN NATIONAL 71.66

MEARL 75.70

CHEMICAL 63.45 ($60.28 NET)

THE CONTRACTING OFFICER NOTED THAT CHEMICAL'S BID PRICE ON THE OGDEN ITEM WAS LOWER THAN ITS BID PRICE ON THE MEMPHIS ITEM NOTWITHSTANDING OGDEN WAS MORE DISTANT THAN MEMPHIS FROM CHEMICAL'S PLANT AT FORT WASHINGTON, PENNSYLVANIA, AND HIGHER TRANSPORTATION COSTS WOULD BE INVOLVED. ACCORDINGLY, THE CONTRACTING OFFICER COMMUNICATED WITH CHEMICAL ON FEBRUARY 17, INDICATED THE POSSIBILITY OF AN ERROR, AND REQUESTED THAT THE BID BE VERIFIED AS TO THE MEMPHIS AND OGDEN ITEMS. BY LETTER DATED FEBRUARY 18, ADDRESSED TO THE DCSC, CHEMICAL EXPLAINED THAT THE PRICE SHOWN IN ITS BID FOR THE MEMPHIS ITEM WAS INTENDED FOR THE OGDEN ITEM AND VICE VERSA, AND THAT BOTH PRICES HAD BEEN ERRONEOUSLY REVERSED IN ITS BID. WORKSHEETS FURNISHED BY CHEMICAL SHOW ON ONE PAGE A UNIT PRICE OF $74.51 FOR THE OGDEN ITEM AND A UNIT PRICE OF $63.45 FOR THE MEMPHIS ITEM, WHILE ANOTHER PAGE LISTS BOTH THE UNIT AND THE TOTAL PRICES QUOTED IN THE BID. MOREOVER, THE WORKSHEETS ALSO SHOW THAT CHEMICAL'S NET BIDS FOR ALL THREE DESTINATIONS WERE COMPUTED ON A BASE PRICE OF $51.48 PER DRUM AND INCLUDED TRANSPORTATION COSTS, SUCH COSTS FOR OGDEN BEING $19.30 PER DRUM AND FOR MEMPHIS $8.80 PER DRUM.

ON THE BASIS THAT THE MISTAKE IN CHEMICAL'S BID WAS AN APPARENT CLERICAL MISTAKE, WITHIN THE PURVIEW OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.2, THE CONTRACTING OFFICER RECOMMENDS THAT CHEMICAL'S BID BE CONSIDERED AS CORRECTED AS TO BOTH ITEMS.

IN A TELEGRAM DATED FEBRUARY 22, SUPPLEMENTED BY A LETTER OF THE SAME DATE, NATIONAL PROTESTED AWARD OF THE OGDEN ITEM TO CHEMICAL ON THE BASIS THAT THERE WAS AN OBVIOUS MISTAKE IN THE BID PRICE WHICH SHOULD DISQUALIFY THE BID FROM CONSIDERATION FOR AWARD, AND CONTENDED THAT ITS F.O.B. ORIGIN PRICE WOULD BE MOST ADVANTAGEOUS TO THE GOVERNMENT.

IN A LETTER DATED MARCH 4, CHEMICAL PROTESTED AWARD OF EITHER ITEM TO NATIONAL ON TWO GROUNDS. FIRST, CHEMICAL ASSERTED THAT THE TRUE DRUM WEIGHT IS 580 OR MORE POUNDS, NOT 565 POUNDS EACH AS STATED IN THE IFB; THEREFORE, THE TRANSPORTATION COSTS TO BE ADDED TO NATIONAL'S F.O.B. ORIGIN BID PRICES SHOULD BE HIGHER THAN THE COSTS BASED ON A 565-POUND DRUM. SECOND, CHEMICAL STATED, SPECIAL FREIGHT RATES APPLIED BY DCSC IN EVALUATING THE MEMPHIS ITEM ON AN F.O.B. ORIGIN BASIS SHOULD NOT BE USED SINCE THE CARRIER OFFERING SUCH RATES IS NOT RELIABLE. ACCORDINGLY, WHEN THE CORRECT DRUM WEIGHT IS USED TO EVALUATE BOTH ITEMS AND, FURTHER, WHEN THE REGULAR RATES CHARGED BY RELIABLE CARRIERS ARE USED IN EVALUATING THE MEMPHIS ITEM, NATIONAL'S F.O.B. ORIGIN BID ON BOTH ITEMS IS HIGHER THAN CHEMICAL'S F.O.B. DESTINATION BID, AS CORRECTED.

IN SUPPLEMENTARY CORRESPONDENCE, CHEMICAL'S ATTORNEY HAS CITED VARIOUS RECENT F.O.B. ORIGIN SHIPMENTS TO MEMPHIS ON WHICH THE CARRIER IN QUESTION FAILED TO PROVIDE THE REQUIRED TRANSPORTATION WITH THE RESULT THAT THE GOVERNMENT HAD TO PAY HIGHER RATES THAN WERE CONTEMPLATED WHEN THE CONTRACTS WERE AWARD. ALSO, IT IS CONTENDED THAT NATIONAL HAS NOT BEEN PREJUDICED BY THE INCORRECT DRUM WEIGHT GIVEN IN THE IFB SINCE NATIONAL'S F.O.B. DESTINATION PRICE ON THE OGDEN ITEM CAN BE COMPUTED BY ADDING TO NATIONAL'S F.O.B. ORIGIN PRICE TRANSPORTATION CHARGES TO OGDEN APPLICABLE TO A 592-POUND DRUM, THUS INDICATING THAT NATIONAL USED A 592-POUND DRUM WEIGHT IN COMPUTING ITS BID. ACCORDINGLY, CHEMICAL CLAIMS, SINCE THE MISTAKE IN ITS OWN BID WAS CLERICAL AND THEREFORE PROPERLY FOR CORRECTION UNDER ASPR 2-406.2 AND SINCE CHEMICAL IS LOW AS TO BOTH ITEMS BASED ON ITS BID AS SO CORRECTED, AWARD OF BOTH ITEMS SHOULD BE MADE TO CHEMICAL.

IN A TELEGRAM AND LETTER DATED MARCH 11, NATIONAL PROTESTS AWARD OF THE TWO ITEMS TO ANY OTHER BIDDER. NATIONAL ASSERTS THAT CHEMICAL HAD THE OPTION, AS DID ALL BIDDERS, TO SUBMIT AN F.O.B. ORIGIN BID, IN WHICH CASE THE SPECIAL RATES AVAILABLE TO MEMPHIS WOULD HAVE BEEN USED IN EVALUATING CHEMICAL'S BID; THAT SUCH RATES SHOULD BE USED, NATIONAL HAVING USED THE CARRIER IN QUESTION SUCCESSFULLY ON PAST SHIPMENTS; AND THAT CHEMICAL, NOT HAVING QUESTIONED THE IFB PROVISIONS PRIOR TO BID OPENING, MAY NOT NOW PROTEST SUCH PROVISIONS. IN SUBSEQUENT CORRESPONDENCE, NATIONAL'S ATTORNEY HAS PROTESTED CONSIDERATION OF CHEMICAL'S BID AS CORRECTED, CONTENDING THAT WHILE THE EXISTENCE OF A MISTAKE IN CHEMICAL'S BID ON THE OGDEN ITEM IS APPARENT FROM THE BID ITSELF, NATIONAL DOES NOT CONCEDE THAT CHEMICAL MADE A MISTAKE IN ITS PRICE OF $74.51 ON THE MEMPHIS ITEM, CHEMICAL HAVING QUOTED, ON AN F.O.B. DESTINATION BASIS, A UNIT PRICE OF $69.90 FOR MEMPHIS UNDER IFB NO. DSA-7-65-1124, OPENED NOVEMBER 25, 1964. WITH RESPECT TO THE OGDEN ITEM, IT IS CONTENDED THAT CHEMICAL HAS NOT PROVED ITS INTENDED BID PRICE BY SUBSTANTIAL EVIDENCE, AS REQUIRED BY ASPR 2-406.3, AND THAT IN VIEW OF THE PRICES BID BY CHEMICAL FOR OGDEN IN SIMILAR PROCUREMENTS, RANGING FROM $79.40 IN NOVEMBER 1964 TO $84 IN JANUARY 1966, CHEMICAL MIGHT WELL HAVE INTENDED TO BID $80.32 (AFTER DISCOUNT) RATHER THAN $60.32 (AFTER G.P.O---NOTE UNDERSCORE OF $-80.32 AND $-6 0.32--P. 129------------DISCOUNT) ON THE OGDEN ITEM. ACCORDINGLY, IT IS NATIONAL'S POSITION THAT THE CHEMICAL BID, AT LEAST ON THE OGDEN ITEM, SHOULD BE WITHDRAWN, AND THAT AWARD OF BOTH THE MEMPHIS AND OGDEN ITEMS SHOULD BE MADE TO NATIONAL. NO QUESTION IS RAISED BY NATIONAL CONCERNING THE INCORRECT DRUM WEIGHT STATED IN THE IFB, NOR IS THERE ANY INDICATION IN NATIONAL'S BID OR IN ITS PROTEST OF THE WEIGHT WHICH NATIONAL USED IN COMPUTING ITS BID.

THE CONTRACTING OFFICER ADHERES TO HIS VIEW THAT THE MISTAKE IN CHEMICAL'S BID IS OF A CLERICAL NATURE WHICH MAY BE CORRECTED UNDER ASPR 2 -406.2, AND, THEREFORE, CHEMICAL'S BID SHOULD BE CORRECTED TO READ $63.45 PER DRUM FOR THE MEMPHIS ITEM AND $74.51 PER DRUM FOR THE OGDEN ITEM. THIS CONNECTION, THERE IS CITED 16 COMP. GEN. 999, INVOLVING ONE UNIT OF AN ITEM FOR DELIVERY TO ONE DESTINATION ONLY, IN WHICH A MISTAKE DUE TO TRANSPORTATION OF THE ORIGIN AND DESTINATION PRICES BID ON THE ITEM WAS HELD TO BE AN OBVIOUS ERROR WHICH MIGHT BE CORRECTED BY THE CONTRACTING OFFICER WITHOUT SUBMISSION OF THE MATTER TO OUR OFFICE.

CONCERNING THE QUOTATION BY CHEMICAL OF HIGHER PRICES FOR OGDEN SHIPMENTS ON PRIOR PROCUREMENTS THAN ON THE INSTANT PROCUREMENT, THE CONTRACTING OFFICER POINTS TO THE FACT THAT THE MUCH SMALLER QUANTITIES IN THE PRIOR PROCUREMENTS (I.E; 30 DRUMS, 50 DRUMS, AND 2,640 DRUMS) MIGHT ACCOUNT FOR THE HIGHER PRICES, THE TRANSPORTATION RATES FOR SMALLER SHIPMENTS BEING HIGHER THAN THE RATES APPLICABLE TO CARLOAD SHIPMENTS.

REGARDING THE WEIGHT OF THE DRUMS, IT IS REPORTED THAT RECORDS OF PRIOR SHIPMENTS OF THE SAME ITEM INDICATE THAT THE WEIGHT OF A FILLED DRUM, WHICH MAY RANGE BETWEEN 585 AND 600 POUNDS, IS DEPENDENT ON THE SPECIFIC GRAVITY OF THE FOAM AND THE CONSTRUCTION OF THE DRUM, THE AVERAGE WEIGHT FOR A FILLED DRUM BEING 592 POUNDS. THE 565-POUND WEIGHT INDICATED IN THE IFB IS STATED TO BE THE RESULT OF A CLERICAL ERROR. FURTHER, IT IS REPORTED THAT BECAUSE OF THE ALLOWABLE VARIATIONS IN THE WEIGHT OF THE FOAM AND OF THE DRUM, GUARANTEED SHIPPING WEIGHTS WILL BE REQUIRED IN FUTURE SIMILAR PROCUREMENTS. WITH SPECIFIC REFERENCE TO NATIONAL'S BID, IT IS REPORTED THAT ON THE MEMPHIS REQUIREMENT, EVEN BY USING THE MAXIMUM FILLED DRUM WEIGHT OF 600 POUNDS, NATIONAL REMAINS LOW ON ITS F.O.B. ORIGIN BID BASED ON THE USE OF THE SPECIAL TRANSPORTATION RATES OFFERED BY THE CARRIER WHOSE SERVICE CHEMICAL CLAIMS IS UNRELIABLE. IT IS FURTHER REPORTED THAT ON THE OGDEN REQUIREMENT, ON WHICH NATIONAL IS LOW ON AN F.O.B. ORIGIN BASIS USING THE 565-POUND DRUM WEIGHT STATED IN THE IFB, THE USE OF EVEN A MINIMUM DRUM WEIGHT OF 580 POUNDS TO EVALUATE NATIONAL'S F.O.B. ORIGIN BID RESULTS IN THE DISPLACEMENT OF NATIONAL BY CHEMICAL SINCE CHEMICAL'S BID FOR THE OGDEN ITEM, BOTH AS CORRECTED AND UNCORRECTED, IS LOWER.

WITH RESPECT TO THE CARRIER WHOSE SPECIAL RATES TO MEMPHIS WERE USED IN EVALUATING THE NATIONAL F.O.B. ORIGIN BID ON THE MEMPHIS REQUIREMENT, THE CONTRACTING OFFICER STATES THAT SUCH RATES WERE USED PURSUANT TO ASPR 1- 1313.1, WHICH REQUIRES THE USE OF THE BEST AVAILABLE TRANSPORTATION RATES IN EFFECT PRIOR TO THE EXPECTED DATE OF THE INITIAL SHIPMENT OR PUBLISHED ON THE DATE OF BID OPENING. FURTHER, THE DIRECTORATE OF FREIGHT TRAFFIC, HEADQUARTERS, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS) IN A MEMORANDUM DATED MAY 13, 1966, MAKES THE FOLLOWING PERTINENT STATEMENTS:

3. MALONE FREIGHT LINES IS A COMMON CARRIER POSSESSING A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE INTERSTATE COMMERCE COMMISSION. TO THE EXTENT AUTHORIZED IN THE CARRIER'S CERTIFICATE, IT MUST BE PRESUMED TO BE FIT, WILLING AND ABLE TO PERFORM THE SERVICES IN ACCORDANCE WITH THE REQUIREMENTS, RULES AND REGULATIONS OF THE COMMISSION. MALONE RANKS EXTREMELY HIGH AS TO THE NUMBER OF SHIPMENTS HANDLED FOR THE DOD AND ALTHOUGH THER IS A RECORD OF SOME POOR SERVICE OR REFUSAL OF SHIPMENTS, THESE ARE INSIGNIFICANT. IT MIGHT BE POINTED OUT ALSO THAT CONSIDERABLE ECONOMY ACCRUES TO THE SHIPPER DUE TO MALONE'S GENERALLY DEPRESSED RATES.

4. THEREFORE, IN FULL RECOGNITION OF SOME OF THE DEFICIENCIES ASSOCIATED WITH MALONE'S SERVICE, THE PUBLISHED RATES OF THE CARRIER SHOULD BE CONSIDERED IN BID EVALUATIONS AS WELL AS THE ROUTING OF DOD TRAFFIC.

IN VIEW OF THE MTMTS REPORT AND ON THE BASIS THAT THE USE OF THE CORRECT WEIGHT FOR THE DRUMS DOES NOT AFFECT THE STANDING OF THE BIDDERS ON THE MEMPHIS ITEM, HEADQUARTERS, DSA, RECOMMENDS THAT AWARD OF THE MEMPHIS ITEM BE MADE TO NATIONAL AT ITS F.O.B. ORIGIN BID PRICE. AS TO THE OGDEN ITEM, HOWEVER, IT IS RECOMMENDED, IN VIEW OF THE FACT THAT THE USE OF THE CORRECT DRUM WEIGHT CONSTITUTES EVALUATION ON A BASIS OTHER THAN STATED IN THE INVITATION, THAT THE ITEM BE CANCELED AND RESOLICITED. CONCERNING THE MISTAKE IN CHEMICAL'S BID, IT IS ASSERTED THAT BOTH THE MISTAKE AND THE INTENDED BID ARE ASCERTAINABLE FROM THE BID AND THAT SINCE NATIONAL WILL NOT BE DISPLACED ON THE MEMPHIS ITEM AND SINCE CHEMICAL IS LOW ON THE OGDEN ITEM BEFORE AND AFTER CORRECTION, CHEMICAL'S WORKSHEETS COULD BE USED, IF NECESSARY, TO ESTABLISH ITS INTENDED BID. ASPR 2-406.2, PERTAINING TO APPARENT CLERICAL MISTAKES, READS AS FOLLOWS:

ANY CLERICAL MISTAKE APPARENT ON THE FACE OF A BID MAY BE CORRECTED BY THE CONTRACTING OFFICER PRIOR TO AWARD, IF THE CONTRACTING OFFICER HAS FIRST OBTAINED FROM THE BIDDER WRITTEN OR TELEGRAPHIC VERIFICATION OF THE BID ACTUALLY INTENDED. EXAMPLES OF SUCH APPARENT MISTAKES ARE: OBVIOUS ERROR IN PLACING DECIMAL POINT; OBVIOUS DISCOUNT ERRORS (FOR EXAMPLE---1 PERCENT 10 DAYS, 2 PERCENT 20 DAYS, 5 PERCENT 30 DAYS); OBVIOUS REVERSAL OF THE PRICE F.O.B. DESTINATION AND THE PRICE F.O.B. FACTORY; OBVIOUS ERROR IN DESIGNATION OF UNIT. CORRECTION OF THE BID WILL BE EFFECTED BY ATTACHING THE VERIFICATION TO THE ORIGINAL BID AND A COPY OF THE VERIFICATION TO THE DUPLICATE BID. CORRECTION WILL NOT BE MADE ON THE FACE OF THE BID; HOWEVER, IT SHALL BE REFLECTED IN THE AWARD DOCUMENT.

ASPR 2-406.3/A), PERTAINING TO MISTAKES OTHER THAN CLERICAL, ALLEGED AFTER BID OPENING BUT PRIOR TO AWARD, READS, IN PERTINENT PART, AS FOLLOWS:

(2) HOWEVER, IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO 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.

TO INVOKE THE AUTHORITY CONTAINED IN ASPR 2-406.2, THE BID MISTAKE SOUGHT TO BE CORRECTED MUST BE OBVIOUS ON THE FACE OF THE BID; THAT IS, THE CONTRACTING OFFICER, WITHOUT BENEFIT OF ADVICE FROM THE BIDDER, MUST BE ABLE TO ASCERTAIN THE INTENDED BID. IN THE INSTANT CASE, THE PRICES OF ALL THREE BIDDERS WERE LOWEST ON THE COLUMBUS ITEM, THEIR PRICES RANGING FROM THE NET LOW OF $56.06 OFFERED BY CHEMICAL TO THE HIGH OF $60.96 OFFERED BY MEARL. ON THE REMAINING TWO ITEMS, HOWEVER, NATIONAL AND MEARL WERE LOWER BY APPROXIMATELY $10 ON THEIR MEMPHIS ITEM PRICES THAN ON THEIR OGDEN ITEM PRICES, WHILE CHEMICAL WAS HIGHER BY APPROXIMATELY THE SAME AMOUNT ON ITS MEMPHIS ITEM PRICE THAN IT WAS ON ITS OGDEN PRICE. IN SUCH CIRCUMSTANCES, THERE BEING NO REASON TO CONCLUDE THAT THE COLUMBUS ITEM BID PRICES WERE OUT OF ORDER, THE ONLY LOGICAL CONCLUSION, IN OUR VIEW, IS THE ONE DRAWN BY THE CONTRACTING OFFICER AND VERIFIED BY CHEMICAL, I.E; THAT CHEMICAL'S UNIT PRICES ON THE MEMPHIS AND OGDEN ITEMS WERE STATED IN REVERSE. ACCORDINGLY, IT IS OUR FURTHER VIEW THAT THE CIRCUMSTANCES ARE ANALOGOUS TO THOSE CONSIDERED IN 16 COMP. GEN. 999 AND, THEREFORE, CORRECTION OF THE MISTAKE IS AUTHORIZED UNDER ASPR 2-406.2 AND CHEMICAL'S BID SHOULD BE CONSIDERED AS CORRECTED. IN VIEW OF OUR CONCLUSION ON THIS POINT, NO DISCUSSION IS REQUIRED OF NATIONAL'S CONTENTIONS REGARDING THE EVIDENCE SUBMITTED BY CHEMICAL OF ITS MISTAKE AND INTENDED BID OR OF THE PRICE HISTORY OF CHEMICAL'S BIDS ON THE PROCUREMENT ITEM, THE MATTER BEING RESOLVED ON THE BASIS OF THE BID ALONE WITHOUT NEED FOR REFERENCE TO ANY EXTRANEOUS EVIDENCE.

ASPR 1-1313.2 REQUIRES CONTRACTING OFFICERS TO OBTAIN FROM THE TRANSPORTATION OFFICERS OR AGENCY DESIGNATED BY DEPARTMENTAL PROCEDURES INFORMATION AS TO THE BEST AVAILABLE TRANSPORTATION RATES, WHICH ARE REQUIRED BY ASPR 1-1313 TO BE USED IN THE EVALUATION OF F.O.B. ORIGIN BIDS. NO PROVISION IS MADE IN ASPR FOR EVALUATING THE RESPONSIBILITY OF CARRIERS. FURTHER, WHEN PREFERENTIAL RATES ARE OFFERED TO THE GOVERNMENT BY CARRIERS PURSUANT TO SECTION 22/1) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 22, SUCH RATES, WHEN AVAILABLE, SHOULD BE USED IN THE EVALUATION OF F.O.B. ORIGIN BIDS. 19 COMP. GEN. 233; 39 ID. 774.

IN THE LIGHT OF THE PROVISIONS OF ASPR 1-1313 AND OF THE STATEMENT OF MTMTS CONCERNING THE USE OF THE CARRIER OFFERING THE PREFERENTIAL RATES TO THE GOVERNMENT ON SHIPMENTS TO MEMPHIS, WE SEE NO LEGAL BASIS FOR OBJECTION TO THE USE OF SUCH RATES IN THE EVALUATION OF NATIONAL'S F.O.B. ORIGIN BID ON THE MEMPHIS ITEM. ACCORDINGLY, WE MUST CONCUR WITH THE POSITION OF HEADQUARTERS, DSA, IN THIS RESPECT.

CONCERNING THE SPECIFICATION IN THE IFB OF AN ERRONEOUS 565-POUND DRUM WEIGHT TO BE USED IN EVALUATING F.O.B. ORIGIN BIDS, IT IS OBVIOUS THAT THE USE OF SUCH WEIGHT WOULD NOT REFLECT THE TRUE COST TO THE GOVERNMENT OF DELIVERY OF THE PROCUREMENT ITEM TO DESTINATION, A FACTOR WHICH IS ESSENTIAL IN SELECTING THE LOW BIDDER ON AN F.O.B. ORIGIN BASIS. 37 COMP. GEN. 162, 164; 10 ID. 402, 404. THEREFORE, THE USE OF THE 565-POUND WEIGHT TO EVALUATE THE F.O.B. ORIGIN BID IN THIS CASE IS NOT PROPER AND MAY NOT BE AUTHORIZED. FURTHER, INASMUCH AS THE WEIGHT OF THE PROCUREMENT ITEM IS KNOWN TO VARY, THE IFB SHOULD HAVE INCLUDED A PROVISION REQUIRING THE BIDDERS TO STATE A GUARANTEED MAXIMUM SHIPPING WEIGHT AND THE SUCCESSFUL BIDDER TO ABSORB THE TRANSPORTATION COSTS FOR ANY EXCESS WEIGHT. ASPR 1-1305.1 (III) AND 2 201/B); 39 COMP. GEN. 684, 695.

UNDER ORDINARY CIRCUMSTANCES, THE IFB MIGHT BE REGARDED AS SO DEFECTIVE AS TO REQUIRE READVERTISING OF BOTH THE MEMPHIS AND OGDEN ITEMS. HOWEVER, WHERE COMPETITION HAS NOT BEEN ADVERSELY AFFECTED, WHERE THE AGENCY WOULD ENTER INTO A BINDING CONTRACT FOR WHAT IT WANTED, AND WHERE NO BIDDER OBTAINED AN OPTION OR OTHER UNDUE ADVANTAGE BECAUSE OF THE DEFECT IN THE INVITATION, WE HAVE, INSTEAD OF REQUIRING THAT THE PROCUREMENT BE READVERTISED, PERMITTED AWARD UNDER THE INVITATION WITH THE OMISSION OR CORRECTION OF THE PROVISION WHICH WOULD OTHERWISE RENDER THE AWARD INVALID. 43 COMP. GEN. 23, 26; 40 ID. 561, 563; 39 ID. 834; ID. 563; B- 147370, MARCH 28, 1962.

IN THIS CASE, EVALUATION OF THE F.O.B. ORIGIN BIDS ON THE BASIS OF ANY OF THE KNOWN FILLED DRUM WEIGHTS, RANGING FROM 580 TO 600 POUNDS, FAILS TO CHANGE THE STANDING OF THE BIDDERS ON THE MEMPHIS ITEM. ACCORDINGLY, AS TO SUCH ITEM, THE STATEMENT IN THE IFB OF THE INCORRECT DRUM WEIGHT OBVIOUSLY DOES NOT ADVERSELY AFFECT COMPETITION, NO BIDDER HAS GAINED AN UNDUE ADVANTAGE BY REASON OF THE DEFECT, AND ACCEPTANCE OF NATIONAL'S LOW F.O.B. ORIGIN BID PRICE ON THE ITEM WILL RESULT IN A BINDING CONTRACT FOR THE DESIRED PROCUREMENT ITEM AT THE LOWEST PRICE TO THE GOVERNMENT. THEREFORE, WE SEE NO LEGAL OBJECTION TO AWARD OF THE MEMPHIS ITEM TO NATIONAL AT ITS F.O.B. ORIGIN BID PRICE, AS RECOMMENDED BY THE CONTRACTING OFFICER AND HEADQUARTERS, DSA. AS TO THE OGDEN ITEM, HOWEVER, CORRECTION OF THE DRUM WEIGHT TO EVEN THE LOWEST KNOWN VARIABLE OF 580 POUNDS RESULTS IN A CHANGE IN THE STANDING OF THE BIDDERS. THUS, NATIONAL, WHOSE F.O.B. ORIGIN BID OF $52.80 IS EVALUATED AT $70.77 BY USING THE 565-POUND DRUM WEIGHT SPECIFIED IN THE IFB, WOULD BE DISPLACED BY CHEMICAL SINCE CHEMICAL'S F.O.B. DESTINATION BID PRICE OF $70.78 WOULD BE LOWER THAN NATIONAL'S F.O.B. ORIGIN BID EVALUATED AT $71.24 BY USING A 580-POUND DRUM WEIGHT. TO SUCH EXTENT, IT IS APPARENT THAT NATIONAL HAS BEEN ADVERSELY AFFECTED BY, AND THAT CHEMICAL WOULD BENEFIT FROM, THE INVITATION DEFECT. FURTHER, THE FACT THAT CHEMICAL WAS LOWEST ON THE OGDEN ITEM BEFORE CORRECTION OF ITS BID HAS NO BEARING ON THE ISSUE SINCE CHEMICAL'S CORRECTED BID PRICE IS THE ONLY ONE WHICH MAY BE CONSIDERED. ACCORDINGLY, WE MUST CONCUR WITH THE RECOMMENDATION OF THE CONTRACTING OFFICER AND OF HEADQUARTERS, DSA, THAT THE OGDEN ITEM SHOULD BE CANCELED AND THE REQUIREMENT RESOLICITED WITH A GUARANTEED SHIPPING WEIGHT REQUIREMENT BEING USED IN ANY IFB HEREAFTER ISSUED FOR THE PROCUREMENT OF THE ITEM.