B-158958, JUN. 6, 1966, 45 COMP. GEN. 754

B-158958: Jun 6, 1966

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THE DETERMINATION OF THE CONTRACTING OFFICER TO TREAT THE FAILURE TO CHANGE THE WORD "ADD" TO "DEDUCT" AS A CLERICAL ERROR BEING REASONABLE AND WITHIN THE PRINCIPLE THAT A DOWNWARD CORRECTION THAT DISPLACES ONE OR MORE BIDS MAY BE PERMITTED WHEN THE MISTAKE AND INTENDED BID ARE ASCERTAINABLE FROM THE INVITATION AND BID. THE CORRECTION OF THE ERROR IS ACCEPTABLE AND AN AWARD ON THE BASIS OF THE CORRECTED BID IS PROPER. 1966: REFERENCE IS MADE TO YOUR LETTER OF APRIL 12. ALTERNATE "A" SOLICITED A PRICE FOR OMITTING CERTAIN ITEMS FROM THE WORK UPON WHICH THE BASE BID WAS BASED. ALTERNATE "B" SOLICITED A BID FOR SUBSTITUTING DEMOUNTABLE PANEL-TYPE PARTITIONS FOR THE MOVABLE METAL PARTITIONS ALSO INCLUDED IN THE WORK UPON WHICH THE BASE BID WAS COMPUTED.

B-158958, JUN. 6, 1966, 45 COMP. GEN. 754

BIDS - MISTAKES - CORRECTIONS - LOW BID REPLACEMENT A MISTAKE IN BID ATTRIBUTABLE TO THE USE OF THE WORD "ADD" INSTEAD OF "DEDUCT" ON THE FORM INVITING BIDS ON ALTERNATIVES FOR THE PURPOSE OF OBTAINING REDUCED PRICES IN THE EVENT THE BASE BID EXCEEDED THE FINAL LIMITATION MAY BE CORRECTED AS A CLERICAL ERROR, NOTWITHSTANDING DISPLACEMENT OF THE LOW BID, THE WORKSHEETS SUBSTANTIATING THE INTENT TO DEDUCT THE COST OF THE ALTERNATE AND NOT TO INCREASE THE TOTAL BID BY ADDING THE COST OF THE ALTERNATE, AND THE MAJORITY OF THE BIDDERS HAVING BID ON A DEDUCTIVE BASIS FOR THE ALTERNATE; THEREFORE, THE DETERMINATION OF THE CONTRACTING OFFICER TO TREAT THE FAILURE TO CHANGE THE WORD "ADD" TO "DEDUCT" AS A CLERICAL ERROR BEING REASONABLE AND WITHIN THE PRINCIPLE THAT A DOWNWARD CORRECTION THAT DISPLACES ONE OR MORE BIDS MAY BE PERMITTED WHEN THE MISTAKE AND INTENDED BID ARE ASCERTAINABLE FROM THE INVITATION AND BID, THE CORRECTION OF THE ERROR IS ACCEPTABLE AND AN AWARD ON THE BASIS OF THE CORRECTED BID IS PROPER.

TO BERNARD SHRIBER, JUNE 6, 1966:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 12, 1966, PROTESTING THE ADMINISTRATION ACTION IN ALLOWING A.P. WHITAKER AND SONS, INC., TO CORRECT ITS BID, DISPLACE AN OTHERWISE LOW BIDDER, AND RECEIVE AN AWARD OF GENERAL SERVICES ADMINISTRATION CONTRACT GS-01B-PCC-0405 BASED UPON THE BID AS CORRECTED.

THE INVITATION FOR BIDS SOLICITED A BASE BID AND A BID ON EACH OF TWO ALTERNATES DESIGNATED "A" AND "B.' ALTERNATE "A" SOLICITED A PRICE FOR OMITTING CERTAIN ITEMS FROM THE WORK UPON WHICH THE BASE BID WAS BASED. ALTERNATE "B" SOLICITED A BID FOR SUBSTITUTING DEMOUNTABLE PANEL-TYPE PARTITIONS FOR THE MOVABLE METAL PARTITIONS ALSO INCLUDED IN THE WORK UPON WHICH THE BASE BID WAS COMPUTED. BOTH ALTERNATES WERE INCLUDED IN THE INVITATION BECAUSE IT WAS BELIEVED THAT THERE WOULD BE OBTAINED REDUCED PRICES WHICH COULD BE APPLIED IN THE EVENT THE BASE BIDS EXCEEDED--- AS IN FACT THEY DID--- THE FUND LIMITATION ON THE PROJECT. BEFORE THE SPACE WHERE THE BIDDER WAS TO INDICATE ITS PRICE FOR ALTERNATE "A," THERE APPEARED THE WORD "DEDUCT," AND WHILE IT WAS INTENDED THAT THE SAME WORD APPEAR ON THE ALTERNATE "B" PRICE LINE, THROUGH ERROR THE WORD "ADD" WAS USED INSTEAD.

ELEVEN FIRMS BID ON THE PROJECT. SEVEN BIDDERS CHANGED THE WORD "ADD" TO "DEDUCT.' THREE BIDDERS, INCLUDING A.P. WHITAKER AND SONS, INC., LEFT THE WORD "ADD" AS IT WAS. YOUR COMPANY BID "NO CHANGE.'

EVALUATED ON THE BASIS OF THE BASE BID AND ALTERNATES "A" AND "B," THE BID OF WELBILT CONSTRUCTION, INC., WHICH INCLUDES A DEDUCTIVE PRICE FOR ALTERNATE "B," TOTALS $178,900 AND IS THE LOW BID. EVALUATION OF THE BID OF WHITAKER ON THE SAME BASIS, WHICH, AS NOTED, INCLUDED AN ADDED PRICE FOR ALTERNATE "B," RESULTS IN A TOTAL BID OF $180,715. HOWEVER, INQUIRY WAS MADE OF WHITAKER AS TO WHETHER THE $3,000 AMOUNT SHOWN IN THE BID FOR ALTERNATE "B" WAS INTENDED TO BE AN ADD FIGURE. WHITAKER ADVISED THAT IT SHOULD HAVE BEEN SHOWN AS A DEDUCTION, BUT THAT IN THE HASTE OF PREPARING THE BID IT HAD FAILED TO ALTER THE BID FORM. WHITAKER FURNISHED ITS ORIGINAL BIDDING WORKSHEETS TOGETHER WITH OFFERS IT HAD RECEIVED ON THE PARTITION WORK FROM PROSPECTIVE SUBCONTRACTORS ALL OF WHICH SUBSTANTIATE WHITAKER'S INTENT.

THE WORD "ADD" WAS INSERTED ON THE BID FORM IN ERROR BY THE CONTRACTING OFFICE AND AS FAR AS THE CONTRACTING OFFICER WAS CONCERNED ALTERNATE "B" REQUIRED LESS EXPENSIVE PANELS THAN WERE OTHERWISE REQUIRED AND SHOULD HAVE PRODUCED A SAVINGS IN COST. IN VIEW THEREOF AND THE FACT THAT SEVEN BIDDERS HAD CHANGED THE WORD "ADD" TO "DEDUCT" IN THEIR BIDS, THE CONTRACTING OFFICER WAS SATISFIED THAT, IN NOT DOING SO, WHITAKER HAD MADE A CLERICAL ERROR, SUBSTANTIATED BY ITS WORKSHEETS, WHICH SHOULD BE CORRECTED. ACCORDINGLY, ITS BID WAS TREATED AS ONE FOR $174,715 AND AWARD WAS MADE TO IT ON THAT BASIS.

YOU PROTEST THE ACTION OF THE CONTRACTING OFFICER BECAUSE YOU SAY THERE IS NO UNANIMITY OF OPINION THAT ALTERNATE "B" CALLED FOR A DECREASE IN PRICE. IN THAT CONNECTION, YOU POINT OUT THAT TWO BIDDERS BESIDES WHITAKER BID "ADD" PRICES AND YOU BID "NO CHANGE.' YOU ALSO STATE THAT WHEN THE SAME ALTERNATE APPEARED IN ANOTHER INVITATION FOR BIDS, EXCEPT THAT THERE THE WORD "DEDUCT" WAS USED, YOUR COMPANY IN BIDDING THE JOB CROSSED OUR "DEDUCT" AND REPLACED IT WITH "ADD" AND ANOTHER BIDDER IN LIEU OF AN AMOUNT WROTE "NO CHANGE.' MOREOVER, YOU SUGGEST THAT THE CORRECTION IS IMPROPER BECAUSE IF THE CONTRACTOR HAD BEEN THE LOW OVERALL BIDDER WITHOUT THE BENEFIT OF THE CORRECTION IN BID, THE GOVERNMENT COULD NOT HAVE REQUIRED A REDUCTION IN THE BID PRICE ON THE ALTERNATE IF THE BIDDER REFUSED TO GRANT IT. YOU STATE FURTHER THAT YOU DO NOT BELIEVE THAT A BIDDER SHOULD BE ALLOWED TO CORRECT A BID WHEN IT WILL DISPLACE ANOTHER BIDDER.

WE RECOGNIZE THAT, IN THE LIGHT OF THE BIDS RECEIVED, IT MIGHT BE SAID THAT THE BIDDERS WERE NOT ALL OF THE OPINION THAT THE ALTERNATE WOULD RESULT IN A REDUCTION IN BID PRICE. HOWEVER, WE ALSO THINK IT IS ENTIRELY POSSIBLE THAT THE TWO OTHER BIDDERS WHO BID IN THE SAME MANNER AS WHITAKER WERE PERSUADED TO DO SO BECAUSE OF THE ERROR IN THE BID FORM. BUT EVEN IF THEY WERE NOT, AND ALTHOUGH ON ANOTHER INVITATION YOUR COMPANY PURPOSELY CHANGED A DEDUCT TO AN ADD FOR THE SAME ITEM, THE FACT REMAINS THAT THE MAJORITY OF THE BIDDERS INDICATED, AND THE CONTRACTING OFFICER BELIEVES, THAT THE ITEM IS ONE WHICH SHOULD NORMALLY PRODUCE LOWER RATHER THAN HIGHER PRICES. IN SUPPORT OF THIS, THE GENERAL SERVICES ADMINISTRATION HAS ADVISED US THAT UPON A REVIEW OF 12 OTHER PROJECTS IN SEVERAL DIFFERENT REGIONS, ALL INVOLVING AN ALTERNATE DEMOUNTABLE PANEL-TYPE PARTITION IN LIEU OF MOVABLE METAL PARTITIONS AS IN THE INSTANT CASE, IT HAS FOUND THAT IT IS EXTREMELY RARE THAT A BIDDER WILL BID AN ADDITIVE PRICE FOR THE ALTERNATE. IT HAS FOUND THAT IN RESPECT TO 94 BIDS RECEIVED OVER 12 PROJECTS, ONLY 1 BIDDER BID ON AN ADDITIVE BASIS, 90 BIDDERS HAVING BID ON A DEDUCTIVE BASIS AND ONLY 3 HAVING BID NO CHANGE. IT WOULD THEREFORE APPEAR THAT, WHILE NOT ENTIRELY FREE FROM DOUBT, BIDDERS GENERALLY COULD HAVE BEEN EXPECTED TO BID A DEDUCTIVE PRICE FOR THE ALTERNATE, AND, AS A MATTER OF PRACTICE, WITH VERY FEW EXCEPTIONS, THEY DO BID A DEDUCTIVE PRICE FOR THE ALTERNATE. THUS, THERE APPEARS TO BE A SUBSTANTIAL BASIS FOR THE VIEW THAT SUCH AN ITEM WOULD HAVE BEEN BID AS A DEDUCTIVE ITEM IF THE PRICE LINE HAD BEEN CAPTIONED ,DEDUCT" AS WAS INTENDED. IT FOLLOWS, THEN, THAT THE CONTRACTING OFFICER'S DETERMINATION THAT THE ALTERNATE SHOULD PRODUCE A DEDUCTIVE PRICE WAS JUSTIFIED, AND HAVING REACHED THAT RESULT, HIS TREATMENT OF THE BIDDER'S FAILURE TO CHANGE "ADD" TO "DEDUCT" AS A CLERICAL MISTAKE WAS REASONABLE. THEREFORE, AND CONSIDERING THAT THE CONTRACTOR'S MISTAKE WAS ATTRIBUTABLE TO THE GOVERNMENT'S ERROR IN THE BID FORM, OUR OFFICE IS NOT INCLINED TO DISTURB THE CONTRACTING OFFICER'S DETERMINATION.

WHILE YOU SUGGEST THAT THE GOVERNMENT MIGHT NOT HAVE BEEN ABLE TO OBTAIN A REDUCTION ON THE ALTERNATE IF THE SUCCESSFUL BIDDER HAD BEEN LOW IN ANY EVENT, THE GOVERNMENT IS NOT FACED WITH THAT SITUATION AND IT IS NOT NECESSARY TO CONSIDER WHAT WOULD HAVE BEEN DONE BY THE BIDDER OR THE GOVERNMENT IN THAT EVENT.

WE CAN APPRECIATE YOUR CONCERN OVER A CORRECTION WHICH PERMITS A BID NOT OTHERWISE LOW TO BECOME LOW. THAT IS WHY IN CASES WHERE THERE IS PRESENTED FOR OUR CONSIDERATION A DOWNWARD CORRECTION WHICH WOULD DISPLACE ONE OR MORE OTHER BIDS, OUR OFFICE HAS PERMITTED THE CORRECTION ONLY WHEN THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED WERE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. COMP. GEN. 469, 472. IN THE CIRCUMSTANCES OF THIS CASE WE THINK THAT THE CONTRACTING OFFICER CAN BE SAID TO HAVE APPLIED THAT PRINCIPLE.