B-158962, MAY 11, 1966, 45 COMP. GEN. 682

B-158962: May 11, 1966

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WHERE NO PREFERENCE IS EXPRESSED GIVING BIDDERS AN OPPORTUNITY TO BID ON PIPE THAT WOULD RESULT IN THE LOWEST COST AND THE CONTRACTING AGENCY AN OPTION TO ACCEPT OR REJECT A BID. THE CONTRACTING AGENCY HAVING DETERMINED ITS BEST INTEREST WILL BE SERVED BY MAKING AN AWARD ON THE ITEMS BID UPON RATHER THAN THE ALTERNATE OMITTED. ALTHOUGH A BIDDER IS RESPONSIVE WHEN BIDDING ON AT LEAST ONE ALTERNATE WHERE NO PREFERENCE IS EXPRESSED. THERE IS THE RISK OF BEING NONRESPONSIVE SHOULD AN ALTERNATE NOT BID UPON BE SELECTED. THAT IS. THE WRITTEN WORDS WERE PATENTLY IN ERROR AND THE WRITTEN FIGURES CONSTITUTED THE BID INTENDED. THE WORKPAPERS ESTABLISHING THE FIGURES AND NOT THE WORDS WERE THE INTENDED BID PRICE.

B-158962, MAY 11, 1966, 45 COMP. GEN. 682

BIDS - EVALUATION - ALTERNATE BASES - FAILURE TO BID ON ALL BASES A BIDDER WHO FAILED TO BID ON ONE OF THREE ALTERNATES COVERING TYPES OF PIPE TO BE FURNISHED UNDER AN INVITATION FOR BRIDGE CONSTRUCTION, WHERE NO PREFERENCE IS EXPRESSED GIVING BIDDERS AN OPPORTUNITY TO BID ON PIPE THAT WOULD RESULT IN THE LOWEST COST AND THE CONTRACTING AGENCY AN OPTION TO ACCEPT OR REJECT A BID, HAS SUBMITTED A RESPONSIVE BID, THE CONTRACTING AGENCY HAVING DETERMINED ITS BEST INTEREST WILL BE SERVED BY MAKING AN AWARD ON THE ITEMS BID UPON RATHER THAN THE ALTERNATE OMITTED, ANY TYPE PIPE MEETING THE NEEDS OF THE AGENCY; HOWEVER, ALTHOUGH A BIDDER IS RESPONSIVE WHEN BIDDING ON AT LEAST ONE ALTERNATE WHERE NO PREFERENCE IS EXPRESSED, THERE IS THE RISK OF BEING NONRESPONSIVE SHOULD AN ALTERNATE NOT BID UPON BE SELECTED. BIDS - MISTAKES - CORRECTION - DISCREPANCY BETWEEN WORDS AND FIGURES THE DISCREPANCIES BETWEEN THE WRITTEN WORDS AND THE FIGURES INSERTED IN THE UNIT COLUMN IN TWO ALTERNATE BIDS ON PIPE TO BE FURNISHED UNDER AN INVITATION FOR BRIDGE CONSTRUCTION AND PROVIDING THAT "IN CASE OF VARIATION, THE PRICES WRITTEN IN WORDS SHALL GOVERN," WHERE THE WRITTEN FIGURES EXCEED BY 1,000 TIMES THE NORMAL COST REFLECTED IN OTHER BIDS RECEIVED AND PRIOR CONTRACTS, MAY BE VIEWED AS CLERICAL ERRORS AND NOT THE AMBIGUITIES CONTEMPLATED BY THE INVITATION, THE BID ITSELF ASCERTAINING THE INTENDED BID PRICES, THAT IS, THE WRITTEN WORDS WERE PATENTLY IN ERROR AND THE WRITTEN FIGURES CONSTITUTED THE BID INTENDED, A SITUATION CONTEMPLATED BY PARAGRAPH 2-406.2 OF THE ARMED SERVICES PROCUREMENT REGULATION AND SECTION 1-2.406-2 OF THE FEDERAL PROCUREMENT REGULATIONS, AND THE WORKPAPERS ESTABLISHING THE FIGURES AND NOT THE WORDS WERE THE INTENDED BID PRICE, THE BID IS RESPONSIVE AND MAY BE CONSIDERED IN MAKING AN AWARD.

TO FOX AND MCGREGOR, MAY 11, 1966:

BY TELEFAX DATED APRIL 15, 1966, AS SUPPLEMENTED BY YOUR LETTER OF APRIL 19, 1966, YOU PROTESTED, ON BEHALF OF ALLIED CONTRACTORS, INC., AGAINST THE ANTICIPATED AWARD OF A CONTRACT TO DRAW CONSTRUCTION CO. INC., UNDER GOVERNMENT OF THE DISTRICT OF COLUMBIA INVITATION FOR BIDS NO. C-66134-H, ISSUED ON MARCH 11, 1966, COVERING CERTAIN CONSTRUCTION WORK FOR THE 11TH STREET BRIDGE.

THE INVITATION REQUESTED BIDS ON THREE ALTERNATES (A, B AND C) COVERING PARTICULAR TYPES OF PIPES, AND IT IS REPORTED THAT THE DISTRICT EXPRESSED NO PREFERENCE AS TO ANY PARTICULAR TYPE OF PIPE, BUT INSTEAD INTENDED TO GIVE BIDDERS AN OPPORTUNITY TO BID UPON ANY TYPE OF PIPE WHICH WOULD RESULT IN THE LOWEST COST TO THE DISTRICT. THE INVITATION PROVIDED THAT BIDDERS MUST FILL IN THE SCHEDULE OF PRICES "FOR ALL ITEMS OF WORK.' THIS CONNECTION, WE ARE ADVISED THAT WHILE THE THREE ALTERNATES WERE LISTED AS SEPARATE ITEMS, THEY CONSTITUTED IN FACT ONE ITEM OF WORK SINCE ONLY ONE ALTERNATE WOULD BE AWARDED.

PAGE ONE OF THE SCHEDULE OF PRICES PROVIDED THAT:

ALL PRICES MUST BE WRITTEN IN WORDS AS WELL AS EXPRESSED IN FIGURES. CASE OF VARIATION, THE PRICES WRITTEN IN WORDS SHALL GOVERN.

FOUR BIDS WERE RECEIVED AND OPENED ON APRIL 7, 1966, AND IT APPEARED THAT DRAW SUBMITTED THE LOW TOTAL BID IN THE AMOUNT OF $485,290.95, INCLUDING ALTERNATE "B," AND $482,970.95, INCLUDING ALTERNATE "C.' IT DID NOT, HOWEVER, SUBMIT A BID ON ALTERNATE "A.' HOWEVER, WHEN THE UNIT PRICES BID BY DRAW WERE REVIEWED, IT WAS FOUND THAT UNDER ALTERNATE "B," COVERING 580 LINEAR FEET OF PRESTRESSED CONCRETE PIPE, THE AMOUNT OF $79,000 PIPE LINEAR FOOT WAS WRITTEN IN WORDS IN THE APPROPRIATE COLUMN, WHEREAS, THE FIGURE $79.00 WAS ENTERED IN THE UNIT PRICES COLUMN. THE EXTENSION OF ALTERNATE "B" IN FIGURES WAS ENTERED AS $45,820. ALSO, IN REVIEWING DRAW'S BID FOR ALTERNATE "C," COVERING 580 LINEAR FEET OF DUCTILE CAST IRON PIPE, IT WAS NOTED THAT DRAW ENTERED THE AMOUNT OF $75,000 IN WORDS IN THE APPROPRIATE COLUMN, WHEREAS, THE FIGURE $75.00 WAS ENTERED IN THE UNIT PRICES COLUMN. THE EXTENDED AMOUNT FOR THIS ALTERNATE WAS ENTERED AS $43,500 IN FIGURES.

IF THE SCHEDULE OF PRICES PROVISION, QUOTED ABOVE, IS APPLIED LITERALLY, THE COST OF PIPE UNDER ALTERNATE "B" WOULD BE $45,820,000, AND $43,500,000 UNDER ALTERNATE "C," OR ABOUT 1,000 TIMES THE NORMAL COST OF PIPE AS REFLECTED IN THE OTHER BIDS RECEIVED AND IN PRIOR CONTRACTS. WE HAVE BEEN ADVISED THAT DRAW WAS APPRISED OF THESE DISCREPANCIES AND CONFIRMED THAT ITS INTENDED BID PRICES FOR ALTERNATES "B" AND "C" WERE $79 AND $75, RESPECTIVELY, PER LINEAR FOOT. THAT THESE WERE DRAW'S INTENDED PRICES IS REASONABLY ESTABLISHED BY ITS WORKPAPERS ON THE JOB ADVERTISED.

YOU CONTEND THAT THE FAILURE OF DRAW TO BID ON ALTERNATE "A" RENDERED ITS BID NONRESPONSIVE AND THAT DRAW'S BID MUST BE EVALUATED ON THE SOLE BASIS OF THE PRICES QUOTED FOR ALTERNATES "B" AND ,C" AS WRITTEN IN WORDS. THESE BASES YOU ARGUE THAT AWARD MUST BE MADE TO ALLIED AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION.

WITH REFERENCE TO DRAW'S FAILURE TO BID ON ALTERNATE "A," WE NOTE THAT SPECIAL PROVISION 3 OF THE INVITATION PROVIDED THAT EACH BIDDER SHALL SUBMIT BIDS ON ALL ITEMS IN THE SCHEDULE, AND THAT FAILURE TO SO BID WILL GIVE THE DISTRICT THE OPTION TO REJECT THE BID. WE HAVE HELD THAT A FAILURE TO BID ON AN ALTERNATE, EVEN THOUGH REQUIRED UNDER THE CLEAR MEANING OF THE INVITATION, DOES NOT RENDER A BID NONRESPONSIVE WITH RESPECT TO ITEMS ACTUALLY BID UPON WHEN, AS HERE, IT IS ADMINISTRATIVELY DETERMINED THAT THE DISTRICT'S BEST INTERESTS WILL BE SERVED BY MAKING AN AWARD ON THE ITEMS BID UPON RATHER THAN THE ALTERNATE OMITTED. B-147038 DATED SEPTEMBER 7, 1961; B-149610 DATED DECEMBER 11, 1962. WE HAVE CONSIDERED THE OFFICE DECISIONS CITED BY YOU IN SUPPORT OF YOUR POSITION (39 COMP. GEN. 595; 40 ID. 132, AND OTHERS). THESE DECISIONS ARE DISTINGUISHABLE SINCE THEY INVOLVED FAILURES TO SUBMIT INFORMATION, ETC., ESSENTIAL TO A PROPER EVALUATION, THAT IS, WHERE THE FAILURES WERE OF SUBSTANCE AND NOT OF FORM. IT IS INTERESTING TO NOTE THAT IN 39 COMP. GEN. 595, 597, WE STATED THAT "AN AUTOMATIC REJECTION OF A BID BECAUSE OF A FAILURE TO CONFORM TO A PURELY TECHNICAL OR OVER-LITERAL READING OF THE STATED REQUIREMENTS MAY BE AS ARBITRARY AS A WAIVER OF NONRESPONSIVENESS TO A MATERIAL AND SUBSTANTIAL REQUIREMENT.' WE FEEL THAT SINCE ANY TYPE OF PIPE WILL MEET THE DISTRICT'S NEEDS AND SINCE IT HAS NOT INDICATED ANY PREFERENCE AS TO A PARTICULAR TYPE, A BIDDER WOULD BE RESPONSIVE TO THOSE REQUIREMENTS IF HE BID ON AT LEAST ONE ALTERNATE. IN SUCH A CASE, HOWEVER, THE BIDDER WOULD RUN THE RISK THAT SHOULD THE DISTRICT ELECT TO ACCEPT AN ALTERNATE NOT BID UPON HIS BID WOULD THEN BE NONRESPONSIVE. SEE B-136578 DATED SEPTEMBER 17, 1958.

TURNING NOW TO THE DISCREPANCY BETWEEN THE WRITTEN WORDS AND FIGURES IN DRAW'S BID ON ALTERNATES "B" AND "C," IT IS EVIDENT THAT AN OVER-LITERAL READING OF THE INVITATION LANGUAGE WOULD REQUIRE THAT ONLY THE BID FIGURES IN WRITING BE CONSIDERED. IT WOULD BE PATENTLY ABSURD AND INCONSISTENT WITH THE BID ITSELF TO VIEW THE MATTER AS IN THE NATURE OF A BID AMBIGUITY. WE BELIEVE THAT THE INVITATION PROVISION QUOTED ABOVE HAS REFERENCE TO AMBIGUITIES IN BIDS AND PROVIDES A MEANS WHEREBY THEY MAY BE RESOLVED. BUT WE DO NOT BELIEVE THAT THE PROVISION SHOULD BE CONSTRUED SO AS TO PRECLUDE THE CORRECTION OF APPARENT CLERICAL ERRORS. IT IS NOT NECESSARY TO GO BEYOND THE BID ITSELF TO ASCERTAIN THE INTENDED BID OF DRAW; THAT IS, THE WRITTEN WORDS WERE PATENTLY IN ERROR AND THE WRITTEN FIGURES CONSTITUTED THE BID INTENDED. THIS IS PROCUREMENT REGULATION AND SECTION 1-2.406-2 OF THE FEDERAL PROCUREMENT REGULATION AND SECTION 1 2.406-2 OF THE FEDERAL PROCUREMENT REGULATIONS, WHEREIN CORRECTION OF CLERICAL MISTAKES APPARENT ON THE FACT OF A BID IS AUTHORIZED UPON VERIFICATION BY THE BIDDER OF THE BID ACTUALLY INTENDED. HERE, THE WORKPAPERS SUBMITTED BY DRAW IN VERIFICATION OF ITS INTENDED BID PRICES ESTABLISH THAT ITS PER LINEAR FOOT BID WAS AS STATED IN FIGURES AND NOT IN WORDS. TO HOLD OTHERWISE WOULD BE GROSSLY ARBITRARY AND WHOLLY INCONSISTENT WITH THE BID ITSELF.

ACCORDINGLY, THE PROTEST IS DENIED. APPROPRIATE ADVICE IS BEING GIVEN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, TO CONSIDER THE BID OF DRAW CONSTRUCTION CO. INC., IN MAKING AN AWARD UNDER THE INVITATION.