B-159114, MAY 16, 1966

B-159114, MAY 16, 1966

TO CONTRACTING OFFICER, ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, DEPARTMENT OF COMMERCE:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1966, WITH ENCLOSURES, FILE AD111, REQUESTING OUR DECISION AS TO THE ACTION THAT SHOULD BE TAKEN WITH RESPECT TO AN ERROR ALLEGED TO HAVE BEEN MADE BY R. F. CRESON AND CO. IN ITS BID UNDER INVITATION NO. 5-WB-2-66, ISSUED JANUARY 21, 1966.

ON MARCH 15, 1966, CRESON RESPONDED TO THE SUBJECT INVITATION ISSUED BY THE WEATHER BUREAU REGIONAL HEADQUARTERS, FORT WORTH, TEXAS, WHICH CALLED FOR CONSTRUCTION OF AN ATMOSPHERIC PROBING FACILITY AT BOOTHVILLE, LOUISIANA. IT IS STATED THAT THE BIDS WERE PUBLICLY OPENED AT 10 A.M. ON MARCH 16, 1966. JUST BEFORE BID OPENING TIME THE BID OF CRESON WAS MODIFIED BY TELEGRAM TO BRING ITS BID PRICE DOWN TO $129,635, AND THIS FIGURE WAS RECORDED AS THE BID PRICE. BECAUSE THE BID PRICE WAS APPROXIMATELY $30,000 LOWER THAN THE OTHER TWO BIDS ($160,058 AND $159,000) AND WAS $60,000 BELOW THE WEATHER BUREAU ESTIMATE OF COST, CRESON WAS ASKED TO VERIFY ITS PRICE. IN RESPONSE TO THIS REQUEST CRESON NOTIFIED THE FORTH WORTH REGIONAL OFFICE THAT A MISTAKE OF $20,000 HAD OCCURRED IN ITS BID, AND IN RESPONSE TO A SECOND LETTER ASKING FOR WORKING PAPERS AND OTHER DOCUMENTATION IN SUPPORT OF ITS CLAIM, CRESON SUBMITTED ITS WORKSHEETS. IT CAN BE SEEN THAT IN LINES ONE AND SEVEN OF THE SHEET ENTITLED "SUBCONTRACTORS" THAT POSSIBLY THE MISTAKE HAD BEEN MADE IN THESE LINES. ON LINE ONE THERE APPEAR TWO SETS OF NUMBERS ONE WRITTEN OVER THE OTHER, WITH 15,250 AND 35,250 BOTH VISIBLE. ALSO, ON LINE SEVEN A PENCILED FIGURE OF $20,000 HAS BEEN CROSSED OUT IN INK.

IT IS ADMINISTRATIVELY REPORTED THAT THE PROCURING OFFICE CANNOT TELL WHEN OR HOW THESE CHANGES WERE MADE. CRESON ASKED PERMISSION TO WITHDRAW ITS BID OR, AS AN ALTERNATIVE, TO AMEND ITS BID BY A $20,000 INCREASE.

YOU EXPRESS THE VIEW THAT THE DOCUMENTATION FURNISHED BY THE BIDDER APPEARS TO SUBSTANTIATE THAT AN ERROR WAS MADE; HOWEVER, THE INFORMATION AS TO WHAT THE CORRECTED BID SHOULD BE--- IN ORDER TO ALLOW CORRECTION--- IS CONSIDERED DEFICIENT.

WHILE IT IS THE GENERAL RULE THAT A BIDDER UNDER AN ADVERTISED INVITATION FOR BIDS MAY NOT MODIFY OR WITHDRAW ITS BID AFTER BIDS HAVE BEEN OPENED, IT IS ALSO WELL ESTABLISHED THAT ACCEPTANCE OF A BID WITH KNOWLEDGE OF ERROR THEREIN DOES NOT CONSUMMATE A BINDING CONTRACT. FOR THIS REASON WITHDRAWAL OF A BID IS PERMITTED UPON CONVINCING PROOF OF ERROR THEREIN. 42 COMP. GEN. 723. HOWEVER, CORRECTION OF AN ERRONEOUS BID IS PERMITTED AFTER OPENING AND BEFORE AWARD IN CASES WHERE THE CORRECTED BID WOULD STILL BE LOW ONLY IF THE BIDDER IS ABLE TO SHOW BY CLEAR AND CONVINCING EVIDENCE, IN ADDITION TO THE EXISTENCE OF THE MISTAKE, WHAT ITS BID PRICE WOULD HAVE BEEN ABSENT THE MISTAKE. THE DEGREE OF PROOF REQUIRED TO JUSTIFY CORRECTION, HOWEVER, IS MUCH HIGHER THAN THE DEGREE OF PROOF REQUIRED TO JUSTIFY WITHDRAWAL. 36 COMP. GEN. 441.

APPLYING THE FOREGOING TO THE PRESENT RECORD, WE AGREE WITH THE VIEW THAT ERRORS DID OCCUR IN CRESON'S BID, AND SUCH VIEW IS SUPPORTED BY THE FACT THAT CRESON'S BID IS SUBSTANTIALLY LOWER THAN THE PRICE RANGE OF THE OTHER BIDS AND THE GOVERNMENT'S ESTIMATE FOR THE PROJECT. HOWEVER, AS YOU SUGGEST, THE EVIDENCE DOES NOT ESTABLISH THE INTENDED BID PRICES, AND THE MISTAKES, THEREFORE, DO NOT FALL WITHIN THE CATEGORY OF MISTAKES WHICH MAY BE CORRECTED. IN VIEW THEREOF, IT IS OUR ..END :