B-161351, JUL. 31, 1967

B-161351, JUL. 31, 1967

BIDS - MISTAKES - CORRECTION DECISION TO SECOND LOW BIDDER, JAMES R. DUNLOP, INC., WHO PROTESTS AWARD TO LOW BIDDER, INDUSTRIAL PHOTOGRAPHY AND COOPER-TRENT, INC., BY ARMY BECAUSE ONE ITEM WAS ELIMINATED FROM PROCUREMENT AND THE LOW BIDDER WAS ALLOWED TO PUT IN A PRICE THAT HAD BEEN OMITTED. AN ITEM WHICH TWO OF SIX RESPONSIVE BIDDERS MISINTERPRETED MAY BE REGARDED AS AMBIGUOUS AND, THERFORE, ELIMINATION OF SUCH ITEM WAS PROPER. FURTHER, THE LOW BIDDER WHO AT BID OPENING ADVISED THAT IT HAD INADVERTENTLY OMITTED A PRICE ON ONE OF THE SUBITEMS AND WHO PRODUCED WORKSHEETS IDSCLOSING THE INTENDED BID PRICES MAY HAVE THE OMISSION CORRECTED PURSUANT TO ASPR 2-406.3 SINCE INTENDED BID PRICES FOR THE SUBITEM (?80 AND ?70 TOTALLING $70) ARE TRIVIAL IN RELATION TO THE LOW BID OF $132,120.45 AND INSIGNIFICANT IN RELATION TO $16,048.05, DIFFERENCE BETWEEN ITS BID AND THAT OF THE NEXT LOW BID OF THE PROTESTANT.

TO JAMES R. DUNLOP, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER AND TELEGRAM OF MAY 19, 1967, AND ENCLOSURES, PROTESTING ANY AWARD TO INDUSTRIAL PHOTOGRAPHY AND COOPER- TRENT, INC., UNDER ARMY INVITATION FOR BIDS NO. DAAK02-67-B 1511.

THE INVITATION WAS ISSUED FEBRUARY 1, 1967, FOR A REQUIREMENTS-TYPE CONTRACT FOR THE FURNISHING OF THREE LOTS OF PHOTOGRAPHIC SERVICES AND ILLUSTRATIVE ART. HOWEVER, SINCE LOT NO. 1 IS THE ONLY LOT GERMANE TO YOUR PROTEST, WE WILL CONFINE OUR DISCUSSION TO THIS LOT.

LOT NO. 1 REQUESTED BIDS ON 21 ITEMS OF PHOTOGRAPHIC SERVICES AND PROCESSING OF STILL FILM. THE LOW BID FOR THIS LOT WAS SUBMITTED BY INDUSTRIAL PHOTOGRAPHY IN THE AMOUNT OF $132,120.45. THE SECOND LOW BID WAS SUBMITTED BY YOUR FIRM IN THE AMOUNT OF $148,168.50. YOU CONTEND, FIRST, THAT NO AWARD SHOULD BE MADE FOR SUBITEM 16D OF LOT NO. 1 WHICH YOU BELIEVE SHOULD BE ELIMINATED FROM CONSIDERATION FOR AWARD. SECOND, YOU CONTEND THAT THE OTHERWISE LOW BIDDER, INDUSTRIAL PHOTOGRAPHY, WAS IMPROPERLY PERMITTED TO CORRECT ITS BID BY SUPPLYING A PRICE FOR SUBITEM 8E OF LOT NO. 1 WHICH HAD BEEN OMITTED.

ITEM 16D REQUESTED BIDS ON COLOR TRANSPARENCIES "4X5" AS FOLLOWS:

"COLOR TRANSPARENCIES, FROM NEGATIVES, TRANSPARENCIES OR ORIGINAL ART.' FOLLOWING THIS DESCRIPTION, 12 DIFFERENT SIZES OF COLOR TRANSPARENCIES WERE LISTED AS TO WHICH PRICES WERE REQUESTED. UPON EVALUATION OF BIDS, THE PROCUREMENT ACTIVITY DETERMINED THAT TWO OF THE SIX RESPONSIVE BIDDERS MISINTERPRETED THE GOVERNMENT'S REQUIREMENTS. THESE BIDDERS INTERPRETED THE REQUIREMENT TO BE FOR COLOR TRANSPARENCIES "4X5" FROM GOVERNMENT- FURNISHED NEGATIVES OF THE SPECIFIED LARGER SIZES. THE ACTIVITY DETERMINED THAT THIS INTERPRETATION WAS PLAUSIBLE AND REASONABLE ON THE BASIS OF THE INVITATION DESCRIPTION OF THE SUBITEM. HENCE, ITEM 16D HAS BEEN ELIMINATED FROM THE PROCUREMENT BECAUSE OF THE AMBIGUITY AND INADEQUACY OF ITS DESCRIPTIVE LANGUAGE. COMPARE 40 COMP. GEN. 55.

WITH RESPECT TO YOUR SECOND POINT OF PROTEST, IT IS REPORTED THAT UPON THE OPENING OF THE BID OF INDUSTRIAL PHOTOGRAPHY, IT WAS NOTICED THAT IT HAD FAILED TO BID ANY PRICES FOR SUBITEM 8E, DEVELOPING BLACK AND WHITE FILMS, UFD OR EQUIVALENT,"4X5" FILM PACK. AT THIS TIME, THE BIDDER CLAIMED A MISTAKE IN BID AND REQUESTED PERMISSION TO CORRECT ITS BID. THIS REQUEST WAS NOT GRANTED. SUBSEQUENTLY, INDUSTRIAL PHOTOGRAPHY WHICH IS THE LOW BIDDER ON LOT NO. 1, CORRECTED OR UNCORRECTED, MADE FORMAL APPLICATION UNDER MISTAKE-IN-BID PROCEDURES PRESCRIBED BY ASPR 2-406.3, TO CORRECT ITS BID BY INSERTING AMOUNTS OF ?80 AND ?70 FOR SUBITEM 8E. THE LOW BIDDER ASSERTS IT MADE "AN OBVIOUS CLERICAL OMISSION" IN NOT INSERTING THESE COMPUTED AMOUNTS IN THE SPACE PROVIDED FOR SUBITEM 8E. THE CONTRACTING OFFICER STATES THAT AT THE TIME OF BID OPENING, INDUSTRIAL PHOTOGRAPHY ALLEGED IT HAD MADE AN ERROR IN OMITTING ITS BID PRICE ON 8E AND SHOWED THE OPENING OFFICER ITS WORKSHEETS WHICH DISCLOSED ITS INTENDED BID PRICES FOR SUBITEM 8E. IT IS THE POSITION OF THE PROCUREMENT OFFICE THAT THE INFORMATION FURNISHED BY INDUSTRIAL PHOTOGRAPHY, AS SUBSTANTIATED BY THE CONTRACTING OFFICER, CONSTITUTES CLEAR AND CONVINCING EVIDENCE OF AN ERROR IN BID AND THE INTENDED BID PRICE AND, THEREFORE, UNDER CRITERIA SET FORTH IN ASPR 2-406.3 CORRECTION WILL BE PERMITTED.

AMENDMENT NO. 2 TO THE INVITATION, DATED MARCH 2, 1967, REQUIRED THAT "PRICES SHALL BE QUOTED AS -UNIT PRICES' FOR QUANTITIES FALLING WITHIN EACH QUANTITY GROUPING WITH NO ALLOWANCE FOR -SET-UP- OR -START UP- EXPENSE. THE TOTAL COST FOR EACH ITEM ORDERED AND ACCEPTED SHALL BE DERIVED BY MULTIPLYING THE QUANTITY BY THE -UNIT PRICE- APPLICABLE TO THAT. * * * "

PARAGRAPH H-5 OF THE EVALUATION AND AWARD PROVISIONS OF THE INVITATION, PROVIDES THAT "MULTIPLE AWARDS" WILL BE MADE IF IN THE BEST INTEREST OF THE GOVERNMENT AND WILL BE SUBJECT TO PARAGRAPH H-6. THE LATTER PARAGRAPH PROVIDES THAT, IN ADDITION TO OTHER FACTORS, BIDS WILL BE EVALUATED ON THE BASIS OF ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MORE THAN ONE AWARD (MULTIPLE AWARDS) AND PROVIDES FURTHER THAT INDIVIDUAL AWARDS WILL BE FOR THE ITEMS AND COMBINATION OF ITEMS WHICH RESULT IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT, AND THAT LOTS NOS. 1, 2 AND 3 MAY BE CONSIDERED AS INDIVIDUAL ITEMS. IT IS FURTHER PROVIDED THAT INDIVIDUAL AWARDS MAY BE MADE FOR THOSE ITEMS.

IN THOSE INSTANCES WHERE THE INVITATION EXPRESSLY PROVIDES THAT NO BID WILL BE CONSIDERED FOR ONLY PART OF THE ITEMS COVERED BY THE INVITATION, FAILURE TO COMPLY THEREWITH WILL RENDER A BID NONRESPONSIVE. B-155429, NOVEMBER 23, 1964; B-146329, AUGUST 28, 1961; B-141395, DECEMBER 15, 1959. HOWEVER, SINCE NO SUCH MANDATORY PROVISION IS INVOLVED HERE, THE RULE IN THOSE CITED DECISIONS IS NOT FOR APPLICATION.

IN 41 COMP. GEN. 721, WE HAD OCCASION TO CONSIDER A SITUATION WHERE A LOW BIDDER FAILED TO QUOTE A PRICE ON ONE OF THE ITEMS REQUESTED IN THE INVITATION. THE PROTESTING CONCERN THERE ARGUED THAT THE LOW BID SHOULD NOT HAVE BEEN ACCEPTED SINCE THE BID DID NOT CONFORM TO THE INVITATION AND THAT AWARD MADE THEREUNDER WAS CONTRARY TO THE PROCUREMENT STATUTE. REBUTTAL, WE POINTED OUT THAT THE BASIC REASON UNDERLYING THE STATUTORY REQUIREMENT THAT A BID, TO BE ELIGIBLE FOR AWARD, MUST BE IN CONFORMITY WITH THE INVITATION IS TO INSURE THAT ALL BIDDERS WILL HAVE THE OPPORTUNITY OF COMPETING ON AN EQUAL BASIS AND TO HAVE THEIR BIDS EVALUATED ON THE SAME BASIS. EQUALITY OF TREATMENT ONLY REQUIRES THAT NO BIDDER BY HIS ACTION GAIN AN ADVANTAGE FOR HIMSELF OR PREJUDICE THE POSITION OF OTHERS. IF THERE BE NO GAIN OR PREJUDICE, OTHER BIDDERS GENERALLY HAVE NO JUST CAUSE FOR COMPLAINT.

IN THE PRESENT CASE, THE LOW BID OF INDUSTRIAL PHOTOGRAPHY IS $16,048.05 LESS THAN YOUR BID ON LOT NO. 1. WE ARE ADVISED THAT INDUSTRIAL PHOTOGRAPHY'S BID WOULD BE INCREASED BY $70 IF IT IS PERMITTED TO SUPPLY ITS INTENDED PRICES FOR SUBITEM 8E. A REVIEW OF THE FILE BEFORE US CONVINCINGLY ESTABLISHES THAT THE LOW BIDDER OMITTED ITS PRICES FOR SUBITEM 8E THROUGH INADVERTENCE AND THAT ITS INTENDED PRICES FOR THE SUBITEM WERE IN THE AMOUNTS OF ?80 AND ?70. ITS WORKSHEETS WHICH WERE PRESENTED CONTEMPORANEOUSLY WITH ITS PROMPT ALLEGATION OF ERROR CLEARLY DEMONSTRATE THE EXISTENCE OF THE ERROR, HOW IT OCCURRED AND THE AMOUNTS OF ITS INTENDED BID. CONSIDERING THAT THE INTENDED BID PRICES FOR SUBITEM 8E ARE TRIVIAL IN RELATION TO INDUSTRIAL PHOTOGRAPHY'S LOW BID OF $132,120.45 AND INSIGNIFICANT IN RELATION TO THE $16,048.05 DIFFERENCE BETWEEN ITS BID AND THAT OF YOUR FIRM, WE CONCLUDE THAT THE OMISSION MAY PROPERLY BE CORRECTED UNDER THE ESTABLISHED PROCEDURES. THIS, IN EFFECT, WOULD ALLOW CORRECTION OF THE OMISSION ON THE SAME BASIS THAT AN UNINTENDED PRICE COULD HAVE BEEN CORRECTED UNDER PROPER CIRCUMSTANCES. SEE B-126463, JANUARY 16, 1956, WHERE WE HELD:

"ONE OF THE PURPOSES OF THE STATUTORY REQUIREMENT OF ADVERTISING FOR BIDS IN MATTERS OF THIS TYPE IS TO SECURE TO ALL QUALIFIED BUSINESS CONCERNS AN EQUAL OPPORTUNITY FOR OBTAINING CONTRACTS WITH THE GOVERNMENT, THEREBY ELIMINATING ANY POSSIBILITY OF CHARGES OF FAVORITISM AND COLLUSION IN THE AWARD OF GOVERNMENT CONTRACTS. IN VIEW THEREOF, IT HAS CONSISTENTLY BEEN HELD BY OUR OFFICE AND THE COURTS THAT BIDDERS SHOULD NOT BE PERMITTED TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, IT BEING CONSIDERED THAT THE STRICT MAINTENANCE OF SUCH RULE IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE.

"HOWEVER, THE FOREGOING RULE WAS NOT INTENDED TO PROHIBIT THE CORRECTION OF BIDS IN PROPER CASES WHERE IT IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT A MISTAKE HAS BEEN MADE IN THE BID. IN THE PRESENT CASE THE BIDDER DOES NOT SEEK TO RECALCULATE AND CHANGE ITS BID TO INCLUDE FACTORS WHICH IT DID NOT HAVE IN MIND WHEN ITS BID WAS SUBMITTED, OR AS TO WHICH IT HAS SINCE CHANGED ITS MIND. RATHER IT PROPOSES TO CORRECT ITS BID TO INCLUDE THEREIN A PREVIOUSLY CALCULATED ITEM WHICH IT ACTUALLY INTENDED TO INCLUDE, BUT WHICH WAS INADVERTENTLY OMITTED FROM ITS ORIGINAL BID. CONSIDERING ALL THE CIRCUMSTANCES, IT IS REASONABLE TO CONCLUDE THAT THE RECORD CONTAINS CONVINCING EVIDENCE THAT A MISTAKE WAS MADE AND WHAT THE BID PRICE WOULD HAVE BEEN EXCEPT FOR THE MISTAKE.

"SINCE THERE CAN BE NO DOUBT THAT THE BIDDER INTENDED TO BID ON THE ITEM AND, UNDER THE CIRCUMSTANCES, THE AMOUNT THEREOF IS NEITHER SUBJECT TO THE DISCRETION OF THE BIDDER NOR OPEN TO CONJECTURE, WE THINK IT FAIRLY CAN BE STATED THAT TO PERMIT CORRECTION OF THE OMISSION WOULD NOT BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS.'

ALSO, COMPARE 40 COMP. GEN. 132, 134; 44 ID. 753.

UNDER THE CIRCUMSTANCES OF THIS CASE, IT IS OUR OPINION THAT THE LOW BID OF INDUSTRIAL PHOTOGRAPHY UNDER LOT NO. 1 OF THE INVITATION MAY BE CONSIDERED FOR AWARD AND ITS PRICE OMISSION RESPECTING SUBITEM 8E MAY BE CORRECTED PURSUANT TO THE ADMINISTRATIVE PROCEDURES OF ASPR 2-406.3.