B-162207, NOV. 2, 1967

B-162207: Nov 2, 1967

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A BIDDER WHO CLAIMS HE WOULD HAVE BEEN LOW ON THE BASIS THAT THE BID PRICE FOR ITEM 1 INCLUDED ITEM 2 BUT IT IS IMPOSSIBLE TO ASCERTAIN FROM THE FACE OF THE BID WHETHER THIS ALLEGATION IS CORRECT MUST BE REGARDED AS HAVING MISINTERPRETED THE INVITATION WHICH PROVIDED THAT THE BID PRICE FOR ITEM 1 IS "EXCLUSIVE OF ITEM 2.'. SINCE THE ERROR IS NOT OBVIOUS ON THE FACE OF THE BID AND SINCE CORRECTION WOULD DISPLACE ONE OR MORE BIDS. THE PROCURING AGENCY ACKNOWLEDGES THAT THE BID SCHEDULE WAS STRUCTURALLY WEAK AND COULD HAVE BEEN WORDED MORE CLEARLY. TO VIRGINIA ROOFING CORPORATION: REFERENCE IS MADE TO A LETTER DATED AUGUST 1. BIDDERS WERE TO INSERT A TOTAL AMOUNT BID FOR SCHEDULE I ONLY. BIDS WILL BE EVALUATED ON THE BASIS OF SCHEDULES I THROUGH V.

B-162207, NOV. 2, 1967

BIDS - MISTAKES - CORRECTION DECISION TO VIRGINIA ROOFING CO. CONCERNING PROTEST AGAINST AWARD OF CONTRACT TO L.F. STILL AND CO. FOR ROOF REPLACEMENTS AT FORT BELVOIR BY DIRECTORATE OF PROCUREMENT, DEPARTMENT OF THE ARMY. A BIDDER WHO CLAIMS HE WOULD HAVE BEEN LOW ON THE BASIS THAT THE BID PRICE FOR ITEM 1 INCLUDED ITEM 2 BUT IT IS IMPOSSIBLE TO ASCERTAIN FROM THE FACE OF THE BID WHETHER THIS ALLEGATION IS CORRECT MUST BE REGARDED AS HAVING MISINTERPRETED THE INVITATION WHICH PROVIDED THAT THE BID PRICE FOR ITEM 1 IS "EXCLUSIVE OF ITEM 2.' THEREFORE, SINCE THE ERROR IS NOT OBVIOUS ON THE FACE OF THE BID AND SINCE CORRECTION WOULD DISPLACE ONE OR MORE BIDS, CORRECTION MAY NOT BE AUTHORIZED. THE PROCURING AGENCY ACKNOWLEDGES THAT THE BID SCHEDULE WAS STRUCTURALLY WEAK AND COULD HAVE BEEN WORDED MORE CLEARLY.

TO VIRGINIA ROOFING CORPORATION:

REFERENCE IS MADE TO A LETTER DATED AUGUST 1, 1967, FROM THE HONORABLE JOEL T. BROYHILL, MEMBER OF CONGRESS, REGARDING THE PROTEST OF YOUR COMPANY AGAINST THE AWARD OF CONTRACT NO. DABB19-67-C-0371 DATED JUNE 28, 1967, TO THE L.F. STILL AND COMPANY, ATLANTA, GEORGIA.

ON JUNE 8, 1967, THE DIRECTORATE OF PROCUREMENT, FORT BELVOIR, VIRGINIA, ISSUED INVITATION FOR BIDS NO. DABB19-67-B-0097, COVERING CERTAIN ROOF REPLACEMENTS AT FORT BELVOIR. THE BASE BID SCHEDULE I REQUESTED UNDER ITEM 1 A LUMP-SUM BID TO REMOVE AND REPLACE EXISTING ROOFING AND FLASHING, EXCLUSIVE OF ITEM 2 WORK. ITEM 2 REQUESTED A UNIT PRICE BID FOR REMOVING AND REPLACING AN ESTIMATED 2,000 SQUARE FEET OF SHEATHING ON BUILDINGS LISTED IN ITEM 1. BIDDERS WERE TO INSERT A TOTAL AMOUNT BID FOR SCHEDULE I ONLY. ADDITIVE ITEMS 3, 5, 7, AND 9 (SCHEDULES II THROUGH V--- ALSO DENOMINATED AS PRIORITIES 1 THROUGH 4) REQUESTED SIMILAR LUMP-SUM BIDS TO REMOVE AND REPLACE EXISTING ROOFING ON OTHER BUILDINGS, EXCLUSIVE OF SQUARE-FEET UNIT PRICES FOR REMOVING AND REPLACING ESTIMATED QUANTITIES OF SHEATHING CALLED FOR BY ITEMS 4, 6, 8, AND 10 OF THOSE SCHEDULES. HOWEVER, THESE SCHEDULES, UNLIKE SCHEDULE I, DID NOT PROVIDE FOR TOTAL BIDS FOR THE SCHEDULES.

NOTE 3 OF THE INVITATION ENTITLED "BASIS OF EVALUATION" PROVIDED: "A. BIDS WILL BE EVALUATED ON THE BASIS OF SCHEDULES I THROUGH V. AWARD WILL BE MADE TO THE LOWEST RESPONSIVE RESPONSIBLE BIDDER ON LOW AGGREGATE TOTAL OF SCHEDULES I THROUGH V IN THE ORDER OF STATED PRIORITY. "B. UNIT PRICES OF ITEM NRS. 2, 4, 6, 8, AND 10 WILL BE USED FOR A BASIS OF PAYMENT TO THE CONTRACTOR FOR WORK ACTUALLY PERFORMED UNDER ITEM NRS. 2, 4, 6, 8, AND 10.'

THREE BIDS WERE RECEIVED AND OPENED ON JUNE 26, 1967, AND THE TWO LOWEST BIDS WERE ABSTRACTED AS FOLLOWS:

L.F. STILL AND COMPANY VIRGINIA ROOFING CORPORATION

SCHEDULE I ITEM 1 $20,269 $20,637.00

ITEM 2 800 .50

------- ---------- TOTAL AMOUNT BID SCHEDULE I $21,069 $20,637.00

SCHEDULE II ITEM 3 $15,557 $15,277.00

ITEM 4 1,000 .50

SCHEDULE III ITEM 5 $15,043 $16,013.00

ITEM 6 920 .50

SCHEDULE IV ITEM 7 $17,167 $17,512.00

ITEM 8 1,080 .50

SCHEDULE V ITEM 9 $15,491 $12,893.00

ITEM 10 1,040 .50

AN EXAMINATION OF THE STILL BID INDICATED THAT IT HAD SUBMITTED EXTENDED TOTALS INSTEAD OF SQUARE-FEET UNIT PRICES ON ITEMS 2, 4, 6, 8 AND 10. SINCE THE OTHER TWO BIDDERS OFFERED UNIT PRICES OF $0.27 AND $0.50 FOR THESE ITEMS, IT WAS APPARENT THAT STILL HAD MADE AN ERROR. PURSUANT TO PARAGRAPH 2-406.1 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), STILL WAS REQUESTED TO VERIFY ITS BID. BY LETTER DATED JUNE 26, 1967, STILL ADVISED THAT IT HAD SUBMITTED EXTENDED TOTALS INSTEAD OF SQUARE-FEET UNIT PRICES ON ITEMS 2, 4, 6, 8 AND 10BASED ON $0.40 PER SQUARE FOOT. THE CONTRACTING OFFICER DETERMINED UNDER ASPR 2-406.2 THAT THE ERROR SHOULD BE CORRECTED BY CONSIDERING THE UNIT PRICE BID FOR THE EVEN NUMBERED ITEMS AS $0.40 PER SQUARE FOOT. IT WAS NOT NECESSARY TO GO BEYOND THE BID ITSELF TO ASCERTAIN THE INTENDED BID OF STILL. IT WAS APPARENT FROM THE FACE OF STILL'S BID THAT THE UNIT PRICE PER SQUARE FOOT OF SHEATHING WAS $0.40. THIS IS A SITUATION CONTEMPLATED BY PARAGRAPH 2-406.2 OF ASPR WHEREIN CORRECTION OF MISTAKES APPARENT ON THE FACE OF THE BID IS AUTHORIZED UPON VERIFICATION BY THE BIDDER OF THE BID ACTUALLY INTENDED. IF THE UNIT PRICE OF $800 IN ITEM 2, SCHEDULE I, WERE NOT ERRONEOUS, THE TOTAL BID FOR SCHEDULE I WOULD BE HIGHER BY $1,599,200 (1,999 SQUARE FEET X $800). HOWEVER, THE TOTAL FOR SCHEDULE I WAS ENTERED BY STILL AS $21,069 ($20,269 FOR ROOFING PLUS $800 FOR 2,000 SQUARE FEET OF SHEATHING). THUS IT WAS APPARENT THAT THE FIGURES LISTED IN STILL'S BID AS UNIT PRICES FOR THE EVEN-NUMBERED ITEMS REPRESENT THE UNIT PRICES ($0.40) EXTENDED BY THE ESTIMATED QUANTITIES.

IT IS REPORTED THAT ON THE BID OPENING DATE JUNE 26, 1967, YOUR MR. ALLEN L. PARSONS CONTACTED THE CONTRACTING OFFICER TO REQUEST INFORMATION AS TO THE INTERPRETATION OF THE EVALUATION CLAUSE. HE WAS ADVISED THAT EVALUATION WOULD BE PERFORMED IN ACCORDANCE WITH THE METHOD SET FORTH IN THE SCHEDULE, I.E., THAT EACH SCHEDULE CONTAINED TWO ITEMS AND THAT THE TOTAL OF ALL SCHEDULES WOULD BE AGGREGATED TO ARRIVE AT AN AGGREGATE TOTAL. MR. PARSONS WAS INFORMED THAT IF HE SHOULD DECIDE TO PROTEST, HE SHOULD SUBMIT SUCH PROTEST TO THE CONTRACTING OFFICER IN WRITING.

EVALUATION OF BIDS WAS MADE ON THE BASIS OF SCHEDULES I THROUGH V BY ADDING THE TOTAL AMOUNTS OF ITEMS 1, 3, 5, 7 AND 9, AND THE EXTENDED TOTALS ON ESTIMATED REQUIREMENTS OF ITEMS 2, 4, 6, 8 AND 10, TO ARRIVE AT THE LOW OVERALL AGGREGATE TOTAL. UNDER THIS EVALUATION, THE THREE BIDS RECEIVED WERE AS FOLLOWS: DEE CEE ROOFING CO., INC., $109,800; VIRGINIA ROOFING CORPORATION $88,382; L.F. STILL AND COMPANY $88,367. THEREFORE, AWARD WAS MADE TO L.F. STILL AND COMPANY ON JUNE 28, 1967, UNDER WHICH THE WORK IS TO BE COMPLETED WITHIN 90 CALENDAR DAYS AFTER THE RECEIPT OF THE NOTICE TO PROCEED.

HOWEVER, YOUR LETTER DATED JUNE 28, 1967, TO THE OFFICER IN CHARGE OF CONSTRUCTION, FT. BELVOIR, VIRGINIA, STATES IN PERTINENT PART AS FOLLOWS:

"IT IS OUR UNDERSTANDING THAT ALL BIDS AS COVERED BY SCHEDULES 1-5 HAVE BEEN ACCEPTED WITH THE UNDERSTANDING THAT ALL WOOD SHEATHING TO BE REPAIRED WILL BE PAID FOR AT A UNIT PRICE PER SQUARE FOOT. THIS BEING CORRECT OUR COMPANY, VIRGINIA ROOFING CORPORATION, SUBMITTED THE LOW AGGREGATE BID.'

ALSO, IN A LETTER TO THE OFFICER IN CHARGE OF CONSTRUCTION DATED JUNE 29, 1967, 1 DAY AFTER THE AWARD OF THE CONTRACT, YOU STATED THAT YOUR PRICE FOR SCHEDULE I OF $20,637 INCLUDES 2,000 SQUARE FEET OF WOOD SHEATHING AT $0.50 PER SQUARE FOOT OR $1,000. YOU STATE THAT THIS WAS YOUR TOTAL BID FOR BID SCHEDULE 1 AS NOTED ON THE BID FORM YOU SUBMITTED. YOU FURTHER STATED THAT IF THE AGGREGATE AMOUNT OF THE BID IS TO INCLUDE WOOD SHEATHING, YOUR COMPANY'S BID WOULD BE $87,382 OR LESS THAN STILL'S ACCEPTED BID OF $88,367. SCHEDULE I OF THE UNIT PRICE SCHEDULE AND YOUR BID THEREON APPEARS AS FOLLOWS: "ITEM DESCRIPTION QUANTITY UNIT UNIT PRICE

BASE BID SCHEDULE I, FH-15-67

1. REMOVE AND REPLACE EXISTING ROOFING 1 JOB $ 20,637.00

AND FLASHING INCLUDING ALL WORK ----------

INCIDENTAL THERETO EXCLUSIVE OF ITEM

NO. 2 BELOW FOR BUILDINGS:

ESTIMATED

QUANTITY UNIT UNIT PRICE

2.REMOVE AND REPLACE DETERIORATED

SHEATHING ON BUILDINGS IN ITEM 1. 2,000 SF $ .50

TOTAL AMOUNT - BID SCHEDULE I $ 20,637.00"

SCHEDULE I HAS A SPACE FOR TOTAL DOLLARS TO BE FILLED IN. HOWEVER, NO SUCH SPACE WAS PROVIDED IN SCHEDULES II THROUGH V. IN ADDITION, THE STATEMENT IN PARAGRAPH 3A OF THE NOTES TO THE SCHEDULE THAT "AWARD WILL BE MADE * * * IN THE ORDER OF STATED PRIORITY," IS NOT ENTIRELY CLEAR. BECAUSE YOUR BID FOR ITEM 1 AND ITS TOTAL FOR SCHEDULE I ARE IDENTICAL, IT IS IMPOSSIBLE TO ASCERTAIN FROM YOUR BID WHETHER YOUR BID PRICE OF $20,637 FOR ITEM 1 INCLUDED ITEM 2. HOWEVER, IF YOUR BID FOR ITEM 1 DID INCLUDE ITEM 2, AS YOU CONTEND, THEN YOU MISINTERPRETED THE REQUIREMENTS OF THE INVITATION SINCE THE DESCRIPTION OF ITEM 1 INDICATES THAT THE BID PRICE FOR THAT ITEM IS ,EXCLUSIVE OF ITEM 2.' THERE IS NO EVIDENCE THAT THE OTHER TWO BIDDERS INCLUDED THE PRICE FOR ITEM 2 IN THEIR PRICE FOR ITEM 1. IN ANY EVENT, IF YOU MISINTERPRETED THE UNIT PRICE SCHEDULE, THERE WAS NO AUTHORITY TO CORRECT YOUR BID AFTER BIDS WERE OPENED. OUR OFFICE HAS HELD THAT TO PERMIT A BIDDER AFTER OPENING OF BIDS TO CORRECT AN ERROR WHICH WAS NOT OBVIOUS ON THE FACE OF THE BID AND WHICH WOULD DISPLACE ONE OR MORE BIDS WOULD BE PREJUDICIAL TO THE RIGHTS OF OTHER BIDDERS AND CONTRARY TO THE INTEREST OF THE GOVERNMENT IN THE PRESERVATION AND MAINTENANCE OF THE COMPETITIVE BIDDING SYSTEM. SEE 37 COMP. GEN. 210. CORRECTION OF YOUR BID COULD NOT HAVE BEEN ALLOWED SINCE IT DID NOT CONTAIN AN OBVIOUS ERROR ON ITS FACE AND CORRECTION WOULD HAVE DISPLACED THE LOW BIDDER. SEE ASPR 2-406.3.

HEADQUARTERS, UNITED STATES CONTINENTAL ARMY COMMAND, ACKNOWLEDGES THAT THE BID SCHEDULE IN THE INVITATION WAS STRUCTURALLY WEAK AND THAT NOTE 3 OF THE SCHEDULE COULD HAVE BEEN WORDED MORE CLEARLY. WE ARE ADVISED THAT THESE WEAKNESSES HAVE BEEN BROUGHT TO THE ATTENTION OF THE FIRST UNITED STATES ARMY. HOWEVER, ON THE RECORD BEFORE US, WE BELIEVE THAT THE AWARD MADE TO L.F. STILL AND COMPANY WAS PROPER UNDER THE CIRCUMSTANCES.