B-162573, OCT. 30, 1967

B-162573: Oct 30, 1967

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STATED THAT BID PRICE SHOULD HAVE BEEN $27.79 AND WHO SUBSEQUENTLY SENT WORKSHEET DETAILING BREAKDOWN OF ITEMS MAY HAVE DETERMINATION TO PERMIT CORRECTION SUSTAINED SINCE EVIDENCE ESTABLISHED ERROR. TO GENERAL HEDLUND: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 25. FIVE BIDS WERE RECEIVED RANGING IN PRICE FROM A LOW OF $7.79 TO A HIGH OF $54.68. IN THAT ITS PRICE SHOULD HAVE BEEN $33.72. ON AUGUST 24 IT WAS PERMITTED TO WITHDRAW ITS BID IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3 (A) (1). IMMEDIATELY STATED THAT THE PRICE OF $7.79 WAS AN ERROR AND THAT ITS INTENDED BID WAS $27.79 EACH. MINNESOTA ENCLOSED COPIES OF THE WORK SHEETS UTILIZED IN COMPUTING THE BID AND STATED THAT THE BID WAS PROCESSED DURING THE VACATION PERIOD AND INEXPERIENCED EMPLOYEES HAD FAILED TO CHECK OUT THE BID PRICE.

B-162573, OCT. 30, 1967

BIDS - MISTAKES - CORRECTION DECISION TO DEFENSE SUPPLY AGENCY CONCERNING PROTEST OF KINGS POINT MANUFACTURING CO., INC., AGAINST CORRECTION OF BID PRICE OF MINNESOTA AEROSPACE CORPORATION. LOW BIDDER WHO, UPON REQUEST TO VERIFY LOW BID OF $7.79 WHEN OTHER BIDS RANGED FROM $24.25 TO $33.72, STATED THAT BID PRICE SHOULD HAVE BEEN $27.79 AND WHO SUBSEQUENTLY SENT WORKSHEET DETAILING BREAKDOWN OF ITEMS MAY HAVE DETERMINATION TO PERMIT CORRECTION SUSTAINED SINCE EVIDENCE ESTABLISHED ERROR, HOW IT OCCURRED AND THE INTENDED BID PRICE.

TO GENERAL HEDLUND:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 25, 1967, FROM YOUR ASSISTANT COUNSEL (REFERENCE DSAH-G), CONCERNING THE PROTEST OF KINGS POINT MANUFACTURING COMPANY, INC. (KINGS POINT), AGAINST CORRECTION OF THE BID PRICE SUBMITTED BY MINNESOTA AEROSPACE CORPORATION (MINNESOTA) UNDER INVITATION FOR BIDS DSA 400-67-B-8438, ISSUED BY THE DEFENSE GENERAL SUPPLY CENTER, RICHMOND, VIRGINIA.

THE ABOVE MENTIONED INVITATION SOLICITED BIDS TO BE OPENED ON JUNE 28 FOR A TOTAL OF 6,923 EACH FSN 7240-125-9061 CASE, MILITARY WATER CAN,VINYL COATED CANVAS, INSULATED CONSTRUCTION IN ACCORDANCE WITH SPECIFICATIONS MIL-C-11430B DATED MARCH 14, 1966. FIVE BIDS WERE RECEIVED RANGING IN PRICE FROM A LOW OF $7.79 TO A HIGH OF $54.68. MINNESOTA SUBMITTED THE LOW BID OF $7.79 AND REVERE PLASTICS, INC., SUBMITTED THE SECOND LOW BID OF $24.25. REVERE PLASTICS ALLEGED A MISTAKE, IN THAT ITS PRICE SHOULD HAVE BEEN $33.72, AND ON AUGUST 24 IT WAS PERMITTED TO WITHDRAW ITS BID IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3 (A) (1). KINGS POINT SUBMITTED THE THIRD LOW BID OF $32.57.

THE UNUSUALLY LOW PRICE SUBMITTED BY MINNESOTA CAUSED THE CONTRACTING OFFICER TO SUSPECT THAT MINNESOTA HAD MADE A MISTAKE. WHEN THE CONTRACTING OFFICER TELEPHONED TO REQUEST VERIFICATION, THE FIRM'S PRESIDENT, MR. BENJAMIN C. BOWER, IMMEDIATELY STATED THAT THE PRICE OF $7.79 WAS AN ERROR AND THAT ITS INTENDED BID WAS $27.79 EACH. BY WIRE DATED JUNE 30, 1967, MINNESOTA CONFIRMED ITS INTENDED BID PRICE OF $27.79. BY LETTER OF AUGUST 11, 1967, MINNESOTA ENCLOSED COPIES OF THE WORK SHEETS UTILIZED IN COMPUTING THE BID AND STATED THAT THE BID WAS PROCESSED DURING THE VACATION PERIOD AND INEXPERIENCED EMPLOYEES HAD FAILED TO CHECK OUT THE BID PRICE. BY LETTER DATED AUGUST 22 MINNESOTA ADVISED THAT THE OMISSION OF THE "2" FROM THE INTENDED BID PRICE OCCURRED WHEN AN INEXPERIENCED EMPLOYEE TYPED THE BID PRICE FROM INTER-OFFICE CORRESPONDENCE.

PURSUANT TO ASPR 2-406.3 (B) (4) THE MATTER WAS SUBMITTED TO HIGHER AUTHORITY WITH A RECOMMENDATION THAT THE BID BE CORRECTED TO $27.79 PURSUANT TO ASPR 2-406.3 (A) (2). BY LETTER OF SEPTEMBER 12, 1967, OFFICE OF COUNSEL, DEFENSE SUPPLY AGENCY, DETERMINED THAT THERE WAS CLEAR AND CONVINCING EVIDENCE BOTH AS TO THE MISTAKE AND THE BID INTENDED AND THAT MINNESOTA'S BID COULD BE CORRECTED TO $27.79. HOWEVER, KINGS POINT ALLEGED THAT THERE WAS NO WAY OF DETERMINING WHETHER MINNESOTA'S INTENDED BID WAS $17.79, $27.79 OR $37.79 AND PROTESTED ANY AWARD TO MINNESOTA UNDER THE INVITATION.

OUR OFFICE HAS CONSISTENTLY HELD, AND IT IS SO PROVIDED IN ASPR 2 406.3 (A) (2), THAT WHERE A MISTAKE IN A BID IS ALLEGED AFTER OPENING BUT BEFORE AWARD AND THERE IS PRESENTED CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE, HOW IT OCCURRED, AND WHAT THE BID WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE BID MAY BE CORRECTED, IF SUCH CORRECTION WOULD NOT AFFECT THE RELATIVE STANDING OF OTHER BIDDERS. 37 COMP. GEN. 210; 35 COMP. GEN. 279, 281. THE AUTHORITY TO PERMIT CORRECTION OF BIDS AS PROVIDED FOR IN ASPR 2-406.3 (A) WAS GRANTED TO THE MILITARY DEPARTMENTS (SUBJECT TO OUR REVIEW) BY OUR DECISION B-120281, JUNE 29, 1954. SEE B-156444, APRIL 26, 1965.

WE HAVE CAREFULLY EXAMINED THE DOCUMENTS SUBMITTED AND CONCLUDE THAT THEY AMPLY SUPPORT THE DETERMINATION BY THE OFFICE OF COUNSEL. IT IS OUR VIEW THAT THE ALLEGATION OF ERROR PRIOR TO AWARD, SUPPORTED BY MINNESOTA'S WORK SHEET, AND THE DISPARITY BETWEEN ITS BID AND THE OTHER BIDS RECEIVED, ESTABLISHES BEYOND DOUBT THAT A MISTAKE WAS MADE. FURTHER, THE WORK SHEET USED IN COMPUTING MINNESOTA'S BID CONTAINS A DETAILED BREAKDOWN OF THE BID COMPUTATION WHICH FULLY SUPPORTS THE FIGURE OF $27.79 ALLEGED TO HAVE BEEN INTENDED.

ACCORDINGLY, AND SINCE IT IS OUR UNDERSTANDING THAT MINNESOTA'S DELAY IN SUBMITTING EVIDENCE OF ERROR WAS ATTRIBUTABLE TO DELAY IN PERMITTING REVERE PLASTICS TO WITHDRAW ITS BID, WE CONCUR IN THE DETERMINATION PERMITTING MINNESOTA TO CORRECT ITS BID, AND THE PROTEST OF KINGS POINT MUST THEREFORE BE DENIED.

THE FILE RECEIVED WITH YOUR ASSISTANT COUNSEL'S LETTER OF SEPTEMBER 25 IS RETURNED.