B-163193, FEB. 6, 1968

B-163193: Feb 6, 1968

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A LOW BIDDER WHO INADVERTENTLY INCLUDED WORD "ADD" IN THE SEPARATE PRICE FOR ALTERNATIVE ITEM WAS ALLOWED TO SUBMIT EVIDENCE THAT HE DID NOT WANT ALTERNATIVE ITEM PRICE ADDED BECAUSE IT WAS INCLUDED IN LUMP SUM. SINCE CONTRACTING OFFICER KNEW BIDDER WAS FAMILIAR WITH SEPARATED PRICE BIDS HE SUSPECTED ERROR. ALSO SINCE BIDDER WAS LOW A VOLUNTARY REDUCTION TO REFLECT CORRECTION WOULD NOT BE IMPROPER AND ACCEPTANCE WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS. HYATT: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28. YOUR PROTEST IS BASED UPON YOUR CONTENTION THAT MANSOUR WAS THE LOWEST COMPETENT BIDDER ON THE PROJECT AND THAT THE BID OF A.P. WAS NOT ENTITLED TO CONSIDERATION. THIS INFORMATION WAS REQUIRED FOR ACCOUNTING PURPOSES ONLY AND WAS NOT TO BE CONSIDERED AS A PART OF THE BASIS FOR AWARD.

B-163193, FEB. 6, 1968

BIDS - MISTAKES - REDUCTION DECISION DENYING PROTEST OF RAYMOND G. MANSOUR, INC., AGAINST AWARD TO A.P. WHITAKER AND SONS, INC., FOR CONSTRUCTION OF SOCIAL SECURITY ADMINISTRATION BUILDING IN HAVERHILL, MASS., UNDER INVITATION BY GSA. UNDER AN INVITATION WHICH CALLED FOR A LUMP SUM BID BUT REQUIRED SEPARATE PRICES ON SOME ALTERNATIVE ITEMS BECAUSE OF DOUBT AS TO APPROPRIATION, A LOW BIDDER WHO INADVERTENTLY INCLUDED WORD "ADD" IN THE SEPARATE PRICE FOR ALTERNATIVE ITEM WAS ALLOWED TO SUBMIT EVIDENCE THAT HE DID NOT WANT ALTERNATIVE ITEM PRICE ADDED BECAUSE IT WAS INCLUDED IN LUMP SUM. SINCE CONTRACTING OFFICER KNEW BIDDER WAS FAMILIAR WITH SEPARATED PRICE BIDS HE SUSPECTED ERROR. ALSO SINCE BIDDER WAS LOW A VOLUNTARY REDUCTION TO REFLECT CORRECTION WOULD NOT BE IMPROPER AND ACCEPTANCE WOULD NOT BE PREJUDICIAL TO OTHER BIDDERS.

TO MR. WILBUR A. HYATT:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 28, 1967, IN BEHALF OF RAYMOND G. MANSOUR, INC., PROTESTING AGAINST THE AWARD TO ANY OTHER BIDDER OF CONTRACT NO. GS-01B-PCC-0726 FOR THE CONSTRUCTION OF THE SOCIAL SECURITY ADMINISTRATION DISTRICT OFFICE BUILDING AT HAVERHILL, MASSACHUSETTS.

YOUR PROTEST IS BASED UPON YOUR CONTENTION THAT MANSOUR WAS THE LOWEST COMPETENT BIDDER ON THE PROJECT AND THAT THE BID OF A.P. WHITAKER AND SONS, INC., WAS NOT ENTITLED TO CONSIDERATION.

THE BID INVITATION CALLED FOR "ONE LUMP SUM BID" AS THE BASE BID, AND ALSO PROVIDED THAT "THE AMOUNT INCLUDED IN THE LUMP SUM BID FOR ITEMS SCHEDULED ON THE DRAWINGS UNDER SEPARATED PRICE SHALL BE STATED ON THE BID FORM.' THIS INFORMATION WAS REQUIRED FOR ACCOUNTING PURPOSES ONLY AND WAS NOT TO BE CONSIDERED AS A PART OF THE BASIS FOR AWARD. THE ONLY ITEM SCHEDULED UNDER ,SEPARATED PRICE" APPEARS TO HAVE BEEN THE COST OF TRANSPLANTING CERTAIN TREES.

THE INSTRUCTIONS FOR THE BID FORM CONTAINED NO REFERENCE TO OR SPACE FOR QUOTING ON ANY ALTERNATES, BUT THE SPECIFICATIONS CONTAINED TWO ITEMS WITH THE FOLLOWING HEADINGS: "43-20 GROUNDING FLAGPOLE ALTERNATE -E- "43-21 UNDERFLOOR DUCT SYSTEM ALTERNATE -F-"

SEVEN BIDS WERE RECEIVED, OF WHICH MANSOUR'S AND WHITAKER'S WERE THE LOWEST. MANSOUR QUOTED $118,110, UNDER WHICH WAS INSERTED:

"SEPARATE PRICE -- REMOVE AND RELOCATE TREES -- $400 INCLUDED IN BASE BID.

"ALTERNATE E ADD -- $ 50.00 *

"ALTERNATE F ADD -- 4,840.00 * "*NOTE: ALTERNATES E AND F TO BE ADDED TO BASE BID.'

WHITAKER'S BID WAS $118,442, FOLLOWED BY: "SEPARATE PRICES:

"FOR TRANSPLANTING TREES, PER SEC. 8-2 ADD $1400

"TO ELIMINATE UNDERFLOOR DUCT SYSTEM (ALT F) DEDUCT $4000

"ALTERNATE, GROUNDING FLAGPOLE NO CHARGE"

IT IS REPORTED THAT AT THE TIME THE BIDDING DOCUMENTS WERE ORIGINALLY PREPARED THERE WAS SOME DOUBT AS TO WHETHER SUFFICIENT FUNDS WOULD BE AVAILABLE TO OBTAIN ALL OF THE WORK DESIRED, AND SEVERAL ITEMS WERE STATED AS ALTERNATES IN ORDER TO PROVIDE SOME FLEXIBILITY IN THIS RESPECT. HOWEVER, BEFORE ISSUANCE OF THE INVITATION, ADDITIONAL FUNDS WERE SECURED, AND GSA INTENDS TO CONTRACT FOR THE ENTIRE WORK, INCLUDING THE ITEMS LABELED AS "ALTERNATES.' IN ORDER TO DETERMINE THE LOWEST BID FOR THE WORK TO BE AWARDED IT IS THEREFORE NECESSARY IN THE EVALUATION OF BIDS TO CONSIDER THE ALTERNATES.

IT IS YOUR CLIENT'S CONTENTION THAT IT IS THE LOW RESPONSIVE BIDDER AND WHITAKER'S BID SHOULD NOT BE CONSIDERED BECAUSE OF THE PLACING OF THE WORD "ADD" BEFORE THE SEPARATED PRICE. HOWEVER, UNDER THE ALTERNATE BIDS THERE WERE NO INSTRUCTIONS AS TO WHETHER THE ALTERNATE BIDS WERE TO BE ADDITIVE OR DEDUCTIVE BIDS. WHITAKER CHOSE TO SUBMIT A DEDUCTIVE BID, SHOWING THAT HIS BASE BID INCLUDED THE WORK COVERED BY THE ALTERNATE BIDS, WHILE YOUR CLIENT CHOSE TO MAKE AN ADDITIVE BID, REQUIRING THE PRICES FOR THE ALTERNATES TO BE ADDED TO THE BASE BID.

ON THIS BASIS, IT IS CLEAR THAT WHITAKER'S AGGREGATE BID FOR THE ENTIRE WORK TO BE AWARDED, INCLUDING THE $1400 STATED AS AN ADDITION FOR THE TREE RELOCATION, IS $119,842. IT IS EQUALLY CLEAR THAT THE MANSOUR BID FOR THE WORK TO BE AWARDED, INCLUDING ALTERNATES E AND F, IS $123,000.

THE CONTRACTING OFFICER STATES THAT UPON EXAMINING THE BID OF WHITAKER HE SUSPECTED AN ERROR AND THAT WHEN CONTACTED WHITAKER PROMPTLY AFFIRMED THE FACT THAT IT HAD MADE AN ERROR IN INCLUDING THE WORD "ADD" IN ITS STATEMENT OF "SEPARATED PRICE" FOR TREE LOCATION. SINCE WHITAKER APPARENTLY WAS FAMILIAR WITH THE SEPARATED PRICE PROCEDURES, THE CONTRACTING OFFICER WAS OF THE OPINION THAT THERE WAS SUFFICIENT EVIDENCE TO INDICATE THAT AN ERROR HAD BEEN MADE. IN ANY EVENT WHITAKER WAS THE LOW RESPONSIVE BIDDER; THEREFORE IT WOULD BE PROPER FOR THE GOVERNMENT TO ACCEPT A VOLUNTARY REDUCTION IN THE PRICE OFFERED BY WHITAKER TO REFLECT THE CORRECTION OF THE ERROR IN ITS BID. SEE ALECK LEITMAN V. UNITED STATES, 104 CT. CL. 324. IT IS APPARENT IN THE PRESENT CASE THAT ACCEPTANCE BY THE CONTRACTING OFFICER OF WHITAKER'S BID, EITHER AS SUBMITTED OR IN A REDUCED AMOUNT, WILL RESULT IN NO UNFAIRNESS OR DISADVANTAGE TO OTHER BIDDERS AND IS LEGALLY PROPER.