B-164388, JUL. 29, 1968

B-164388: Jul 29, 1968

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BARTLETT COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 20. THE SUBJECT INVITATION WAS ISSUED ON DECEMBER 7. BIDS WERE SCHEDULED FOR OPENING ON JANUARY 9. AN AMENDMENT WAS ISSUED ON JANUARY 3 INCORPORATING WAGE DETERMINATION NUMBER 67-516. TWO BIDS WERE RECEIVED AND OPENED ON THE DATE SCHEDULED. 787.50 AND THE OTHER BID RECEIVED WAS IN THE AMOUNT OF $23. YOU REPLIED THAT YOUR BID WAS IN ERROR AS IT SHOULD HAVE BEEN IN THE AMOUNT OF $23. YOU STATED THAT THE PRICES FOR A THEN CURRENT CONTRACT AT MOODY AIR FORCE BASE "WERE USED INSTEAD OF THE PRICES AT LAREDO". ATTACHED IS THE RECAP OF OUR ORIGINAL BID SHEET.'. WE HAVE RECEIVED YOUR LETTER DATED 19 FEBRUARY 1968. PLEASE FORWARD THE BID FROM WHICH THE UNIT PRICE FIGURES WERE TRANSPOSED.

B-164388, JUL. 29, 1968

TO A.G. BARTLETT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1968, PROTESTING AGAINST CONSIDERATION OF YOUR BID AS SUBMITTED AND AWARD OF A CONTRACT TO YOUR FIRM PURSUANT TO INVITATION FOR BIDS NO. F41641-68-B-0622, ISSUED BY THE BASE PROCUREMENT OFFICE, LAREDO AIR FORCE BASE, TEXAS.

THE SUBJECT INVITATION WAS ISSUED ON DECEMBER 7, 1967, TO PROCURE PHOTOGRAPHIC SERVICES FOR THE PERIOD APRIL 1, 1968, THROUGH MARCH 31, 1969. BIDS WERE SCHEDULED FOR OPENING ON JANUARY 9, 1968. HOWEVER, AN AMENDMENT WAS ISSUED ON JANUARY 3 INCORPORATING WAGE DETERMINATION NUMBER 67-516, DATED DECEMBER 29, 1967, AND EXTENDING OPENING UNTIL JANUARY 22, 1968. TWO BIDS WERE RECEIVED AND OPENED ON THE DATE SCHEDULED. YOU BID $18,787.50 AND THE OTHER BID RECEIVED WAS IN THE AMOUNT OF $23,558.50.

BECAUSE OF THE DIFFERENCE OF APPROXIMATELY 20 PERCENT IN THE TWO BIDS, THE CONTRACTING OFFICER REQUESTED VERIFICATION FROM YOU. IN A LETTER DATED FEBRUARY 14, 1968, YOU REPLIED THAT YOUR BID WAS IN ERROR AS IT SHOULD HAVE BEEN IN THE AMOUNT OF $23,312.25, AND YOU REQUESTED THAT YOU BE ALLOWED TO EITHER CORRECT OR WITHDRAW IT. AS TO THE CAUSE OF THE ERROR, YOU STATED THAT THE PRICES FOR A THEN CURRENT CONTRACT AT MOODY AIR FORCE BASE "WERE USED INSTEAD OF THE PRICES AT LAREDO". AS PROOF OF THE ALLEGED ERROR YOU ENCLOSED A MEMORANDUM DATED JANUARY 8, 1968, TO YOUR OFFICE MANAGER WHICH READS AS FOLLOWS:

"ATTACHED PLEASE FIND THE ABOVE BID FORMS FROM LAREDO ON PHOTO. CHECK OVER AND COMPARE TO OUR PRESENT PHOTO CONTRACTS AT MOODY AFB AND OUR PHOTO CONTRACT AT WILLIAMS AFB. REFER ALSO TO OUR LAST YEARS BID ON PHOTO AT LAREDO, AND BID THE SAME.'

BY LETTER DATED FEBRUARY 16, 1968, THE CONTRACTING OFFICER ADVISED YOU THAT YOUR REQUEST TO CORRECT OR WITHDRAW MUST BE SUPPORTED BY EVIDENCE SUBSTANTIATING THE ALLEGED MISTAKE, AND LISTED THE FOLLOWING EXAMPLES OF THE EVIDENCE REQUIRED:

"A. STATEMENTS (SWORN STATEMENTS IF POSSIBLE) CONCERNING THE ALLEGED MISTAKE.

"B. YOUR FILE COPY OF THE BID.

"C.ORIGINAL WORKSHEETS AND OTHER DATA USED IN PREPARING THE BID.

"D. SUBCONTRACTOR'S QUOTATIONS.

"E. PUBLISHED PRICE LISTS.

"F. ANY OTHER EVIDENCE WHICH MIGHT CONCLUSIVELY ESTABLISH THE EXISTENCE OF AN ERROR, THE MANNER IN WHICH IT OCCURRED, AND THE BID ACTUALLY INTENDED.' IN REPLY, YOU SUBMITTED AN AFFIDAVIT WITH THE FOLLOWING PERTINENT PARAGRAPH:

"IN THE PREPARATION OF OUR BID WE TRANSPOSED THE UNIT PRICE FIGURES CONTAINED IN ANOTHER IFB FOR PHOTOGRAPHIC SERVICES. THE CORRECT TOTAL FOR OUR BID SHOULD BE $23,312.25 INSTEAD OF $18,787.50. ATTACHED IS THE RECAP OF OUR ORIGINAL BID SHEET.'

ON FEBRUARY 23, 1968, THE CONTRACTING OFFICER ADVISED YOU AS FOLLOWS:

"1. WE HAVE RECEIVED YOUR LETTER DATED 19 FEBRUARY 1968; HOWEVER, THE DOCUMENTS WHICH YOU SUBMITTED DO NOT SATISFY THE GOVERNMENT'S REQUIREMENT FOR CLEAR AND CONVINCING EVIDENCE OF A MISTAKE IN BID.

"2. PLEASE FORWARD THE BID FROM WHICH THE UNIT PRICE FIGURES WERE TRANSPOSED, AND ANY OTHER EVIDENCE AS REQUESTED IN OUR LETTER OF FEBRUARY 16, 1968, IF AVAILABLE.' ON FEBRUARY 26, 1968, YOU WROTE THE CONTRACTING OFFICER AND ADVISED THAT THE ORIGINAL WORK SHEET HAD BEEN LOST OR DESTROYED. IN ADDITION, YOU AGAIN SUBMITTED A RECAP OF THE WORKSHEET.

THEREAFTER, THE CONTRACTING OFFICER FORWARDED THE FILE TO THE STAFF JUDGE ADVOCATE, AIR FORCE LOGISTICS COMMAND, WHO HAS BEEN DELEGATED AUTHORITY TO DECIDE SUCH MATTERS BY ARMED SERVICES PROCUREMENT REGULATION 2-406.3 (B) (3). BEFORE MAKING A DECISION ON THE RECORD SUBMITTED BY THE CONTRACTING OFFICER, THE OFFICE OF THE STAFF JUDGE ADVOCATE CONTACTED THE PROCUREMENT OFFICER AT MOODY AIR FORCE BASE. IT IS REPORTED THAT THIS INQUIRY REVEALED THAT YOU HAD BID ON A SOLICITATION FOR PHOTOGRAPHIC SERVICES AT THAT BASE; THAT THREE ITEMS (1, 2 AND 6) WERE IDENTICAL ON THE MOODY AND LAREDO SOLICITATIONS, ALTHOUGH THE QUANTITIES WERE DIFFERENT; THAT THE PRICES QUOTED BY YOU ON THESE THREE ITEMS WERE THE SAME IN BOTH BIDS; THAT THE MOODY SOLICITATION DID NOT HAVE ANY ITEMS SIMILAR TO THE OTHER NINE ITEMS ON THE LAREDO SOLICITATION; AND THAT THE MOODY SOLICITATION CONTAINED 17 ITEMS, WHEREAS THE LAREDO SOLICITATION CONTAINED ONLY 12 ITEMS. ON MARCH 11, 1968, THE STAFF JUDGE ADVOCATE ISSUED A DETERMINATION PURSUANT TO ASPR 2-406.3 (A) (4) THAT THE EVIDENCE WAS NOT CLEAR AND CONVINCING THAT THE BID AS SUBMITTED WAS NOT THE BID INTENDED AND, THEREFORE, NEITHER CORRECTION NOR WITHDRAWAL WOULD BE PERMITTED AND THE BID SHOULD BE CONSIDERED FOR AWARD IN THE AMOUNT SUBMITTED. THE CONTRACT WAS AWARDED TO YOUR FIRM ON MARCH 15, 1968, AND WE UNDERSTAND YOU ARE PERFORMING THEREUNDER.

ON MARCH 20, 1968, YOU DIRECTED AN APPEAL OF THE MARCH 11 DETERMINATION TO THE SECRETARY OF THE AIR FORCE. YOU WERE ADVISED THAT THE APPEAL WOULD BE CONSIDERED BY HEADQUARTERS, AIR FORCE LOGISTICS COMMAND. AS FURTHER EVIDENCE OF THE ALLEGED MISTAKE, YOU SUBMITTED A LIST OF BID FIGURES FOR 1967 AND 1968 FOR VARIOUS SERVICES AT LAREDO AFB. EXCEPT FOR PHOTOGRAPHIC SERVICES, THE 1968 BIDS ARE 16 TO 26 PERCENT HIGHER THAN THE 1967 BIDS. YOUR 1968 BID FOR PHOTOGRAPHIC SERVICES WAS $18,787.50 AS COMPARED TO $26,643 FOR 1967. YOU CONTEND THAT THIS 34 PERCENT DECREASE IN THE 1968 BID INDICATES A MISTAKE SINCE IT IS REASONABLE TO EXPECT AN INCREASE OVER 1967 IN VIEW OF THE INCREASE IN LABOR COSTS. IN THIS CONNECTION, THE AFLC POINTS OUT THAT YOUR ALLEGED INTENDED BID PRICE IS NOT MORE THAN THE 1967 BID, BUT 12 PERCENT BELOW IT.ALSO, THEY POINT OUT THAT ALTHOUGH YOU BID OVER $26,000 IN 1967, THE CONTRACT WAS AWARDED TO ANOTHER COMPANY IN THE AMOUNT OF $13,814 AND WAS SATISFACTORILY PERFORMED. ON APRIL 23, 1968, YOU WERE ADVISED BY HEADQUARTERS, AFLC, THAT YOUR APPEAL WAS DENIED.

UNDER ASPR 2-406.3 (A) THE CONTRACTING AGENCY IS AUTHORIZED TO DETERMINE, IN CONNECTION WITH MISTAKES ALLEGED AFTER OPENING BUT PRIOR TO AWARD, THAT THE BID SHOULD BE CONSIDERED FOR AWARD IN THE FORM SUBMITTED WHERE THE EVIDENCE IS NOT CLEAR AND CONVINCING THAT THE BID AS SUBMITTED WAS NOT THE BID INTENDED. WE HAVE REVIEWED THE EVIDENCE SUBMITTED BY YOU IN SUPPORT OF THE CLAIM OF ERROR AND WE CANNOT DISAGREE WITH THE ADMINISTRATIVE DETERMINATION THAT THE EVIDENCE DOES NOT CLEARLY AND CONVINCINGLY ESTABLISH THE FACT THAT A MISTAKE WAS MADE.

ACCORDINGLY, WE FIND NO LEGAL BASIS UPON WHICH YOU MAY BE AFFORDED ANY RELIEF FROM PERFORMANCE OF THE CONTRACT AT THE PRICE SPECIFIED THEREIN.