B-164592, JUL. 24, 1968

B-164592: Jul 24, 1968

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ON THE GROUND THAT IT IS IMPOSSIBLE TO DETERMINE THE BID PRICES INTENDED BY PEABODY FROM ITS BID AS SUBMITTED. FOUR ALTERNATE SCHEDULES LISTING DIFFERENT DIMENSIONS FOR THE PROPOSED BUILDING WERE SET OUT IN THE INVITATION AND BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE TO THE LOW BIDDER ON THE ALTERNATE UNIT PRICE SCHEDULE DETERMINED BY THE CONTRACTING OFFICER TO BE IN THE BEST INTERESTS OF THE GOVERNMENT. BIDS WERE OPENED ON JUNE 5. THE PEABODY BID WAS ULTIMATELY DETERMINED TO BE THE LOWEST ON ALL 4 SCHEDULES OF THE 5 BIDS RECEIVED. THERE WAS SOME QUESTION AS TO WHETHER PEABODY HAD SUBMITTED A RESPONSIVE BID BECAUSE THE PRICES INTENDED BY PEABODYON EACH OF THE 4 SCHEDULES WERE NOT IMMEDIATELY EVIDENT.

B-164592, JUL. 24, 1968

TO MISHARA CONSTRUCTION COMPANY, INC.:

YOUR LETTER DATED JUNE 11, 1968, WITH ENCLOSURES, PROTESTS THE PROPOSED AWARD OF A CONTRACT TO THE PEABODY CONSTRUCTION COMPANY UNDER INVITATION FOR BIDS NO. DACA33-68-B-0023, ISSUED BY THE UNITED STATES ARMY CORPS OF ENGINEERS, NEW ENGLAND DIVISION, ON THE GROUND THAT IT IS IMPOSSIBLE TO DETERMINE THE BID PRICES INTENDED BY PEABODY FROM ITS BID AS SUBMITTED.

THE SUBJECT INVITATION REQUESTED BIDS FOR THE CONSTRUCTION OF A BASE WAREHOUSE ADDITION AT LAURENCE G. HANACON FIELD, BEDFORD, MASSACHUSETTS. FOUR ALTERNATE SCHEDULES LISTING DIFFERENT DIMENSIONS FOR THE PROPOSED BUILDING WERE SET OUT IN THE INVITATION AND BIDDERS WERE ADVISED THAT AWARD WOULD BE MADE TO THE LOW BIDDER ON THE ALTERNATE UNIT PRICE SCHEDULE DETERMINED BY THE CONTRACTING OFFICER TO BE IN THE BEST INTERESTS OF THE GOVERNMENT. THE INVITATION REQUIRED THAT BIDS BE SUBMITTED IN DUPLICATE; THAT PRICES BE SUBMITTED FOR "ALL ITEMS AND SCHEDULES OF THE UNIT PRICE SCHEDULE; " AND THAT IN CASE OF ERROR IN THE EXTENSION OF PRICES, UNIT PRICES WOULD GOVERN.

BIDS WERE OPENED ON JUNE 5, 1968, AND THE PEABODY BID WAS ULTIMATELY DETERMINED TO BE THE LOWEST ON ALL 4 SCHEDULES OF THE 5 BIDS RECEIVED. BID OPENING, HOWEVER, THERE WAS SOME QUESTION AS TO WHETHER PEABODY HAD SUBMITTED A RESPONSIVE BID BECAUSE THE PRICES INTENDED BY PEABODYON EACH OF THE 4 SCHEDULES WERE NOT IMMEDIATELY EVIDENT. EACH OF THE 4 ALTERNATE SCHEDULES CONSISTED OF 5 ITEMS -- THE CONSTRUCTION OF THE WAREHOUSE ADDITION AND 4 ANCILLARY ITEMS. THE INVITATION PROVIDED A BLANK AT THE BOTTOM OF EACH SCHEDULE FOR THE TOTALS OF THE FIVE ITEMS.

THE ORIGINAL OF THE PEABODY BID SHOWED PRICES FOR EACH ITEM ON EACH SCHEDULE BUT DID NOT CONTAIN TOTAL SCHEDULE PRICES. RATHER, THE TOTALS FOR EACH SCHEDULE HAD BEEN CROSSED OUT AND INITIALED. THE PRICE LISTED FOR ITEM 1 OF SCHEDULE 1 (THE WAREHOUSE ADDITION) IN THE ORIGINAL OF THE PEABODY BID HAD BEEN CROSSED OUT AND INITIALED AND A NEW LOWER PRICE INSERTED IN ITS PLACE. ALSO, TWO TOTALS HAD BEEN LISTED AND CROSSED OUT FOR SCHEDULE 1 WITH ONLY ONE OF THE TWO TOTALS INITIALED. NEITHER TOTAL, HOWEVER, AGREED WITH THE SUM OF THE ITEMS IN SCHEDULE 1 AS AMENDED, NOR DID ANY OF THE TOTALS FOR THE OTHER SCHEDULES IN THE ORIGINAL PEABODY BID AGREE WITH THE ARITHMETICAL SUMS OF THE RESPECTIVE ITEMS. THE DUPLICATE COPY OF THE PEABODY BID DID NOT CORRESPOND WITH THE ORIGINAL BID IN THAT NO PRICES WERE QUOTED ON ANY OF THE FOUR SCHEDULES FOR ITEM 1, THE WAREHOUSE ADDITION, AND WHERE TOTALS WERE LISTED (ON SCHEDULES 1 AND 2), THEY DID NOT AGREE WITH EITHER THE ARITHMETICAL SUM OF THE ITEMS FOR WHICH PRICES WERE QUOTED IN THE DUPLICATE COPY OF THE BID OR WITH THE ARITHMETICAL SUMS OF THE ITEMS LISTED IN THE ORIGINAL BID. THE PRICES SHOWN IN THE DUPLICATE COPY OF THE BID FOR THE ANCILLARY ITEMS (2-5) IN EACH SCHEDULE DID, HOWEVER, CORRESPOND WITH THE PRICES QUOTED IN THE ORIGINAL.

BECAUSE OF THE APPARENT INCONSISTENCIES IN THE PEABODY BID SUMMARIZED ABOVE, THE BID OPENING OFFICER APPARENTLY MADE A STATEMENT TO THE EFFECT THAT THE PEABODY BID COULD NOT BE ACCEPTED AND WOULD BE TREATED AS A "NO BID.' UPON FURTHER ANALYSIS, HOWEVER, IT WAS CONCLUDED THAT THE PEABODY BID WAS ACCEPTABLE BECAUSE THE CROSSED-OUT PRICES OF THE ORIGINAL BID WERE PROPERLY INITIALED BY AN AUTHORIZED REPRESENTATIVE OF PEABODY, AND BECAUSE THE ORIGINAL BID CONTAINED ITEM PRICES FOR EACH ITEM OF EACH SCHEDULE, THE TOTALS FOR WHICH COULD BE DETERMINED BY THE ARITHMETICAL PROCESS OF ADDITION. MOREOVER, IT WAS DETERMINED THAT THE DUPLICATE COPY OF THE BID, WHILE PATENTLY INCOMPLETE, DID NOT CONFLICT WITH THE ORIGINAL BID IN ANY MATERIAL RESPECT. HENCE, IT WAS CONCLUDED THAT IT WAS POSSIBLE TO DETERMINE FROM THE BID ITSELF THE PRICES INTENDED BY PEABODY. ACCORDINGLY, THE FAILURE TO SHOW SCHEDULE TOTALS ON THE ORIGINAL BID AND THE FAILURE TO SUBMIT COMPLETED BID FORMS IN DUPLICATE, AS REQUIRED BY THE INVITATION, WERE DETERMINED TO BE MINOR INFORMALITIES WHICH PROPERLY COULD BE WAIVED BY THE CONTRACTING OFFICER UNDER ASPR 2-405. THEREFORE, THE PEABODY BID WAS ADMINISTRATIVELY DETERMINED TO BE THE LOWEST RESPONSIVE BID. THE TOTALS FOR EACH SCHEDULE, AS SET OUT IN THE BID ABSTRACT FOR BOTH PEABODY AND YOUR COMPANY, THE SECOND LOW BIDDER, ARE AS FOLLOWS:

SCHEDULE I SCHEDULE II SCHEDULE III SCHEDULE IV PEABODY CONSTRUCTION CO. $376,700 $356,100 $334,800 $321,200 MISHARA CONSTRUCTION $389,317 $367,511 $351,736 $332,408 CO., INC.

NO AWARD HAS BEEN MADE PENDING THE RESOLUTION OF YOUR PROTEST, AND WE UNDERSTAND THAT YOUR FIRM AND PEABODY, THE TWO LOW BIDDERS, HAVE AGREED TO EXTEND YOUR RESPECTIVE BID ACCEPTANCE PERIODS TO AUGUST 5, 1968.

IT IS YOUR PRIMARY CONTENTION THAT THE TWO COPIES OF THE PEABODY BID ARE SUSCEPTIBLE OF SEVERAL DIFFERENT INTERPRETATIONS LEADING TO SEVERAL DIFFERENT POSSIBLE BID PRICES ON THE VARIOUS SCHEDULES, THEREBY GIVING PEABODY THE OPPORTUNITY TO ADVANCE, AFTER BID OPENING, THE INTERPRETATION OF ITS BID PRICES MOST FAVORABLE TO ITSELF. YOU ALSO CONTEND THAT IT IS NOT CLEAR THAT THE CROSSED-OUT ITEM BID PRICES AND SCHEDULE TOTALS IN THE PEABODY BID WERE IN FACT INITIALED BY THE PERSON WHO SIGNED THE BID. FURTHER, YOU BELIEVE THAT THE PEABODY BID IS INCOMPLETE AND THEREFORE FOR REJECTION BECAUSE ONE COPY SHOWED CROSSED OUT SCHEDULE TOTALS AND THE OTHER COPY SHOWED ONLY TWO SCHEDULE TOTALS AND OMITTED INDIVIDUAL BID ITEM PRICES IN EACH SCHEDULE. FINALLY, YOU CONTEND THAT THE THIRD DIGIT OF THE REVISED BID FIGURE FOR ITEM 1-1 OF SCHEDULE 1 APPEARING ON THE ORIGINAL COPY OF THE PEABODY BID "IS OBSCURE AND CAN BE CONSTRUED IN TWO WAYS.'

FOR REASONS SET OUT BELOW, IT IS OUR CONCLUSION THAT THE PEABODY BID IS PROPERLY FOR CONSIDERATION. AS STATED EARLIER, THE INVITATION REQUIRED THAT PRICES BE SUBMITTED FOR ALL ITEMS AND SCHEDULES OF THE UNIT PRICE SCHEDULE AND THAT UNIT PRICES WOULD GOVERN IN THE EVENT OF ERRORS IN THE EXTENSION OF UNIT PRICES. ADDITIONALLY, THE INVITATION REQUIRED THAT ANY LUMP-SUM ADJUSTMENTS TO THE TOTAL ESTIMATED COST SHALL BE APPLIED ON A PRORATA BASIS TO EVERY UNIT PRICE IN THE BID SCHEDULE. CLEARLY, THE INVITATION AS A WHOLE EVIDENCES AN INTENT THAT THE UNIT PRICES SHOWN IN EACH SCHEDULE ARE THE BASES UPON WHICH AWARD IS TO BE MADE, AND THAT THE SCHEDULE TOTALS REPRESENT AN ARITHMETICAL SUM OF THE INDIVIDUAL UNIT PRICES. SEE 43 COMP. GEN. 579; ID, 817; B-161063, JUNE 8, 1967. THEREFORE, THE FACT THAT THE ORIGINAL BID SHOWED ONLY CROSSED-OUT SCHEDULE TOTALS DID NOT CREATE ANY DOUBT AS TO THE TOTAL SCHEDULE PRICES INTENDED SINCE THE TOTALS COULD BE CONCLUSIVELY DETERMINED BY ADDITION OF THE UNIT PRICES. FOR THE SAME REASON, THE QUESTION OF THE VALIDITY OR ABSENCE OF INITIALS NEXT TO THE CROSSED-OUT SCHEDULE TOTALS HAS NO RELEVANCE SINCE EVEN THOUGH THE OBVIOUSLY ERRONEOUS TOTALS HAD NOT BEEN CROSSED OUT, SUCH TOTALS MAY PROPERLY BE CORRECTED BY THE CONTRACTING OFFICER. 43 COMP. GEN. 579; ID. 817; B-161063, JUNE 8, 1967.

THE DUPLICATE COPY OF THE PEABODY BID WAS CLEARLY INCOMPLETE SINCE IT FAILED TO QUOTE PRICES FOR ALL ITEMS AND SCHEDULES AS REQUIRED BY THE INVITATION. HOWEVER, SINCE THE PRICES ACTUALLY INTENDED FOR THE WAREHOUSE ADDITION ARE THOSE QUOTED IN THE ORIGINAL BID, THE CONTRACTING OFFICER MAY WAIVE THE DEFICIENCIES APPEARING IN THE DUPLICATE COPY PURSUANT TO THE PROVISIONS OF ASPR 2-405 AND EVALUATE THE PEABODY BID ON THE BASIS OF ITS ORIGINAL BID ONLY. SEE SUBPARAGRAPH (I) OF ASPR 2-405 WHICH PROVIDES FOR THE WAIVER OF A MINOR INFORMALITY IN A CASE WHERE THERE IS A FAILURE TO RETURN THE NUMBER OF SIGNED BIDS REQUIRED BY THE INVITATION.

WITH REGARD TO YOUR CONTENTION THAT THE THIRD DIGIT OF THE REVISED FIGURE FOR ITEM 1 OF SCHEDULE 1 IN THE ORIGINAL BID CAN BE CONSTRUED TWO WAYS, THE DEPARTMENT OF THE ARMY HAS ADVISED THAT "NO DIFFICULTY WAS EXPERIENCED IN READING THE FIGURES FOR THE VARIOUS ITEMS.' THE FIGURE IN QUESTION WAS READ BY THE CONTRACTING OFFICER TO BE $327,800, AND AFTER INSPECTING THE FIGURE AS WRITTEN IN THE ORIGINAL BID, WE ARE UNABLE TO CONCLUDE THAT ANY ONE OF THE SIX DIGITS IN THE FIGURE CAN REASONABLY BE CONSTRUED IN A MANNER OTHER THAN AS CONSTRUED BY THE CONTRACTING OFFICER. FINALLY, WE ARE ADVISED THAT THE INITIALS APPEARING BESIDE THE CROSSED-OUT FIGURE FOR ITEM 1 OF SCHEDULE 1 APPEAR TO BE THOSE OF JOSEPH H. FISH, JR., THE PRESIDENT OF THE PEABODY CONSTRUCTION COMPANY, WHO DELIVERED THE BID AND SIGNED THE BID BOND. WE HAVE HELD THAT WHERE NO QUESTION EXISTS AS TO THE PRICE INTENDED, IRREGULARITIES IN INITIALLING BID PRICE CHANGES MAY BE WAIVED AS MINOR IRREGULARITIES UNDER ASPR 2-405. B-149668, OCTOBER 5, 1962; B-161063, JUNE 8, 1967.

SINCE NEITHER THE FAILURE OF PEABODY TO LIST SCHEDULE TOTALS IN ITS ORIGINAL BID NOR ITS FAILURE TO SUBMIT COMPLETED BID FORMS IN DUPLICATE HAD ANY EFFECT ON THE PRICE, QUANTITY, OR QUALITY OF THE PROCUREMENT, SUCH FAILURES PROPERLY MAY BE CONSIDERED AS MINOR INFORMALITIES AND, AS SUCH, MAY BE WAIVED UNDER ASPR 2-405 WITHOUT PREJUDICE TO OTHER BIDDERS. ACCORDINGLY, WE CONCLUDE THAT THE PROPOSED AWARD TO PEABODY AS THE LOWEST RESPONSIVE BIDDER IS NOT SUBJECT TO QUESTION BY OUR OFFICE. YOUR PROTEST THEREFORE MUST BE DENIED.