B-165769, JAN. 21, 1969

B-165769: Jan 21, 1969

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CORNWALL AND MCCARTHY: REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 7. BIDDERS WERE TO INSERT IN THE APPROPRIATE BLANK SPACES UNIT PRICES AND EXTENDED PRICES. EXTENDED PRICES UNDER BOTH GROUPS WERE TO BE COMPUTED BY MULTIPLYING EACH UNIT BID BY THE INDICATED APPROXIMATE QUANTITY. THERE WERE TWO SPACES PROVIDED FOR BIDDERS TO INDICATE THEIR TOTAL BIDS FOR GROUPS A AND B. THE AWARD CLAUSE OF THE INVITATION ADVISED PROSPECTIVE BIDDERS THAT "AWARD WILL BE MADE AS A WHOLE TO ONE BIDDER. INSOFAR AS THE PRESENT PROTEST IS CONCERNED. PROVIDES UNDER CLAUSE 10 (A) THAT "AWARD OF CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID. IS MOST ADVANTAGEOUS TO THE GOVERNMENT. TWELVE BIDS WERE OPENED AS SCHEDULED ON NOVEMBER 13.

B-165769, JAN. 21, 1969

TO VAN SCOTT, BAGLEY, CORNWALL AND MCCARTHY:

REFERENCE IS MADE TO YOUR TELEGRAM OF DECEMBER 7, 1968, PROTESTING, ON BEHALF OF INTERSTATE ELECTRIC CO., INC., THE AWARD OF A CONTRACT TO ANOTHER BIDDER UNDER BONNEVILLE POWER ADMINISTRATION INVITATION FOR BIDS 1386.

THE INVITATION, ISSUED OCTOBER 21, 1968, AS AMENDED, SOLICITED BIDS FOR THE CONSTRUCTION OF 24.9 MILES OF 138 KV TRANSMISSION LINE BETWEEN THE MINIDOKA POWERHOUSE AND UNITY SUBSTATION, CASSIA AND MINIDOKA COUNTIES, IDAHO. THE INVITATION REQUESTED BIDS ON TWO GROUPS OF WORK; A AND B. GROUP A, COMPRISED OF 14 ITEMS, ENTITLED "CLEARING AND ACCESS ROADS," LISTED APPROXIMATE QUANTITIES AND BID UNITS FOR EACH ITEM, AND BIDDERS WERE TO INSERT IN THE APPROPRIATE BLANK SPACES UNIT PRICES AND EXTENDED PRICES. GROUP B, ENTITLED "LINE CONSTRUCTION," COMPRISED OF 41 ITEMS -- 15 THROUGH 55 -- HAD THE SAME FORMAT AS GROUP A. EXTENDED PRICES UNDER BOTH GROUPS WERE TO BE COMPUTED BY MULTIPLYING EACH UNIT BID BY THE INDICATED APPROXIMATE QUANTITY. IN ADDITION, THERE WERE TWO SPACES PROVIDED FOR BIDDERS TO INDICATE THEIR TOTAL BIDS FOR GROUPS A AND B, AND FOR THE TOTAL OF THE TWO GROUPS; I.E., ITEMS 1 THROUGH 55.

THE AWARD CLAUSE OF THE INVITATION ADVISED PROSPECTIVE BIDDERS THAT "AWARD WILL BE MADE AS A WHOLE TO ONE BIDDER," AND INCORPORATED BY REFERENCE THE PROVISIONS OF FORM BPA 978, REVISED AUGUST 1966. THAT FORM, IN PART, ADMONISHED BIDDERS TO "NOTE" THE INSTRUCTIONS TO BIDDERS PROVISIONS OF STANDARD FORM (SF) 22, JUNE 1964 EDITION, WHICH, INSOFAR AS THE PRESENT PROTEST IS CONCERNED, PROVIDES UNDER CLAUSE 10 (A) THAT "AWARD OF CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'

TWELVE BIDS WERE OPENED AS SCHEDULED ON NOVEMBER 13, 1968, AND INTERSTATE'S TOTAL BID PRICE FOR BOTH GROUPS IN THE AMOUNT OF $196,176.50 WAS THE LOWEST BID RECEIVED. WIRE INSTALLATION CONTRACTORS' BID IN THE AGGREGATE AMOUNT OF $204,905 WAS SECOND LOW. UPON FURTHER EXAMINATION OF INTERSTATE'S BID, THE CONTRACTING OFFICIALS DISCOVERED THAT THE EXTENDED UNITE PRICES FOR ITEMS 45, 46, 47, AND 48 WERE INCORRECT AND THAT INTERSTATE HAD FAILED TO BID A PRICE FOR ITEM 49, GROUP B, COVERING APPROXIMATELY 14 TYPE OG-4 FIXTURES IN CONNECTION WITH COUNTERPOISE INSTALLATION.

BY LETTER DATED NOVEMBER 15, 1968, INTERSTATE STATED THAT THE ERRORS IN ITS BID, NOTED ABOVE, WERE THE RESULT OF TYPOGRAPHICAL ERRORS MADE IN PREPARING ITS FINAL BID. INTERSTATE'S ORIGINAL WORKSHEETS SUBMITTED THEREAFTER ON NOVEMBER 18, 1968, FOR CONSIDERATION BY THE CONTRACTING OFFICER, SHOWED THAT FOR ITEM 45 THAT BIDDER HAD SUBMITTED A CORRECT UNIT PRICE BUT AN INCORRECT EXTENSION; FOR ITEM 46 THE UNIT PRICE AND COMPUTED EXTENSION WAS ACTUALLY FOR ITEM 47; FOR ITEM 47 THE UNIT PRICE USED WAS MEANT FOR ITEM 48 AND FOR ITEM 48 THE UNIT PRICE USED WAS MEANT FOR ITEM 49. AS STATED ABOVE, ITEM 49 WAS THEN INADVERTENTLY LEFT BLANK. USING INTERSTATE'S INTENDED BID PRICES, ITS TOTAL BID WAS COMPUTED TO BE $195,856.50.

IT WAS SUBSEQUENTLY DETERMINED THAT THE EVIDENCE PRESENTED PROPERLY ESTABLISHED THE EXISTENCE OF A MISTAKE IN INTERSTATE'S BID BUT WAS INSUFFICIENT TO SUPPORT CORRECTION THEREOF. THE CONTRACTING OFFICER WAS ACCORDINGLY ADVISED ON NOVEMBER 25, 1968, BY THE COGNIZANT BUREAU OFFICIAL, TO DISREGARD INTERSTATE'S BID. PREDICATED UPON SUCH ADVICE, AWARD WAS MADE SHORTLY THEREAFTER TO WIRE INSTALLATION CONTRACTORS. HOWEVER, BECAUSE OF YOUR PROTEST, WE ARE ADVISED THAT A NOTICE TO PROCEED WILL NOT BE ISSUED PENDING OUR DECISION IN THE MATTER.

THE FACESHEET OF SF 21, BID FORM (CONSTRUCTION CONTRACT), PROVIDED THAT BIDDERS PROPOSE TO PERFORM THE WORK "FOR THE FOLLOWING AMOUNT/S) AS LISTED ON THE ATTACHED SCHEDULE OF DESIGNATIONS AND BID PRICES.' ALSO, SUBPARAGRAPH B OF ARTICLE 2-119, OF THE SUPPLEMENTAL GENERAL PROVISIONS, PART II, ADVISED PROSPECTIVE BIDDERS THAT "PAYMENT AT THE UNIT CONTRACT PRICES SHALL BE COMPENSATION IN FULL FOR ALL COSTS INCURRED BY THE CONTRACTOR * * *.' THE OMISSION, THEREFORE, OF UNIT PRICE IN ARTICLE 49 OF THE BID SCHEDULE RENDERED INTERSTATE'S BID IN NONCOMPLIANCE WITH THE UNDERSCORED PORTION OF CLAUSE 10 (A) OF SF 22, SUPRA, AND INELIGIBLE FOR CONSIDERATION FOR AWARD. IN OUR DECISION AT 38 COMP. GEN. 819, CITING B- 134931, JANUARY 30, 1958, WE REITERATED THE RULE THAT:

"THE QUESTION AS TO WHETHER A BID IS RESPONSIVE TO THE INVITATION IS FOR DETERMINATION UPON THE BASIS OF THE BID AS SUBMITTED AND IT IS NOT BE LIVED THAT IT WOULD BE PROPER TO CONSIDER THE REASON FOR THE UNRESPONSIVENESS, WHETHER DUE TO MISTAKE OR OTHERWISE.'

WE CONCLUDED THERE THAT A NONRESPONSIVE BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, AND TO PERMIT THE BIDDER TO MAKE THE BID RESPONSIVE BY CHANGING OR ADDING TO A MATERIAL PART OF THE BID ON THE BASIS OF A MISTAKE ALLEGED AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. WE THINK THAT THE RULE PROHIBITING BIDDERS "TWO BITES AT THE APPLE" IS FOR APPLICATION HERE. SEE 38 COMP. GEN. 532, 535. RESTATED, AN ALLEGATION OF ERROR IS PROPER FOR CONSIDERATION ONLY IN CASES WHERE THE BID IS OTHERWISE RESPONSIVE TO THE INVITATION, AND ANY OTHER ACTION LOOKING TO CORRECTION OF SUCH A BID WOULD SERVE TO UNDERMINE THE INTEGRITY OF THE BIDDING SYSTEM DESPITE THE POSSIBILITY OF AN IMMEDIATE ECONOMIC ADVANTAGE WHICH MIGHT ACCRUE TO THE GOVERNMENT.