B-165880, FEB. 24, 1969

B-165880, FEB. 24, 1969

TO MAYFAIR CLEANING-LAUNDRY:

REFERENCE IS MADE TO YOUR PROTEST (REFERRED TO OUR OFFICE ON DECEMBER 23, 1968, BY SENATOR RUSSELL B. LONG AND CONGRESSMAN JOE D. WAGGONNER, JR.) AGAINST THE REJECTION OF YOUR BID AND THE CONTRACT AWARD TO THE PLAINS LAUNDRY COMPANY UNDER INVITATION FOR BIDS NO. F16602-69-B-0875, ISSUED ON OCTOBER 18, 1968, BY THE PROCUREMENT DIVISION, BARKSDALE AIR FORCE BASE, LOUISIANA.

THE INVITATION SOLICITED BIDS FOR FURNISHING LAUNDRY AND DRY CLEANING SERVICES FOR THE BASE HOSPITAL AT BARKSDALE AIR FORCE BASE DURING 1969. FOUR BIDS WERE RECEIVED FOR THE ITEMS OF WORK DESCRIBED UNDER LOTS I AND II OF THE INVITATION. ON BID OPENING DATE OF NOVEMBER 19, 1968, THE APPARENT LOW BID FOR THESE LOTS WAS SUBMITTED BY THE PLAINS LAUNDRY COMPANY IN THE AMOUNT OF $67,739.88, LESS ONE HALF OF 1 PERCENT, 20-DAY PROMPT PAYMENT DISCOUNT, FOR A NET BID PRICE OF $67,401.18. MAYFAIR BID A PRICE OF $72,814.61 FOR THESE TWO LOTS, LESS 10 PERCENT, 10-DAY PROMPT PAYMENT DISCOUNT, WHICH, IF PROPERLY FOR CONSIDERATION IN THE EVALUATION OF BIDS, WOULD REDUCE MAYFAIR'S NET BID TO $65,533.15. THIS IS THE PRIME ISSUE UPON WHICH YOUR PROTEST IS BASED.

PARAGRAPH 9 OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS PROVIDED AS FOLLOWS WITH RESPECT TO PROMPT PAYMENT DISCOUNTS OFFERED BY BIDDERS:

"9. DISCOUNTS. (A) NOTWITHSTANDING THE FACT THAT A BLANK IS PROVIDED FOR A TEN (10) DAY DISCOUNT, PROMPT PAYMENT DISCOUNTS OFFERED FOR PAYMENT WITHIN LESS THAN TWENTY (20) CALENDAR DAYS WILL NOT BE CONSIDERED IN EVALUATING OFFERS FOR AWARD, UNLESS OTHERWISE SPECIFIED IN THE SOLICITATION. HOWEVER, OFFERED DISCOUNTS OF LESS THAN 20 DAYS WILL BE TAKEN IF PAYMENT IS MADE WITHIN THE DISCOUNT PERIOD, EVEN THOUGH NOT CONSIDERED IN THE EVALUATION OF OFFERS.'

NOTWITHSTANDING THIS WARNING, YOU INSERTED "10" IN THE BLANK SPACE OF ITEM 16 ON THE FACESHEET OF THE BID, WHICH READS AS FOLLOWS:

"16.DISCOUNT FOR PROMPT PAYMENT

------PERCENT 10 CALENDAR DAYS; " SINCE THE CONSIDERATION OF PROMPT PAYMENT DISCOUNTS OF LESS THAN 20 DAYS WAS NOT OTHERWISE SPECIFIED IN THE INVITATION, ALL BIDDERS WERE ENTITLED TO RELY UPON CONDITION NO. 9 AND THE 10-DAY DISCOUNT OFFERED ON THE FACE OF YOUR BID COULD NOT BE CONSIDERED IN FAIRNESS TO OTHER BIDDERS; OTHERWISE, BIDDERS COULD NOT COMPETE ON AN EQUAL BASIS ON WHICH BIDS WOULD BE EVALUATED. SEE B-162451, DECEMBER 19, 1967; AND B-164712, AUGUST 8, 1968. CONSEQUENTLY, YOUR BID HAD TO BE EVALUATED AT $72,814.61, WITHOUT DISCOUNT, AND THE CONTRACTING OFFICER DETERMINED THAT YOU HAD NOT SUBMITTED THE LOW BID ELIGIBLE FOR AWARD.

AFTER BID OPENING AND UPON BEING ADVISED OF THE APPLICATION OF PARAGRAPH 9, QUOTED ABOVE, YOU ALLEGED A MISTAKE IN YOUR BID AS SUBMITTED BY A LETTER OF NOVEMBER 19, 1968, STATING THAT YOU INTENDED TO OFFER A 10- PERCENT DISCOUNT BUT, THROUGH CLERICAL ERROR, INSERTED THE DISCOUNT IN THE 10-DAY PAYMENT BLOCK RATHER THAN IN THE 20-DAY OR 30-DAY PAYMENT DISCOUNT BLOCK AS INTENDED. IN A NOTARIZED STATEMENT ACCOMPANYING YOUR REQUEST TO MODIFY YOUR BID YOU STATED THAT YOUR WORKSHEETS IN CONNECTION WITH THE INVITATION HAD BEEN DESTROYED. THEREAFTER, THE FILE IN YOUR CASE WAS PROCESSED TO THE STAFF JUDGE ADVOCATE AT HEADQUARTERS AIR FORCE LOGISTICS COMMAND FOR DECISION SINCE HIS OFFICE HAS THE AUTHORITY TO DECIDE SUCH MATTERS BY ASPR 2-406.3 (B) (3) FOR THE AIR FORCE. THE STAFF JUDGE ADVOCATE ON NOVEMBER 29, 1968, MADE THE FOLLOWING DETERMINATION PURSUANT TO ASPR 2-406.3 (A) (4):

"THAT CLEAR AND CONVINCING EVIDENCE HAS NOT BEEN PRESENTED ESTABLISHING THE EXISTENCE OF A MISTAKE OR THE ALLEGED INTENDED BID TO IFB F16602-69-B- 0875.

"THAT MAYFAIR CLEANING LAUNDRY OF MINDEN, LOUISIANA, SHOULD NOT BE PERMITTED TO MODIFY THE BID.

"THAT THE BID OF MAYFAIR CLEANING LAUNDRY SHOULD BE CONSIDERED FOR AWARD AS SUBMITTED WITHOUT CHANGE.' THEREAFTER, THE CONTRACT WAS AWARDED TO PLAINS LAUNDRY COMPANY, AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER, ON DECEMBER 9, 1968.

WE HAVE REVIEWED THE EVIDENCE SUBMITTED IN SUPPORT OF YOUR CLAIM OF ERROR AND WE FIND NO BASIS TO DISAGREE WITH THE ADMINISTRATIVE DETERMINATION THAT THE EVIDENCE DOES NOT CLEARLY AND CONVINCINGLY ESTABLISH THE FACT THAT A MISTAKE WAS MADE.

MOREOVER, TO HAVE PERMITTED MODIFICATION OF YOUR BID AFTER OPENING WOULD HAVE RESULTED IN DISPLACING AN OTHERWISE LOW BIDDER. IN THIS CONNECTION, OUR OFFICE HAS CONSISTENTLY HELD THAT TO PERMIT A BIDDER AFTER OPENING OF BIDS TO CORRECT AN ERROR, NOT OBVIOUS ON THE FACE OF THE BID, SO THAT THE CORRECTED BID BECOMES THE LOW BID DISPLACING AN OTHERWISE LOW BID, WOULD BE PREJUDICIAL TO THE RIGHTS OF THE OTHER BIDDERS AND CONTRARY TO THE INTEREST OF THE GOVERNMENT IN THE PRESERVATION AND MAINTENANCE OF THE COMPETITIVE BIDDING SYSTEM. 37 COMP. GEN. 210; 41 ID. 469, 472.