B-167262, AUGUST 20, 1969, 49 COMP. GEN. 107

B-167262: Aug 20, 1969

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THE REJECTION OF THE LOW BID WAS PROPER WHERE THE BIDDER REFUSED CORRECTION OF A MISTAKE IN THE SUBTOTAL OF FOUR SUBITEMS CORRECTLY EXTENDED THAT WOULD INCREASE THE SUBTOTAL. THE REDUCTION IN THE SUBITEM PRICE WAS ESSENTIAL FOR THE LOW BID TO REMAIN LOW. REJECTION OF THE ERRONEOUS BID WAS REQUIRED TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM. A NUMBER OF WHICH WERE COMPRISED OF TWO OR MORE SUBITEMS. NO SPACES WERE INCLUDED FOR ITEM TOTALS AS SUCH WHERE ITEMS WERE DIVIDED INTO SUBITEMS. SPACES WERE INCLUDED FOR SUBTOTALS OF GROUPS OF ITEMS AND SUBITEMS. " AND FOLLOWING ITEM 10 WAS A LINE "SUBTOTAL WATER SYSTEM". WERE HEADED "WASTE WATER SUMPS & HYDRANTS" AND FOLLOWED BY A LINE "SUBTOTAL WASTE WATER SUMPS & HYDRANTS".

B-167262, AUGUST 20, 1969, 49 COMP. GEN. 107

BIDS -- MISTAKES -- SUBITEMS UNDER AN INVITATION FOR BIDS WHICH LISTED 30 ITEMS, SOME COMPRISING TWO OR MORE SUBITEMS, BUT WHICH DID NOT PROVIDE THAT EITHER UNIT PRICES OR THE AGGREGATE BID PRICE WOULD GOVERN, THE REJECTION OF THE LOW BID WAS PROPER WHERE THE BIDDER REFUSED CORRECTION OF A MISTAKE IN THE SUBTOTAL OF FOUR SUBITEMS CORRECTLY EXTENDED THAT WOULD INCREASE THE SUBTOTAL, BECAUSE THE RESULTANT INCREASE IN THE AGGREGATE BID PRICE WOULD DISPLACE THE LOW BID, BUT CLAIMED ERROR IN A SUBITEM COMPUTATION AND ENTITLEMENT TO THE CONTRACT AWARD ON THE BASIS OF THE ORIGINALLY SUBMITTED TOTAL BASE BID PRICE. DISCREPANCY HAVING OCCURRED BETWEEN THE SUBITEM AND EXTENDED PRICE, THE REDUCTION IN THE SUBITEM PRICE WAS ESSENTIAL FOR THE LOW BID TO REMAIN LOW, AND ABSENCE EVIDENCE OF THE INTENDED SUBITEM PRICE AS REQUIRED BY SECTION 1-2.406-3(A)(2) OF THE FEDERAL PROCUREMENT REGULATIONS, REJECTION OF THE ERRONEOUS BID WAS REQUIRED TO PRESERVE THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

TO CAKE, JAUREGUY, HARDY, BUTTLER & MCEWEN, AUGUST 20, 1969:

WE REFER TO YOUR PROTEST, BY TELEGRAM OF JUNE 18, 1969, AND SUPPLEMENTAL CORRESPONDENCE, ON BEHALF OF GLENN W. SHOOK, INC. (SHOOK), AGAINST THE AWARD BY THE DEPARTMENT OF AGRICULTURE OF A CONTRACT TO MANN CONSTRUCTION CO., INC. (MANN), FOR CONSTRUCTION OF DIAMOND LAKE RECREATION AREA WATER AND SEWER SYSTEMS AND BUILDINGS--PHASE II, UMPQUA NATIONAL FOREST, DOUGLAS COUNTY, OREGON, UNDER INVITATION FOR BIDS (IFB) R6-69-151, ISSUED APRIL 30, 1969.

THE IFB LISTED 30 ITEMS, A NUMBER OF WHICH WERE COMPRISED OF TWO OR MORE SUBITEMS, WITH SPACES FOR INSERTION OF PRICES FOR EACH SUBITEM. NO SPACES WERE INCLUDED FOR ITEM TOTALS AS SUCH WHERE ITEMS WERE DIVIDED INTO SUBITEMS, BUT SPACES WERE INCLUDED FOR SUBTOTALS OF GROUPS OF ITEMS AND SUBITEMS, AS FOLLOWS:

ITEMS 1 THROUGH 10 APPEARED UNDER THE HEADING "WATER SUPPLY & DISTRIBUTION SYSTEM," AND FOLLOWING ITEM 10 WAS A LINE "SUBTOTAL WATER SYSTEM"; ITEMS 11, 12 AND 13, WERE HEADED "WASTE WATER SUMPS & HYDRANTS" AND FOLLOWED BY A LINE "SUBTOTAL WASTE WATER SUMPS & HYDRANTS"; ITEMS 14 THROUGH 23 WERE HEADED "SEWER SYSTEM" AND FOLLOWED BY A LINE "SUBTOTAL SEWER SYSTEM"; ITEMS 24, 25 AND 26 WERE HEADED "ELECTRICAL" AND FOLLOWED BY A LINE "SUBTOTAL ELECTRICAL"; ITEM 27, CONSISTING OF FOUR SUBITEMS, WAS HEADED "BUILDINGS" AND FOLLOWED BY A LINE "SUBTOTAL BUILDINGS," THESE BEING NO OTHER BUILDING ITEMS. IMMEDIATELY BENEATH THE BUILDING SUBTOTAL LINE WAS A LINE "TOTAL BASE BID"; ITEMS 28, 29, AND 30, EACH CONSISTING OF SEVERAL SUBITEMS, WERE ADDITIVE ITEMS, AND FOLLOWING THEM WAS A LINE "SUB- TOTAL ADD. ITEMS," WITH A FINAL LINE "GRAND TOTAL" BELOW IT.

FOLLOWING THE ABOVE-DESCRIBED SCHEDULE THERE APPEARED A STATEMENT OF THE TERMS OF AWARD, READING IN PART AS FOLLOWS:

ITEMS 28, 29, AND 30 ARE ADDITIVE ITEMS. THE GOVERNMENT MAY AWARD ANY NUMBER OF THESE SUBITEMS IN ADDITION TO THE "BASE BID." THE AWARD WILL BE MADE TO THE RESPONSIBLE BIDDER OFFERING THE LOWEST TOTAL PRICE FOR THE "BASE BID," PLUS THOSE ADDITIVE SUBITEMS THE GOVERNMENT CAN AWARD, AVAILABLE FUNDS CONSIDERED.

YOUR PROTEST IS CONCERNED ONLY WITH ITEM 27, WHICH READS AS FOLLOWS:

UNIT

ITEM ESTIMATED BID AMOUNT

NO. DESCRIPTION QUANTITY UNIT PRICE BID

27 BUILDINGS; DIAMOND LAKE

C.G. AND INFORMATION

CENTER:

A. COMFORT STATION GEN- 1 EACH $ $

ERATOR BLDG., PLAN NO.

960 (INCLUDES ENGINE-

GENERATOR AND ALL

APPURTENANCES).

B. COMFORT STATION PLAN 6 EACH $ $

NO. 1106-A (SITES

3-1, 3-7, 5-12, 6-1,

6-3A, 6-11).

C. COMFORT STATION PLAN 4 EACH $ $

NO. 1110-A (SITES

3-3, 5-1, 5-6, 5-9).

D. COMFORT STATION PLAN 1 EACH $ $

NO. 1110-A W/DRY

TRANSFORMER, SITE 4-5.

SUBTOTAL BUILDINGS$ $

ON JUNE 4, 1969, THE FIVE BIDS RECEIVED IN RESPONSE TO THE IFB WERE OPENED. THE TOTAL BASE BIDS, AS AMENDED BY TIMELY MODIFICATIONS, RANGED IN THE FOLLOWING ORDER:

BIDDER PRICE

GLENN W. SHOOK $972,636.95

MANN CONSTRUCTION CO 989,273.50

D. G. QUINTON CO., INC 1,156,452.30

TEEPLES & THATCHER CONTRACTORS, INC 1,197,729.00

WILDISH CONSTRUCTION CO 1,302,174.09

ANALYSIS OF SHOOK'S BID REVEALED THAT WHILE SHOOK HAD MADE PROPER EXTENSIONS OF THE UNIT PRICES QUOTED ON THE FOUR SUBITEMS UNDER ITEM 27 (I.E., THE AMOUNT BID COLUMN REFLECTED THE PRODUCT OF THE UNIT PRICES MULTIPLIED BY THE NUMBER OF UNITS REQUIRED), THE ACTUAL TOTAL OF THE EXTENDED SUBITEM PRICES WAS $157,540, OR $34,200 IN EXCESS OF THE AMOUNT OF $123,340 ENTERED BY SHOOK FOR ITEM 27 OPPOSITE "SUBTOTAL BUILDINGS." FURTHER, THE AMOUNT OF $972,636.95 QUOTED BY SHOOK AS THE BASE BID PRICE COULD BE RECONCILED ONLY BY USING THE LOWER AMOUNT ENTERED BY SHOOK AS THE TOTAL PRICE OF ITEM 27.

ON THE BASIS THAT THE UNIT (SUBITEM) PRICES LISTED BY SHOOK REPRESENTED SHOOK'S INTENDED BID, THE CONTRACTING OFFICER NOTIFIED SHOOK THAT THE TOTAL BID WOULD BE ADJUSTED IN ACCORDANCE WITH THE UNIT PRICES TO THE TOTAL OF $1,006,836.95, AN ACTION WHICH WOULD RESULT IN THE REPLACEMENT OF SHOOK BY MANN AS THE LOWEST BIDDER. IN A REPLY BY LETTER DATED JUNE 6, SHOOK PROTESTED THE ADJUSTMENT, STATING, AMONG OTHER THINGS, THAT ITS INTENDED PRICE FOR SUBITEM 27A WAS $29,940; THAT IT HAD MADE A MISTAKE IN COPYING THE PRICE OF THE SUBITEM AS $64,140 INSTEAD OF $29,940; THAT SINCE AWARD WAS TO BE MADE ON THE TOTAL BASE BID, UNIT PRICES DID NOT GOVERN; THAT THE PURPOSE OF THE UNIT PRICES WAS FOR COMPUTATION OF PROGRESS PAYMENTS; THAT SHOOK INTENDED ITS TOTAL PRICES TO GOVERN, NOT THE UNIT PRICES; AND THAT 42 COMP. GEN. 746 (JUNE 27, 1963) AND 38 COMP. GEN. 550 (FEBRUARY 13, 1959) STAND FOR THE PROPOSITION THAT A CONTRACT WILL BE AWARDED ON THE TOTAL PRICE BID, EVEN THOUGH THE TOTAL OF THE UNIT PRICES IS GREATER THAN SUCH TOTAL BID PRICE, WHERE THE IFB HAS BEEN ON A TOTAL PRICE BASIS AND THE BIDDER CONFIRMS ITS AGGREGATE OR TOTAL PRICE AS CORRECT.

AT THIS POINT, IT MAY BE NOTED THAT BOTH THE CONTRACTING OFFICER AND SHOOK HAVE REFERRED TO THE PRICE OF SUBITEM 27A AS THE "UNIT PRICE," AND BOTH PARTIES HAVE MADE REFERENCE TO THE "UNIT PRICE" RULE, STATED IN SUPPLY CONTRACTS IN PARAGRAPH 1, STANDARD FORM 33, UNDER WHICH UNIT PRICES GOVERN IN THE EVENT OF AN ERROR IN EXTENSION OF PRICE. SINCE THERE IS NO DISCREPANCY BETWEEN THE UNIT AND EXTENDED PRICES QUOTED BY SHOOK FOR SUBITEM 27A, CLEARLY SUCH UNIT PRICE RULE HAS NO APPLICATION TO THIS CASE. RATHER, THE ISSUE IN THIS CASE IS TO WHAT EXTENT, IF ANY, SHOULD SUBITEM PRICES BE CONSIDERED IN THE EVENT THE TOTAL ITEM PRICE IS NOT RECONCILABLE WITH THE ACTUAL TOTAL OF THE SUBITEM PRICES AND THE TOTAL BID PRICE IN TURN IS NOT RECONCILABLE WITH THE ARITHMETICAL TOTAL OF THE ITEMS. FOR CHARITY, THEREFORE, WE SHALL USE THE TERM "SUBITEM PRICE" WITH RESPECT TO THE AMOUNT SHOWN IN SHOOK'S BID FOR THE SUBITEMS WHICH COMPRISE ITEM 27 AND "ITEM PRICE" FOR THE AMOUNT SHOWN FOR THE TOTAL ITEM.

IN SUPPORT OF ITS CLAIM OF ERROR, SHOOK FURNISHED TO THE CONTRACTING OFFICER COPIES OF WORKSHEETS GIVING A BREAKDOWN OF THE ELEMENTS OF SUBITEM 27A AND SHOWING A TOTAL PRICE OF $29,940 FOR THE SUBITEM, TOGETHER WITH A COMPUTATION OF SHOOK'S BID FOR THE ENTIRE PROJECT SHOWING A TOTAL BASE BID OF $972,636.95 FOR THE 27 BASE BID ITEMS. THE GOVERNMENT'S ESTIMATE FOR SUBITEM 27A WAS $48,000, AND THE ABSTRACT OF BIDS SHOWS THAT THE COMPETING BIDS LISTED PRICES OF $49,680, $62,000, $63,267, AND $63,618 FOR THE SAME SUBITEM.

THE CONTRACTING OFFICER CONCLUDED THAT THE DISCREPANCIES IN SHOOK'S BID WERE SUFFICIENT TO INDICATE THAT A MISTAKE HAD BEEN MADE BY SHOOK. HOWEVER, SINCE CORRECTION OF THE MISTAKE WAS ESSENTIAL TO SHOOK'S REMAINING THE LOWEST BIDDER AND SINCE THE BID ITSELF DID NOT EVIDENCE THE INTENDED PRICE, AS IS REQUIRED BY FEDERAL PROCUREMENT REGULATION (FPR) 1- 2.406-3(A)(2) IN ORDER TO JUSTIFY CORRECTION IN SUCH CIRCUMSTANCES, THE CONTRACTING OFFICER CONCLUDED THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM COULD BE PRESERVED ONLY BY REJECTING SHOOK'S BID. ACCORDINGLY, SHOOK WAS VERBALLY NOTIFIED ON JUNE 17 THAT ITS BID WAS REJECTED AND THAT AWARD WAS BEING MADE TO MANN, AND A CONFIRMING NOTICE WAS TRANSMITTED BY LETTER OF JUNE 18.

IN YOUR PROTEST TO OUR OFFICE, WHICH INCORPORATES THE PRIOR PROTEST MADE BY SHOOK, YOU CONTEND THAT SINCE ONLY AN AGGREGATE AWARD WAS CONTEMPLATED BY THE IFB AND SINCE SHOOK HAS MADE NO CLAIM OF ERROR IN ITS AGGREGATE BID, THE AGGREGATE AMOUNT QUOTED BY SHOOK GOVERNS THE AMOUNT OF THE BID. IN THIS CONNECTION, YOU REFER TO 42 COMP. GEN. 746 (1963), WHICH SHOOK ALSO CITED, AS STANDING FOR THE PROPOSITION THAT BIDS ON AN "ALL OR NONE" BASIS MUST BE ACCEPTED IF THEY ARE FOR THE LOWEST AGGREGATE PRICE. FURTHER, YOU STATE THAT NEITHER THE INVITATION IN 42 COMP. GEN. 746 NOR THE INVITATION IN THE INSTANT PROCUREMENT REQUIRES THAT THE AGGREGATE BID EQUAL THE TOTAL OF THE INDIVIDUAL ITEM BIDS. IN ADDITION, YOU POINT OUT THAT THERE IS NO LANGUAGE IN THE IFB COMMON TO UNIT PRICE BIDS (AS CONSTRASTED WITH AGGREGATE OR LUMP-SUM BIDS) SUCH AS "UNIT PRICES SHALL GOVERN."

YOU ALSO CONTEND THAT 43 COMP. GEN. 579 (1964), AFFIRMED AT 43 ID. 817 (1964), WHICH THE CONTRACTING OFFICER HAS CITED IN SUPPORT OF HIS ACTION, DOES NOT APPLY TO THIS PROCUREMENT. IN THE PROCUREMENT WHICH WAS CONSIDERED AT 43 COMP. GEN. 579 THE IFB PROVIDED THAT ALL EXTENSIONS OF UNIT PRICES WOULD BE VERIFIED BY THE GOVERNMENT AND IN CASE OF VARIATION BETWEEN THE UNIT PRICE AND THE EXTENSION THE UNIT PRICE WOULD BE CONSIDERED AS THE BID. THE BID WHICH QUOTED THE LOWEST TOTAL PRICE INCLUDED SEVERAL PRICE EXTENSIONS FOR VARIOUS ITEMS WHICH DID NOT CORRESPOND TO THE UNIT PRICES AND QUANTITIES INVOLVED. CORRECTION OF SUCH EXTENDED PRICES AS PROVIDED IN THE INVITATION RESULTED IN HIGHER ITEM PRICES AND IN HIGHER TOTALS FOR EACH OF THE ALTERNATE BASE BIDS THAN WERE QUOTED BY THE BIDDER. THE BIDDER OFFERED AN EXPLANATION AFTER BID OPENING THAT THE TOTAL PRICE STATED IN THE BID FOR EACH ALTERNATE REFLECTED A LUMP -SUM DEDUCTION FROM THE ACTUAL TOTAL OF THE ITEMS, BUT THE BID DID NOT INCLUDE ANY SUCH INFORMATION. ON THE BASIS, THEREFORE, THAT THE BID WAS AMBIGUOUS AND THAT THE AMBIGUITY WAS CREATED BY THE BIDDER, WE UPHELD THE REJECTION OF THE BID. IN AFFIRMING OUR CONCLUSION IN 43 COMP. GEN. 817, WE MADE THE FOLLOWING STATEMENTS AT PAGE 820:

IN OUR VIEW, IT IS AN ESSENTIAL OF A VALID BID OR OFFER THAT IT BE SUFFICIENTLY DEFINITE TO ENABLE THE OFFEREE TO ACCEPT IT WITH CONFIDENCE THAT THE CONTRACT SO MADE CAN BE INTERPRETED AND ENFORCED WITHOUT RESORT TO EXTRANEOUS EVIDENCE. IN THE CASE OF PRIVATE PARTIES, AN AMBIGOUS OFFER MAY OF COURSE BE CLARIFIED OR EVEN CHANGED BY FURTHER COMMUNICATIONS WHICH MAY THEN BECOME A PART OF THE CONTRACT FINALLY REACHED. IN THE CASE OF THE GOVERNMENT, HOWEVER, WHERE THE CONTRACTING PROCESS IS GOVERNED BY THE STATUTORY AND REGULATORY PROVISIONS FOR FORMAL ADVERTISING AND COMPETITIVE BIDDING, WE BELIEVE THAT IT IS IMPROPER TO PERMIT A BIDDER TO CLARIFY OR EXPLAIN BY SUPPLEMENTARY STATEMENTS A BID WHICH, AS SUBMITTED, IN SO UNCLEAR IN ITS STATEMENT OF THE IMPORTANT ELEMENT OF PRICE AS TO LEAVE SUBSTANTIAL DOUBT AS TO THE RIGHTS AND OBLIGATIONS WHICH WOULD ARISE BY ACCEPTING IT. IN THE PECULIAR SITUATION HERE PRESENTED, WHERE A BID IS READILY SUSCEPTIBLE OF BEING INTERPRETED AS OFFERING EITHER ONE OF TWO PRICES SHOWN ON ITS FACE, ONE OF WHICH WOULD BE THE LOWEST BID WHILE THE OTHER WOULD NOT, WE BELIEVE THAT IT WOULD BE UNFAIR TO THE OTHER BIDDER OR BIDDERS AFFECTED TO PERMIT THE BIDDER WHO CREATED SUCH AMBIGUITY TO ELECT WHICH PRICE IT SHOULD ATTEMPT TO SUPPORT.

YOU URGE THAT THE FACTS OF THE INSTANT CASE DIFFER FROM THE FACTS CONSIDERED IN 43 COMP. GEN. 579. THE CURRENT IFB, YOU AGAIN STRESS, DOES NOT PROVIDE THAT UNIT PRICES GOVERN AND DOES NOT CONTAIN A UNIT PRICE SCHEDULE, AND THERE IS NOTHING IN THE IFB TO SUPPORT A CONCLUSION THAT UNIT PRICES ARE TO GOVERN. FURTHER, YOU STATE, THE CONTRACTOR IN THE INSTANT CASE DOES NOT AGREE TO PERFORM FOR THE UNIT PRICES STATED, THE ONLY PURPOSE OF WHICH IS FOR COMPUTATION OF PROGRESS PAYMENTS AND BID ANALYSIS. ACCORDINGLY, YOU CONTEND, AN AGGREGATE OR COMBINED PRICE BEING THE GOVERNING FACTOR IN MAKING AWARD UNDER THE IFB, THE CONVERSE OF THE REASONING IN 43 COMP. GEN. 579 IS APPLICABLE; THAT IS, "THE SUM OF THE INDIVIDUAL ITEMS WHICH DIFFER FROM THE 'BASE BID' WOULD BE CORRECTIBLE SO AS TO CONFORM TO THE STATED 'BASE BID'."

IN ADDITION, YOU TAKE ISSUE WITH THE VIEW STATED IN A DEPARTMENT OF AGRICULTURE LEGAL MEMORANDUM THAT THE GOVERNMENT COULD NOT ENFORCE AGAINST SHOOK ITS "BASE BID" AS SUBMITTED. IN THIS REGARD, YOU CLAIM THAT SINCE THE BASE BID WAS THE INDICATED BASIS FOR EVALUATION OF BIDS AND WAS NOT ALTERED BY SHOOK'S CLAIM OF MISTAKE IN SUBITEM 27A, THE BASE BID IS FOR CONSIDERATION AS ORIGINALLY SUBMITTED. CITING 39 COMP. GEN. 36 (1959), WHICH WAS AFFIRMED AT 39 ID. 405 (1959), YOU STATE, "THE COMPTROLLER GENERAL HAS HELD THAT WHEN BOTH PARTIES ARE AWARE OF THE ERROR WHEN AWARD WAS MADE, A VALID AND BINDING CONTRACT, PRESUMED TO EXPRESS THE UNDERSTANDING OF THE PARTIES IS CREATED."

THE DEPARTMENT OF AGRICULTURE ASSERTS THAT SHOOK'S BID SHOULD BE EVALUATED AT $1,006,836.95, THE TOTAL OF THE ITEM PRICES AS BASED ON THE SUBITEM PRICES. THE DEPARTMENT QUOTES, IN THIS REGARD, FROM 48 COMP. GEN. 748, MAY 14, 1969, AS FOLLOWS: THE CORRECTION OF MISTAKES IN BID HAS ALWAYS BEEN A VEXING PROBLEM. IT HAS BEEN ARGUED THAT BID CORRECTION AFTER BID OPENING AND DISCLOSURE OF PRICES QUOTED COMPROMISES THE INITEGRITY OF THE COMPETITIVE BIDDING SYSTEM, AND, TO SOME EXTENT AT LEAST, THIS IS TRUE. FOR THIS REASON, IT HAS BEEN ADVOCATED THAT THE GOVERNMENT SHOULD ADOPT A POLICY WHICH WOULD PERMIT CONTRACTORS TO WITHDRAW, BUT NOT TO CORRECT, ERRONEOUS BIDS. WE DO NOT AGREE COMPLETELY WITH THIS POSITION, SINCE WE BELIEVE THERE ARE CASES IN WHICH BID CORRECTION SHOULD BE PERMITTED. WE DO AGREE THAT REGARDLESS OF THE GOOD FAITH OF THE PARTY OR PARTIES INVOLVED, CORRECTION SHOULD BE DENIED IN ANY CASE IN WHICH THERE EXISTS ANY REASONABLE BASIS FOR ARGUMENT THAT PUBLIC CONFIDENCE IN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WOULD BE ADVERSELY AFFECTED THEREBY. THE PRESENT CASE, IT SEEMS TO US, FALLS IN THIS CATEGORY.

THE IFB IN THE INSTANT CASE CARRIED NO LANGUAGE TO THE EFFECT THAT THE AGGREGATE OR BASE BID PRICE WOULD GOVERN THE EVENT OF ITS VARIATION FROM THE ACTUAL TOTAL PRICE OF THE VARIOUS INDIVIDUAL ITEMS, NOR DID THE IFB INCLUDE ANY INFORMATION APPRISING BIDDERS THAT THE ITEM AND SUBITEM PRICES WERE REQUESTED ONLY FOR THE GOVERNMENT'S PURPOSE IN COMPUTING PROGRESS PAYMENTS UNDER THE CONTRACT. THE ACTUAL LANGUAGE OF THE BID SIGNED BY EACH BIDDER STATED A PROPOSAL TO PERFORM THE WORK DESCRIBED "FOR THE FOLLOWING AMOUNTS SHOWN ON THE ATTACHED SCHEDULE OF ITEMS." IN THE CIRCUMSTANCES, SUCH PROVISIONS CANNOT BE READ INTO THE IFB AND IT WAS INCUMBENT UPON EACH BIDDER TO CHECK THE EXTENDED PRICES FOR EACH SUBITEM AND GROUP OF ITEMS, TO VERIFY THE TOTALS FOR EACH GROUP COMPRISED OF TWO OR MORE ITEMS OR SUBITEMS, AND TO VERIFY THE TOTAL BASE BID, AND, IN THE EVENT A TOTAL ITEM PRICE DID NOT CORRESPOND TO THE ACTUAL TOTAL OF THE PARTICULAR SUBITEMS AND/OR THE BASE BID PRICE DID NOT CORRESPOND TO THE ACTUAL TOTAL OF THE ITEM PRICES, TO FURNISH WITH THE BID AN ADEQUATE EXPLANATION FOR THE PRICE VARIANCES). B-156145, MARCH 8, 1965.

SINCE SHOOK'S BID CONTAINED NOTHING TO INDICATE WHY THE ITEM 27 TOTAL PRICE DID NOT CORRESPOND TO THE ACTUAL TOTAL PRICE OF THE RELATED FOUR SUBITEMS, THE GOVERNMENT WAS UNABLE TO ASCERTAIN FROM THE BID ITSELF WHICH PRICE SHOOK INTENDED TO QUOTE ON ITEM 27. FURTHER, SINCE THE UNSUBSTANTIATED LOWER ITEM 27 PRICE WAS CARRIED OVER INTO SHOOK'S BASE BID PRICE, THE GOVERNMENT COULD NOT BE ASSURED UNDER THE BID AS SUBMITTED THAT SHOOK WOULD PERFORM AT THE STATED BASE BID PRICE. ACCORDINGLY, SHOOK'S BID, IN OUR OPINION, COMES SQUARELY WITHIN THE PURVIEW OF 43 COMP. GEN. 579 AND 817 AND B-156145, MARCH 8, 1965, AND IS AN AMBIGUOUS BID WHICH MAY NOT BE CONSIDERED FOR AWARD. SEE, ALSO, 49 COMP. GEN. 12, JULY 3, 1969.

OUR DECISION AT 42 COMP. GEN. 746 (1963) IS NOT APPLICABLE HERE SINCE THE BIDDER IN THAT CASE VERIFIED THE AGGREGATE BID BEFORE ANY OTHER BID WAS OPENED, AND IT IS TO BE NOTED THAT THERE WAS NO MISTAKE IN THE ITEM PRICES, EACH OF WHICH WAS COMPRISED OF TWO OR MORE SUBITEMS. FURTHER, IT IS TO BE BORNE IN MIND THAT EVEN IF THE BID IN 42 COMP. GEN. 746 HAD BEEN EVALUATED ON THE BASIS OF THE SEPARATE ITEM PRICES, THE TOTAL PRICE STILL WOULD HAVE BEEN LOWER THAN THE NEXT BID, A FACTOR WHICH IS NOT PRESENT IN THIS CASE. SIMILARLY, 38 COMP. GEN. 550 (1959) DOES NOT APPLY, THERE BEING NO QUESTION OF ANY AMBIGUITY OR MISTAKE IN BIDS IN THAT CASE CREATING DOUBT AS TO THE INTENDED BIDS.

WITH REGARD TO 39 COMP. GEN. 36, WHERE THE BIDDER ELECTED TO ABSORB AN ERROR IN ITS BID COVERING THE COST OF AN OMITTED ITEM, WE DIRECT YOUR ATTENTION TO THE FACT THAT IN THAT CASE THERE WAS NO AMBIGUITY IN THE BID AND IT WOULD HAVE BEEN LOWEST WITH OR WITHOUT CORRECTION OF THE PARTICULAR MISTAKE; THEREFORE, ACCEPTANCE OF THE BID AFTER WAIVER OF THE MISTAKE BY THE BIDDER DID NOT OPERATE TO THE PREJUDICE OF ANY OTHER BIDDER AND BOUND THE BIDDER TO PERFORM AT THE ORIGINAL BID PRICE.

IT MAY ALSO BE OBSERVED THAT DECISIONS DEALING WITH "ALL OR NONE" BIDS ARE NOT APPLICABLE, SINCE BIDS PROPERLY CLASSIFIABLE IN THAT CATEGORY INVOLVE SITUATIONS WHERE AWARDS OF DIFFERENT ITEMS MAY BE MADE TO DIFFERENT BIDDERS AND THE "ALL OR NONE" BID IS CONDITIONED UPON AWARD OF ALL ITEMS TO THE ONE BIDDER.

AS TO YOUR COMPLAINT THAT THE PROCURING ACTIVITY DID NOT RESOLVE SHOOK'S PROTEST BEFORE AWARD TO MANN, THEREBY DEPRIVING SHOOK OF AN OPPORTUNITY TO PURSUE A PREAWARD PROTEST WITH OUR OFFICE, WE NOTE THAT THE PROTEST WHICH SHOOK FILED WITH THE CONTRACTING OFFICER DID NOT CONTAIN ANY REQUEST THAT THE MATTER BE FORWARDED TO OUR OFFICE FOR CONSIDERATION IN THE EVENT OF DENIAL BY THE CONTRACTING OFFICER. IN THE CIRCUMSTANCES, THE CONTRACTING AGENCY PROPERLY COULD HAVE MADE A DETERMINATION WITHOUT REFERENCE OF THE MATTER OF OUR OFFICE, AS PERMITTED BY FPR 1-2.407-8(B)(2). SEE ALSO B- 125189, OCTOBER 3, 1955, RELATING TO ADMINISTRATIVE ACTION BY THE DEPARTMENT OF AGRICULTURE IN MISTAKE IN BID CASES, AND 46 COMP. GEN. 307 (1966) CONSTRUING SIMILAR BID PROTEST PROVISIONS IN THE ARMED SERVICES PROCUREMENT REGULATION. FURTHER, THE RECORD MADE AVAILABLE TO OUR OFFICE BY THE DEPARTMENT OF AGRICULTURE INDICATES THAT NOTICE OF THE AWARD TO MANN WAS GIVEN BY THE FOREST SERVICE NOT ONLY TO SHOOK BUT TO YOUR MR. ROBERT RANKIN BY TELEPHONE ON JUNE 17, 1969, THE DATE THE AWARD WAS MADE, AND WAS CONFIRMED BY WRITTEN NOTICE OF JUNE 18, THE DATE OF YOUR PROTEST TO OUR OFFICE, WHICH WE DID NOT RECEIVE UNTIL JUNE 19. ACCORDINGLY, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTING OFFICER DID NOT COMPLY WITH THE PROCUREMENT REGULATIONS IN THIS RESPECT.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED.