B-167303, JUL. 18, 1969

B-167303: Jul 18, 1969

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SINCE IT COULD NOT BE DETERMINED FROM FACE OF BID THAT UNIT PRICE OF $88 WAS OBVIOUSLY INTENDED PRICE CORRECTION WAS NOT PERMITTED. ESQUIRE: REFERENCE IS MADE TO YOUR LETTERS OF JUNE 20. ALL OF THE ITEMS EXCEPT ONE (MAINTENANCE OF HIGHWAY TRAFFIC) WERE BASED ON ESTIMATED QUANTITIES AND BIDDERS WERE TO QUOTE UNIT PRICES AND TOTAL AMOUNTS FOR THE VARIOUS ITEMS. THREE BIDS WERE RECEIVED AND OPENED ON JUNE 11. THE TOTAL BID PRICES PUBLICLY READ WERE AS FOLLOWS: 1. IT WAS NOTED THAT FOR ITEM NO. 306 004. CURTIN AND JOHNSON'S UNIT BID PRICE WAS $188. THE EXTENDED PRICE BASED ON THIS UNIT PRICE WAS $47. CURTIN AND JOHNSON WAS IMMEDIATELY NOTIFIED AND IN TURN. CLAIMED THAT ITS INTENDED UNIT PRICE WAS $88.

B-167303, JUL. 18, 1969

BID PROTEST - MISTAKE IN BID DECISION DENYING PROTEST OF CURTIN AND JOHNSON, INC., SECOND LOW BIDDER FOR REPAIR WORK ON WASHINGTON CHANNEL BRIDGE. PROTESTANT ASKS THAT ITS BID BE EVALUATED ON BASIS OF CORRECTED UNIT PRICE RATHER THAN TOTAL EXTENDED PRICE. HOWEVER, SINCE IT COULD NOT BE DETERMINED FROM FACE OF BID THAT UNIT PRICE OF $88 WAS OBVIOUSLY INTENDED PRICE CORRECTION WAS NOT PERMITTED. SEE B-166795, JULY 3, 1969.

TO ALEXANDER BOSKOFF, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 20, JULY 3 AND 14, 1969, PROTESTING ON BEHALF OF CURTIN AND JOHNSON, INCORPORATED, IN CONNECTION WITH THE EVALUATION OF ITS BID SUBMITTED UNDER DISTRICT OF COLUMBIA GOVERNMENT INVITATION FOR BIDS NO. C-69173-H FOR REPAIR OF THE DECK OF THE WASHINGTON CHANNEL BRIDGE.

THE INVITATION DIVIDED THE WORK TO BE PERFORMED INTO NINE PAY ITEMS. ALL OF THE ITEMS EXCEPT ONE (MAINTENANCE OF HIGHWAY TRAFFIC) WERE BASED ON ESTIMATED QUANTITIES AND BIDDERS WERE TO QUOTE UNIT PRICES AND TOTAL AMOUNTS FOR THE VARIOUS ITEMS.

THREE BIDS WERE RECEIVED AND OPENED ON JUNE 11, 1969. THE TOTAL BID PRICES PUBLICLY READ WERE AS FOLLOWS:

1. CURTIN AND JOHNSON $343,032.26

2. CORSON AND GRUMAN CO. $357,257.80

3. ARDSLEY CONSTRUCTION CO., INC. $557,460.00

IN THE COURSE OF PREPARING THE ABSTRACT OF BIDS, IT WAS NOTED THAT FOR ITEM NO. 306 004, INVOLVING AN ESTIMATED QUANTITY OF 255 CUBIC YARDS OF STRUCTURE HARD SURFACE EXCAVATION, CURTIN AND JOHNSON'S UNIT BID PRICE WAS $188. THE EXTENDED PRICE BASED ON THIS UNIT PRICE WAS $47,940 AS COMPARED TO AN EXTENDED PRICE OF $22,440 SET FORTH IN THE BID DOCUMENT. USING THE UNIT PRICE CURTIN AND JOHNSON'S TOTAL BID WOULD BECOME $368,532.26, MAKING IT SECOND LOW.

CURTIN AND JOHNSON WAS IMMEDIATELY NOTIFIED AND IN TURN, BY TELEGRAM, CLAIMED THAT ITS INTENDED UNIT PRICE WAS $88. IN SUPPORT OF ITS CONTENTION, CURTIN AND JOHNSON SUBMITTED SWORN STATEMENTS EXECUTED BEFORE A NOTARY PUBLIC TO THE EFFECT THAT THE BID PRICES SHOWN ON CERTAIN WORK SHEETS RELATING TO THE WASHINGTON CHANNEL DECK REPAIR JOB WERE INTENDED FOR USE AS BID PRICES ON THE JOB. ON THE WORK SHEET CONCERNING THE ITEM IN QUESTION THE UNIT PRICE IS SHOWN AS "$88.00" BUT THE WORD ,BID" WHICH ENCROACHES ON THE UNIT PRICE COLUMN, IS SO WRITTEN THAT A PORTION OF THE LETTER "D" COULD BE MISTAKEN FOR A NUMERAL "1.'

THE CONTRACTING OFFICER DETERMINED THAT THE REQUEST FOR CORRECTION OF THE UNIT PRICE FROM $188 TO $88 SHOULD NOT BE ALLOWED. THE PRINCIPAL BASIS FOR THIS DETERMINATION WAS THAT, EVEN ACCEPTING THE CONTRACTOR'S CONTENTIONS, THE BID PRICE INTENDED COULD BE ESTABLISHED ONLY BY RESORTING TO DOCUMENTATION OUTSIDE THE BID DOCUMENTS. IN THIS CONNECTION IT WAS NOTED THAT, WHILE THE GOVERNMENT ESTIMATE WAS $95 PER CUBIC YARD, THE OTHER TWO BIDS FOR THE ITEM WERE $216 AND $350. THUS, IT COULD NOT BE DETERMINED FROM THE FACE OF THE BID THAT THE $188 PRICE WAS RIDICULOUSLY HIGH AND THAT $88 WAS OBVIOUSLY INTENDED AS THE BID PRICE. IT WAS ALSO FELT THAT IF THE SECOND BIDDER'S PRICE HAD BEEN GREATER THAN $368,532.26, THE LOW BIDDER WOULD HAVE BEEN IN A POSITION TO REMAIN SILENT AND TAKE ADVANTAGE OF THE UNIT PRICE AS BID. FINALLY, IT WAS CONCLUDED THAT TO PERMIT CORRECTION IN THIS CASE WOULD ADVERSELY AFFECT PUBLIC CONFIDENCE IN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM.

YOU CONTEND THAT THE CONTRACTING OFFICER'S DETERMINATION IS ERRONEOUS BECAUSE IT IS PREMISED ON THE BASIS THAT HE MUST USE THE UNIT PRICE OF $188 AND INCREASE THE TOTAL PRICE FOR THE ITEM. YOU URGE THAT, SINCE THE BID FOR THE ITEM CONTAINED TWO PRICES, ONE OF $188 AND ONE OF $88 (WHICH IS ARRIVED AT BY DIVIDING THE TOTAL PRICE BY THE NUMBER OF UNITS SPECIFIED), THE ISSUE IS WHICH PRICE THE BIDDER REALLY INTENDED AND WHICH WAS ENTERED AS THE RESULT OF AN ERROR. IT IS STATED THAT WHERE ERRONEOUS EQUIVALENTS (TWO PRICES) ARE PRESENT IN THE BID, IT IS QUITE CLEAR FROM OUR DECISIONS THAT DOCUMENTS OUTSIDE OF THE BID INSTRUMENT, SUCH AS WORKSHEETS, ETC., MAY BE REFERRED TO FOR THE PURPOSE OF ASCERTAINING WHICH OF THE TWO BID PRICES THE BIDDER INTENDED TO SUBMIT. IN SUPPORT THEREOF, YOU CITE 36 COMP. GEN. 429, 37 ID. 829, 40 ID. 191, 41 ID. 469 AND 45 ID. 754.

IN EACH OF THE CITED CASES THE ERRONEOUS PRICE WAS OBVIOUS FROM THE ANALYSIS OF THE BID ITSELF IN RELATION TO THE OTHER BIDS. FOR EXAMPLE, IN 36 COMP. GEN. 429 THE UNIT PRICE SHOWN WAS $8.74 WHILE THE TOTAL FOR THE ITEM REPRESENTED A UNIT PRICE OF $0.874. SINCE THE OTHER BIDS AND THE GOVERNMENT'S ESTIMATE FOR THE ITEM (AND THE PRICE OFFERED BY THE BIDDER ON A SIMILAR ITEM IN THE SAME BID) WERE ENTIRELY CONSISTENT WITH THE LOWER FIGURE AND TOTALLY INCONSISTENT WITH THE UNIT FIGURE SHOWN, WE CONCLUDED THAT THE BID COULD BE ACCEPTED ON THE BASIS OF THE EXTENDED PRICE FOR THE ITEM. ON THE OTHER HAND, IN CASES OF THIS KIND WHERE EITHER THE UNIT PRICE SHOWN OR THAT DERIVED FROM THE TOTAL PRICE FOR THE ITEM COULD REASONABLY HAVE BEEN INTENDED, WE HAVE NOT PERMITTED CORRECTION IF THE FIGURE SELECTED WOULD DECIDE THE LOW BIDDER NOTWITHSTANDING THE SUBMISSION OF EVIDENCE EXTRANEOUS TO THE BID. WE THINK OUR DECISION B-166795, JULY 3, 1969, COPY ENCLOSED, IN WHICH WE DENIED CORRECTION, IS DISPOSITIVE OF THE MATTER AT ISSUE.

ACCORDINGLY, YOUR PROTEST AGAINST THE CONTRACTING OFFICER'S DETERMINATION MUST BE DENIED.