B-167649, OCT. 3, 1969

B-167649: Oct 3, 1969

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WHERE DIFFERENCE BETWEEN LOW AND NEXT LOW BID PRICES WAS APPROXIMATELY 10 PERCENT. OFFERS NO LEGAL BASIS OF RELIEF FROM OBLIGATION OF CONTRACT PERFORMANCE AT CONTRACT PRICE SINCE PROTESTANT SUBMITTED NO ORIGINAL WORKSHEETS EXPLAINING ALLEGED ERROR AND CONTRACTING AGENCY IS AUTHORIZED TO DETERMINE. THAT BID SHOULD BE CONSIDERED FOR AWARD IN FORM SUBMITTED WHERE EVIDENCE IS NOT CLEAR AND CONVINCING THAT BID AS SUBMITTED WAS NOT BID INTENDED. INC.: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 4 AND 15. THE SUBJECT INVITATION WAS ISSUED ON MARCH 7. AWARD WAS TO BE MADE ON ONE OF THESE THREE GROUPS. BIDS WERE OPENED ON MAY 1. 103.32 FOR ITEM 3 WAS THE LOWEST OF THE 18 RESPONSES RECEIVED TO THE INVITATION.

B-167649, OCT. 3, 1969

MISTAKES--ALLEGATION PRIOR TO AWARD--EVIDENCE OF ERROR PRICES MISSTATED UNDER INVITATION FOR CUSTODIAL SERVICES WITH BID OPENING ON MAY 1, WHERE DIFFERENCE BETWEEN LOW AND NEXT LOW BID PRICES WAS APPROXIMATELY 10 PERCENT, LOW BIDDER WHO REQUESTED WITHDRAWAL OF BID ON JUNE 16 CLAIMING "MATHEMATICAL ERROR" AFTER FAILING TO RESPOND TO MAY 7 ADMINISTRATIVE REQUEST TO CONFIRM BID PRICE, OFFERS NO LEGAL BASIS OF RELIEF FROM OBLIGATION OF CONTRACT PERFORMANCE AT CONTRACT PRICE SINCE PROTESTANT SUBMITTED NO ORIGINAL WORKSHEETS EXPLAINING ALLEGED ERROR AND CONTRACTING AGENCY IS AUTHORIZED TO DETERMINE, INCIDENT TO MISTAKES ALLEGED AFTER BID OPENING BUT PRIOR TO AWARD, THAT BID SHOULD BE CONSIDERED FOR AWARD IN FORM SUBMITTED WHERE EVIDENCE IS NOT CLEAR AND CONVINCING THAT BID AS SUBMITTED WAS NOT BID INTENDED.

TO GILTRON ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 4 AND 15, 1969, WITH ENCLOSURES, PROTESTING AGAINST THE CONSIDERATION OF YOUR BID AS SUBMITTED AND AWARD OF CONTRACT NO. F04626-70-C-0035 TO YOUR FIRM UNDER INVITATION FOR BIDS NO. F04626-69-B-1737, ISSUED BY THE BASE PROCUREMENT OFFICE, TRAVIS AIR FORCE BASE, CALIFORNIA.

THE SUBJECT INVITATION WAS ISSUED ON MARCH 7, 1969, TO SECURE CUSTODIAL SERVICES FOR BASE PASSENGER SERVICE FACILITIES (BUILDINGS 3 AND 194) AT TRAVIS AIR FORCE BASE FOR A 12-MONTH PERIOD. THE INVITATION SCHEDULE CONTAINED THREE ITEMS: ITEM 1, GROUP 1, COVERED CUSTODIAL SERVICES FOR BUILDINGS 3 AND 194; ITEM 2, GROUP 2, COVERED BUILDING 3; AND ITEM 3, GROUP 3, COVERED BUILDING 194. AWARD WAS TO BE MADE ON ONE OF THESE THREE GROUPS. BIDS WERE OPENED ON MAY 1, 1969, AND YOUR FIRM'S AGGREGATE BID OF $24,103.32 FOR ITEM 3 WAS THE LOWEST OF THE 18 RESPONSES RECEIVED TO THE INVITATION. IT IS REPORTED THAT THE SECOND LOWEST BID FOR ITEM 3 WAS $26,985.60 (APPROXIMATELY 10 PERCENT HIGHER THAN YOUR BID) AND THE THIRD LOWEST WAS $29,952.

SUBSEQUENT TO THE BID OPENING, THE CONTRACTING OFFICER BY LETTER DATED MAY 7, 1969, REQUESTED THAT YOU CORRECT TWO MINOR INFORMALITIES IN YOUR BID AND THAT YOU CAREFULLY REVIEW EVERY ASPECT OF YOUR BID AND, IF NO MISTAKE HAD BEEN MADE, CONFIRM YOUR BID PRICES IN WRITING. BY LETTER DATED MAY 12, 1969, YOU CORRECTED THE MINOR INFORMALITIES BUT YOU DID NOT CONFIRM YOUR BID PRICES OR ALLEGE ANY MISTAKE IN BID. THEREAFTER, BY LETTER DATED MAY 29, 1969, THE CONTRACTING OFFICER AGAIN REQUESTED THAT YOU CONFIRM YOUR BID PRICES AS CORRECT. IN RESPONSE THERETO, BY LETTER DATED JUNE 16, YOU NOTIFIED THE CONTRACTING OFFICER THAT YOU WISHED TO WITHDRAW YOUR BID DUE TO "MATHEMATICAL ERROR" AND STATED THAT YOU FOUND IT IMPOSSIBLE TO EXECUTE CUSTODIAL SERVICES IN BUILDING 194 FOR THE SUM QUOTED. NO EVIDENCE WAS SUBMITTED WITH YOUR LETTER IN SUPPORT OF THE ALLEGED MATHEMATICAL ERROR. ON JUNE 19, 1969, AT THE REQUEST OF THE CONTRACTING OFFICER, YOU EXTENDED YOUR BID ACCEPTANCE PERIOD FROM JUNE 30, 1969, TO JULY 31, 1969.

BY LETTER DATED JUNE 19, 1969, THE CONTRACTING OFFICER ADVISED YOU THAT YOUR REQUEST FOR WITHDRAWAL OF YOUR BID BASED ON MATHEMATICAL ERROR MUST BE SUPPORTED BY EVIDENCE SUBSTANTIATING THE ALLEGED MISTAKE AND LISTED THE FOLLOWING EXAMPLES OF THE EVIDENCE REQUIRED:

"A). FILE COPY OF THE OFFER

"B). ORIGINAL WORKSHEETS OR DATA USED IN PREPARING THE OFFER (SUPPORTED BY SWORN STATEMENTS, IF POSSIBLE).

"C). SUBCONTRACTORS' QUOTATIONS, IF ANY.

"D). PUBLISHED PRICE LISTS.

"E). ANY OTHER EVIDENCE WHICH CONCLUSIVELY ESTABLISHES THE EXISTENCE OF THE ERROR, THE MANNER IN WHICH IT OCCURRED, AND THE OFFER ACTUALLY INTENDED.'

IN REPLY, BY YOUR LETTER DATED JUNE 30, 1969, YOU SUBMITTED A COPY OF YOUR WORKSHEET AND BREAKDOWN SHEET AND STATED THAT YOUR BID FOR ITEM 3, BUILDING 194, SHOULD HAVE BEEN $3,980.31 PER MONTH INSTEAD OF $2,008.61 PER MONTH. YOU ALSO STATED THAT NEITHER TAXES, INSURANCE, VACATION, NOR SUPPLIES WERE ADDED IN THE CONTRACT PRICE AND THAT, THEREFORE, IT WOULD BE IMPOSSIBLE FOR YOU TO PERFORM THE WORK OUTLINED IN THE CONTRACT FOR YOUR ORIGINAL BID PRICE.

AN EXAMINATION OF YOUR WORKSHEET CONTAINS ONLY THE TOTALS OF YOUR MONTHLY COMPUTATIONS FOR THE THREE ITEMS INVOLVED AND THE EXTENSIONS OF THESE FIGURES. THE FIGURES SUBMITTED FOR ITEMS 1 AND 2 ARE SUPPOSEDLY THE FIGURES SUBMITTED FOR THE BID. THE FIGURES FOR ITEM 2 ON THE WORKSHEET VARIED BOTH IN THE MONTHLY PRICE AND THE EXTENSION FROM THE BID PRICE SUBMITTED. THE MONTHLY FIGURES AND EXTENSION OF ITEM 3 ARE PRESUMABLY A MODIFIED BID FOR THIS ITEM ALTHOUGH NO EXPLANATION IS GIVEN. THE BREAKDOWN SHEET CONTAINS FIGURES FOR THE VARIOUS COMPONENTS CONSIDERED IN THE BID AND INDICATES HOW YOU ARRIVED AT YOUR SO-CALLED MODIFIED BID SET FORTH FOR ITEM 3 OF THE WORKSHEET. YOU SUBMITTED NO COPIES OF YOUR ORIGINAL WORKSHEETS NOR WAS ANY EXPLANATION MADE CONCERNING ANY ERROR MADE IN YOUR ITEM 3 OFFER. BASED ON THE FOREGOING, THE CONTRACTING OFFICER CONCLUDED THAT NO EVIDENCE HAD BEEN SUBMITTED TO SUPPORT YOUR ALLEGATION OF MISTAKE IN BID. MOREOVER, THE CONTRACTING OFFICER VIEWED THE DISPARITY OF APPROXIMATELY 10 PERCENT BETWEEN YOUR BID AND THE NEXT LOW BID AS NOT WARRANTING THE PRESUMPTION OF A MISTAKE IN BID.

IT IS REPORTED THAT AFTER REVIEW OF YOUR LETTER AND ATTACHMENTS, THE CONTRACTING OFFICER REQUESTED YOU TO FURNISH THE ORIGINAL WORKSHEETS AND YOU WERE INFORMED OF THE POSSIBILITY THAT YOUR BID WOULD BE ACCEPTED AS ORIGINALLY SUBMITTED. NO RESPONSE WAS RECEIVED TO THIS REQUEST.

THEREAFTER, THE CONTRACTING OFFICER FORWARDED THE FILE CONCERNING YOUR CLAIM FOR WITHDRAWAL OF YOUR BID TO THE STAFF JUDGE ADVOCATE, AIR FORCE LOGISTICS COMMAND, WHO HAS BEEN DELEGATED AUTHORITY TO DECIDE SUCH MATTERS BY PARAGRAPH 2-406.3 (B) (3) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). AFTER CONSIDERING ALL THE EVIDENCE SUBMITTED BY YOU IN SUPPORT OF YOUR ALLEGATION OF MISTAKE, THE ACTING STAFF JUDGE ADVOCATE, PURSUANT TO ASPR 2-406.3 (A) (4), ISSUED A DETERMINATION DATED JULY 24, 1969, WHICH STATED IN PERTINENT PART AS FOLLOWS:

"THAT CLEAR AND CONVINCING EVIDENCE HAS NOT BEEN PRESENTED ESTABLISHING THE EXISTENCE OF A MISTAKE OR THE ALLEGED INTENDED BID TO IFB F04626-69-B- 1737 AS PERTAINS TO ITEM 3, GROUP 3.

"THAT GILTRON ASSOCIATES INC. OF LOS ANGELES, CALIFORNIA, SHOULD NOT BE PERMITTED TO EITHER MODIFY OR WITHDRAW THE BID.

"THAT THE BID OF GILTRON ASSOCIATES INC. AS PERTAINS TO ITEM 3, GROUP 3 SHOULD BE CONSIDERED FOR AWARD AS SUBMITTED WITHOUT CHANGE.' THEREAFTER, CONTRACT NO. F04626-70-C-0035 WAS AWARDED TO YOUR FIRM ON JULY 31, 1969, WITH PERFORMANCE TO COMMENCE ON AUGUST 11, 1969.

UNDER ASPR 2-406.3 (A) (4), THE CONTRACTING AGENCY IS AUTHORIZED TO DETERMINE, IN CONNECTION WITH MISTAKES ALLEGED AFTER BID OPENING BUT PRIOR TO AWARD, THAT THE BID SHOULD BE CONSIDERED FOR AWARD IN THE FORM SUBMITTED WHERE THE EVIDENCE IS NOT CLEAR AND CONVINCING THAT THE BID AS SUBMITTED WAS NOT THE BID INTENDED. WE HAVE REVIEWED THE EVIDENCE SUBMITTED BY YOU IN SUPPORT OF THE CLAIM OF ERROR AND WE CANNOT DISAGREE WITH THE ADMINISTRATIVE DETERMINATION THAT THE EVIDENCE DOES NOT CLEARLY AND CONVINCINGLY ESTABLISH THE FACT THAT A MISTAKE WAS MADE. SEE B- 164388, JULY 29, 1968; AND B-165880, FEBRUARY 24, 1969.

ACCORDINGLY, WE FIND NO LEGAL BASIS UPON WHICH YOU MAY BE AFFORDED ANY RELIEF FROM THE PERFORMANCE OF THE CONTRACT AT THE PRICE SPECIFIED THEREIN.