B-170226, OCT. 21, 1970

B-170226: Oct 21, 1970

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LOW BIDDER WHOSE INITIAL BID WAS DEFECTIVE AS A RESULT OF AN ERROR IN DIVISION IS ENTITLED TO WITHDRAW HIS BID. WORKSHEETS WHICH DEVIATED FROM THE BID PRICE ARE NOT CLEAR AND CONVINCING EVIDENCE OF THE PRICE INTENDED AND MAY NOT BE USED TO ESTABLISH THE BID. TO CUNNINGHAM AND MACLEAN: FURTHER REFERENCE IS MADE TO A TELEGRAM DATED JULY 2. THE INSTANT TWO-STEP FORMALLY ADVERTISED PROCUREMENT WAS INITIATED ON MARCH 10. IFB-0625 WAS ISSUED AS THE SECOND STEP OF THE PROCUREMENT TO THE FIVE FIRMS (INCLUDING GUILDNER) WHICH HAD SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS. THE FOLLOWING BIDS WERE RECORDED AT THE BID OPENING ON JUNE 12. 890.50 THE GOVERNMENT ESTIMATE FOR THE PROCUREMENT WAS $136. WAS THEREFORE ENTITLED TO WITHDRAWAL OF ITS BID BUT NOT TO CORRECTION OF THE ERROR.

B-170226, OCT. 21, 1970

BID PROTEST-CORRECTION OF BID DEFICIENCIES AFTER OPENING DENIAL OF PROTEST AGAINST REJECTION OF LOW BID AND AWARD OF CONTRACT TO W.G. JACQUES CO. FOR REPAIR OF SANITARY SEWAGE SYSTEM AT RICHARDS GEBAUR AIR FORCE BASE. LOW BIDDER WHOSE INITIAL BID WAS DEFECTIVE AS A RESULT OF AN ERROR IN DIVISION IS ENTITLED TO WITHDRAW HIS BID, BUT WORKSHEETS WHICH DEVIATED FROM THE BID PRICE ARE NOT CLEAR AND CONVINCING EVIDENCE OF THE PRICE INTENDED AND MAY NOT BE USED TO ESTABLISH THE BID.

TO CUNNINGHAM AND MACLEAN:

FURTHER REFERENCE IS MADE TO A TELEGRAM DATED JULY 2, 1970, FROM GUILDNER WATER AND SEWER, INC. (GUILDNER) AND TO YOUR LETTERS OF JULY 9 AND SEPTEMBER 18, 1970, ON BEHALF OF GUILDNER, PROTESTING AGAINST THE ADMINISTRATIVE REFUSAL TO CORRECT GUILDNER'S LOW BID SUBMITTED UNDER INVITATION FOR BIDS (IFB) NO. F23608-70-B-0625 (IFB-0625) ISSUED BY RICHARDS-GEBAUR AIR FORCE BASE, MISSOURI.

THE INSTANT TWO-STEP FORMALLY ADVERTISED PROCUREMENT WAS INITIATED ON MARCH 10, 1970, WITH THE ISSUANCE OF A REQUEST FOR TECHNICAL PROPOSALS FOR THE CLEANING, INSPECTION AND REPAIR OF THE SANITARY SEWERAGE SYSTEM IN TWO AREAS OF RICHARDS-GEBAUR AIR FORCE BASE, IDENTIFIED AS "PROJECT RG 21-9 (HOUSING AREA)" AND "PROJECT RG 36-9 (OPERATIONAL AREA)."

ON MAY 8, 1970, IFB-0625 WAS ISSUED AS THE SECOND STEP OF THE PROCUREMENT TO THE FIVE FIRMS (INCLUDING GUILDNER) WHICH HAD SUBMITTED ACCEPTABLE TECHNICAL PROPOSALS. THE FOLLOWING BIDS WERE RECORDED AT THE BID OPENING ON JUNE 12, 1970:

GUILDNER WATER & SEWER, INC. $100,294.00

W. G. JACQUES CO. 139,999.40

SOUTHERN LINE CLEANING, INC. 225,633.00

THE PENETRYN SYSTEM, INC. 228,218.70

VIDEO PIPE GROUTING, INC. 231,890.50 THE GOVERNMENT ESTIMATE FOR THE PROCUREMENT WAS $136,000. AFTER BID OPENING, IN VIEW OF THE DIFFERENCE BETWEEN THE GUILDNER BID AND THE OTHER BIDS AND THE GOVERNMENT ESTIMATE, THE CONTRACTING OFFICER ORALLY REQUESTED MR. GUILDNER TO REVIEW HIS BID AND SUBMIT A WRITTEN VERIFICATION THEREOF.

ON JUNE 19, 1970, MR. GUILDNER ADVISED THE CONTRACTING OFFICER THAT A MISTAKE HAD OCCURRED IN THE PREPARATION OF HIS BID. THE CONTRACTING OFFICER THEN DISCUSSED WITH MR. GUILDNER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3(E), WHICH REQUIRES REQUESTS FOR WITHDRAWAL OR MODIFICATION TO BE WRITTEN AND TO BE SUPPORTED BY ALL AVAILABLE PERTINENT EVIDENCE. IN COMPLIANCE WITH THESE REQUIREMENTS, ON JUNE 22, 1970, MR. GUILDNER SUBMITTED TO THE CONTRACTING OFFICER LETTERS EXPLAINING THE MISTAKE, COPIES OF CERTAIN WORKSHEETS, AND A COPY OF THE GUILDNER BID. MR. GUILDNER ALLEGED THAT HE HAD MADE AN ERROR OF "APPROXIMATELY $30,092.00," AND REQUESTED THAT HIS BID BE INCREASED BY THAT AMOUNT, WHICH WOULD NOT AFFECT HIS STANDING AS THE LOWEST BIDDER.

THE CONTRACTING OFFICER CONCLUDED THAT ALTHOUGH AN ERROR DID OCCUR, MR. GUILDNER HAD NOT PRESENTED CLEAR AND CONVINCING EVIDENCE OF THE BID ACTUALLY INTENDED. THE CONTRACTING OFFICER THEREFORE FORWARDED THE MATTER FOR DETERMINATION BY THE STAFF JUDGE ADVOCATE, HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WITH THE RECOMMENDATION THAT MR. GUILDNER BE PERMITTED TO WITHDRAW HIS BID. BY AUTHORITY OF ASPR 2-406.3(B)(3) THE STAFF JUDGE ADVOCATE DETERMINED THAT THE BIDDER HAD CLEARLY ESTABILLHED THE MAKING OF A MISTAKE IN THE SUBMISSION OF ITS BID BUT HAD NOT PRESENTED CONVINCING EVIDENCE OF THE BID ACTUALLY INTENDED, AND WAS THEREFORE ENTITLED TO WITHDRAWAL OF ITS BID BUT NOT TO CORRECTION OF THE ERROR. PURSUANT TO THIS DETERMINATION, AWARD WAS MADE TO THE NEXT LOW BIDDER, W. G. JACQUES CO., IN THE AMOUNT OF $139,999.40. YOU THEN PROTESTED TO THIS OFFICE, CONTENDING THAT GUILDNER SHOULD HAVE BEEN AWARDED THE CONTRACT FOR THE MODIFIED AMOUNT.

THE MISTAKE AND REQUEST FOR MODIFICATION AFFECTS ONLY THE PRICES FOR THE REPLACEMENT OF VARIOUS SIZES OF MISALIGNED, CRUSHED OR BROKEN SEWER PIPE. THIS PORTION OF THE WORK APPEARS AS FOLLOWS IN THE BIDDING SCHEDULE, WITH THE ESTIMATED QUANTITY OF PIPE TO BE REPLACED EXPRESSED IN LINEAR FEET (L.F.): "PROJECT RG 21-9 (HOUSING AREA)

EST UNIT EST

QTY UNIT PRICE AMOUNT

"C. REPLACE PIPE, 8" 480 L.F.

PROJECT RG 36-9(OPERATIONAL AREA)

M. REPLACE PIPE

(1) 8" PIPE 30 L.F.

(2) 10" PIPE 50 L.F.

(3) 12" PIPE 80 L.F.

(4) 15" PIPE 30 L.F.

(5) 18" PIPE 20 L.F. "

WORKSHEET "A-1", UPON WHICH MR. GUILDNER CALCULATED HIS LABOR COST FOR PIPE REPLACEMENT, SET FORTH A BASE HOURLY RATE TO WHICH PERCENTAGES FOR INSURANCE AND OVERHEAD WERE APPLIED TO ARRIVE AT A TOTAL HOURLY LABOR RATE OF $11.47. THE WORKSHEET NEXT SHOWS THAT 2100 HOURS OF LABOR WERE ANTICIPATED FOR PIPE REPLACEMENT. THE 2100 HOURS WERE THEN MULTIPLIED BY $11.47 FOR A TOTAL LABOR COST OF $24,087.00. THE UNIT (LINEAR FOOT) LABOR COST FOR PIPE REPLACEMENT WAS ARRIVED AT BY DIVIDING $24,087.00 BY 690 LINEAR FEET, FOR A QUOTIENT OF "3.49". WE AGREE WITH THE STAFF JUDGE ADVOCATE'S DETERMINATION THAT THE LATTER FIGURE IS CLEARLY IN ERROR AND THAT THE DIVISION OF $24,087.00 BY 690 LINEAR FEET SHOULD HAVE RESULTED IN A LABOR COST OF $34.90 PER LINEAR FOOT FOR PIPE REPLACEMENT.

NEVERTHELESS, THE UNIT LABOR COST OF $3.49 WAS CARRIED FORWARD TO WORKSHEET "B-1", WHEREIN IT WAS ADDED TO UNIT COSTS FOR MATERIALS AND RENTAL EQUIPMENT, AND A PERCENTAGE WAS APPLIED TO THIS SUBTOTAL TO ARRIVE AT A FIGURE WHICH REPRESENTED THE TOTAL UNIT PRICE FOR EACH SCHEDULE ITEM.

WORKSHEET "A-2", PREPARED BY GUILDNER AFTER BID OPENING TO DISCERN WHAT THE BID SHOULD HAVE BEEN, IS IDENTICAL TO WORKSHEET "A-1" EXCEPT THAT WORKSHEET "A-2" CORRECTLY SHOWS A UNIT LABOR COST FOR PIPE REPLACEMENT OF $34.90 INSTEAD OF $3.49. WORKSHEET "B-2", ALSO PREPARED AFTER BID OPENING, PURPORTS TO SHOW WHAT THE UNIT PRICES WOULD HAVE BEEN IF THE CORRECT FIGURE OF $34.90 HAD BEEN USED. THESE CHANGES WERE SUMMARIZED AS FOLLOWS IN MR. GUILDNER'S LETTER OF JUNE 22, 1970 TO THE CONTRACTING OFFICER:

"DUE TO THIS ERROR OUR BID WAS APPROXIMATELY $30,092.00 INCORRECT. B 1 WAS OUR TOTAL COST AS JOB WAS FIGURED AND IT SHOULD HAVE BEEN AS B 2. THE ONLY DIFFERENCE WILL BE IN THE PIPE REPLACEMENT AS FOR EXAMPLE THE 8" PIPE WAS FIGURED AT $21.81 AND IT SHOULD HAVE BEEN $65.78, 10" PIPE WAS FIGURED AT $22.51 AND IT SHOULD HAVE BEEN $66.48, 12" PIPE WAS FIGURED AT $23.27 AND IT SHOULD HAVE BEEN $67.24, 15" PIPE WAS FIGURED AT $25.30 AND IT SHOULD HAVE BEEN $69.27, AND 18" PIPE WAS FIGURED AT $27.52 AND IT SHOULD HAVE BEEN $70.10. *** " ASPR 2-406.3 PROVIDES IN PERTINENT PART:

"(A) THE DEPARTMENTS ARE AUTHORIZED TO MAKE THE FOLLOWING ADMINISTRATIVE DETERMINATIONS IN CONNECTION WITH MISTAKES IN BIDS, OTHER THAN APPARENT CLERICAL MISTAKES, ALLEGED AFTER OPENING OF BIDS AND PRIOR TO AWARD.

"(3) WHERE THE BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE; PROVIDED THAT, IN THE EVENT SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER BIDS, THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. IF THE EVIDENCE IS CLEAR AND CONVINCING ONLY AS TO THE MISTAKE, BUT NOT AS TO THE INTENDED BID, A DETERMINATION PERMITTING THE BIDDER TO WITHDRAW HIS BID MAY BE MADE."

WE BELIEVE THE PRESENT RECORD SUPPORTS THE STAFF JUDGE ADVOCATE'S DETERMINATION THAT CLEAR AND CONVINCING EVIDENCE OF THE BID ACTUALLY INTENDED HAS NOT BEEN PRESENTED. A COMPARISION OF WORKSHEET "B-1" WITH THE GUILDNER BID REVEALS THAT MR. GUILDNER USUALLY DID NOT ADOPT THE TOTAL WORKSHEET UNIT PRICE AS HIS BID PRICE. WITH RESPECT TO THE PIPE REPLACEMENT ITEMS ALONE, THE FOLLOWING DEVIATIONS APPEAR:

SCHEDULE WORKSHEET BID UNIT

ITEM UNIT PRICE PRICE

C. REPLACE PIPE, 8" (480 L.F.) $21.81 $21.70

M. REPLACE PIPE

(1) 8" PIPE (30 L.F.) 21.81 21.70

(2) 10" PIPE (50 L.F.) 22.51 21.70

(3) 12" PIPE (80 L.F.) 23.27 24.20

(4) 15" PIPE (30 L.F.) 25.30 29.20

(5) 18" PIPE (20 L.F.) 27.50 34.00 THUS, GUILDNER'S BID PRICES FOR PIPE REPLACEMENT RANGED FROM APPROXIMATELY ONE-HALF OF ONE PERCENT BELOW ITS WORKSHEET PRICE TO 23-1/2 PERCENT ABOVE ITS WORKSHEET PRICE. WE CAN DISCERN NO PREDICTABLE PROGRESSION TO THESE DEVIATIONS, WHICH APPEAR TO HAVE BEEN MADE AFTER THE WORKSHEETS WERE COMPLETED IN LIGHT OF CONSIDERATIONS KNOWN ONLY TO MR. GUILDNER.

YOU CONTEND THAT THE PRICES SHOWN ON WORKSHEET "B-2" SHOULD NOW BE ACCEPTED AS THE BID INTENDED. HOWEVER, IN VIEW OF THE DEVIATIONS FROM THE WORKSHEET FIGURES TAKEN BY MR. GUILDNER IN THE SUBMISSION OF HIS BID, IT IS VIRTUALLY IMPOSSIBLE TO DETERMINE TO WHAT EXTENT MR. GUILDNER WOULD HAVE RELIED UPON THE AMOUNTS SHWON IN WORKSHEET "B-2" WHICH HE NOW ASSERTS SHOULD HAVE BEEN HIS BID PRICE. COMPARE B-160784, APRIL 13, 1967; B- 145954, JULY 6, 1961. THIS FACTOR IS ABSENT FROM OUR DECISIONS WHICH YOU HAVE CITED IN SUPPORT OF YOUR CONTENTION.

FURTHER, THE RECORD IS UNCLEAR AS TO THE AMOUNT OF ERROR WHICH IS CLAIMED TO HAVE OCCURRED. MR. GUILDNER'S LETTER OF JUNE 22, 1970 TO THE CONTRACTING OFFICER, QUOTED ABOVE, STATES "OUR BID WAS APPROXIMATELY $30,092.00 INCORRECT." MR. GUILDNER THEN COMPARED THE COST AS THE JOB "AS FIGURED" (WORKSHEET "B-1") WITH THE COST AS "IT SHOULD HAVE BEEN" (WORKSHEET "B-2"). IF THE UNIT PRICES SET FORTH IN THE LETTER OF JUNE 22 ARE EXTENDED BY THE NUMBER OF LINEAR FEET OF PIPE TO BE REPLACED, THE DIFFERENCE THEREIN IS $30,311.50 RATHER THAN $30,092.00.

YOUR LETTER OF SEPTEMBER 18, 1970 STATES:

"THE IMPORTANT POINT IS THAT IT IS POSSIBLE TO DETERMINE FROM THE WORK SHEETS WITH ABSOLUTE CERTAINTY THE AMOUNT OF ERROR MADE. THE AMOUNT OF THE ERROR WAS $30,339.30. IT IS THEREFORE OBVIOUS THAT (GUILDNER'S) BID SHOULD HAVE BEEN INCREASED BY THAT AMOUNT." YOU FURTHER STATE THAT THE WORKSHEETS REVEAL THAT THE DEVIATIONS MADE BY MR. GUILDNER INCREASED HIS BID PRICE BY $247.30, WHICH WHEN SUBTRACTED FROM $30,339.30 WOULD LEAVE A REMAINDER OF $30,092.00, THE AMOUNT OF ERROR CLAIMED BY MR. GUILDNER IN HIS LETTER OF JUNE 22. OUR COMPARISON OF THE PRICES ON WORKSHEETS "B-1" AND "B-2" FOR SCHEDULE ITEMS C. AND M. (1) THROUGH (5) RESULTS IN A DIFFERENCE OF $30,311.50 RATHER THAN $30,339.30. ADDITIONALLY, A COMPARISON OF WORKSHEET "B-1" WITH THE GUILDNER BID SHOWS THAT THE DEVIATIONS WHICH OCCURRED REGARDING THE PIPE REPLACEMENT ITEMS INCREASED THE BID PRICE BY $224.40, NOT $247.30. THEREFORE, EVEN IF WE ASSUME THAT WORKSHEET "B-2" REPRESENTS THE INTENDED UNIT PRICES, WE ARE UNABLE TO RECONCILE THEM WITH THE TOTAL AMOUNT OF THE MISTAKE ALLEGED, OR WITH THE AMOUNT OF THE BID WHICH IT IS ASSERTED MR. GUILDNER INTENDED TO MAKE.

FOR THE FOREGOING REASONS WE ARE UNABLE TO DISAGREE WITH THE DEPARTMENT'S CONCLUSION THAT GUILDNER'S INTENDED BID PRICE COULD NOT BE ASCERTAINED FROM THE EVIDENCE SUBMITTED, AND YOUR PROTEST MUST THEREFORE BE DENIED.