B-174957, MAY 30, 1972

B-174957, MAY 30, 1972

BID PROTEST - SURPLUS SALES - NONRESPONSIVENESS - ALLEGED IMPROPER DETERMINATION DECISION DENYING THE PROTEST OF SURPLUS TIRE SALES AGAINST AWARD OF A SURPLUS SALES CONTRACT TO ANY OTHER BIDDER UNDER AN IFB ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIF. PROTESTANT'S FAILURE TO PRESENT CLEAR AND CONVINCING EVIDENCE AS TO THE AMOUNT ACTUALLY INTENDED WOULD ORDINARILY REQUIRE THAT AWARD BE MADE ON WHICHEVER BASIS, UNIT OR TOTAL PRICE, WOULD BE MORE FAVORABLE TO THE GOVERNMENT. HOWEVER, THE CONTRACTING OFFICER'S DECISION TO REJECT THE BID AS NONRESPONSIVE CANNOT BE EFFECTIVELY CORRECTED AT THIS TIME, SINCE THE ITEM HAS ALREADY BEEN SOLD TO ANOTHER FIRM.

TO SURPLUS TIRE SALES:

REFERENCE IS MADE TO YOUR TELEGRAMS OF JANUARY 16 AND 20 AND YOUR LETTERS DATED JANUARY 19 AND 24, 1972, WITH ENCLOSURES, PROTESTING AWARD TO ANY OTHER BIDDER UNDER ITEM 275, INVITATION FOR BIDS (IFB) NO. 44-2075, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA.

THE INVITATION OFFERED FOR SALE 355 ITEMS OF SURPLUS GOVERNMENT PROPERTY. ITEM 275 WAS DESCRIBED AS 4200 FEET OF RUBBER STEAM HOSE. PART 2, PARAGRAPH 5 OF THE PAMPHLET ENTITLED "SALE BY REFERENCE", DATED FEBRUARY 1971, AND PART OF THE SUBJECT SOLICITATION STATES IN PART:

"WHEN BIDS ARE SOLICITED ON A UNIT PRICE BASIS, BIDDERS WILL INSERT THEIR UNIT PRICES AND TOTAL PRICES IN THE SPACE PROVIDED FOR EACH ITEM."

BIDS FOR ITEM 275 WERE SOLICITED ON A UNIT (PER FOOT) BASIS WITH A TOTAL QUANTITY OF 4200 FEET INDICATED.

IN ACCORDANCE WITH THE SOLICITATION INSTRUCTIONS, YOUR BID INCLUDED A UNIT PRICE, $.3211 PER FOOT, AND A TOTAL BID PRICE, $1298.62 FOR THE 4200 FEET. THE CONTRACTING OFFICER NOTED AN ERROR IN THAT THE UNIT BID PRICE MULTIPLIED BY 4200 FEET WOULD RESULT IN A TOTAL BID OF $1348.62. TELEPHONE THE CONTRACTING OFFICER REQUESTED VERIFICATION OF YOUR BID. RESPONSE YOU CONFIRMED THE TOTAL OF $1298.62 AND SAID THAT THE UNIT PRICE HAD BEEN ERRONEOUSLY COMPUTED. HOWEVER, BY LETTER DATED DECEMBER 27, 1971, TO THE CONTRACTING OFFICER YOU STATED THAT THE INTENDED PRICE FOR ITEM 275 WAS $1290.82. BY LETTER DATED JANUARY 19, 1972, TO THE CONTRACTING OFFICER YOU STATED THAT YOUR BID WAS A PER FOOT BID OF $.3211 AND THAT THE TOTAL PRICE IS "OF NO MATTER OR VALUE AT THE OUTSET OF THE BIDDING." NO EVIDENCE WAS SUBMITTED TO SHOW HOW THE ERROR WAS MADE OR WHAT YOU INTENDED YOUR BID TO BE.

ON DECEMBER 30, 1971, THE CONTRACTING OFFICER DETERMINED THAT THE EVIDENCE WAS NOT CLEAR AND CONVINCING AS TO HOW THE ERROR WAS MADE AND AS TO THE BID AMOUNT ACTUALLY INTENDED AND THAT THEREFORE YOUR BID SHOULD BE REJECTED. AWARD OF CONTRACT WAS MADE TO ANOTHER FIRM AT A TOTAL PRICE OF $1100.40.

IN YOUR LETTERS TO THIS OFFICE, YOU ALLEGE THAT THE CONTRACTING OFFICER "HAS REFUSED TO FOLLOW THE TERMS AND CONDITIONS GOVERNING IFB 44-2075" IN THAT THERE IS NO AUTHORITY STATED IN THE IFB WHICH WOULD ALLOW THE CONTRACTING OFFICER TO REJECT A BID WHERE AN ERROR HAD BEEN MADE IN EXTENDING THE UNIT PRICE TO THE TOTAL PRICE AND THAT THE CONTRACTING OFFICER HAS NO AUTHORITY TO OBTAIN CLARIFICATION OF AN ERRONEOUSLY COMPUTED TOTAL BID PRICE.

IN GENERAL, WHERE A BID IS ON A PER UNIT BASIS AND THERE IS A DISPARITY BETWEEN THE UNIT BID PRICE AND THE EXTENDED TOTAL PRICE AND THE BIDDER IS UNABLE TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT AN ERROR HAD BEEN MADE AND WHAT HE INTENDED TO BID, THIS OFFICE HAS CONSISTENTLY UPHELD THE ADMINISTRATIVE DETERMINATION TO REJECT THE BID AS NONRESPONSIVE. 35 COMP. GEN. 279 (1955), 37 COMP. GEN. 210 (1957), 38 COMP. GEN. 76 (1958), AND B- 173717, OCTOBER 6, 1971.

HOWEVER, IN 42 COMP. GEN. 723 (1963), THIS OFFICE HELD THAT WHERE AN ERROR IN BID HAD BEEN MADE AND CLEAR AND CONVINCING EVIDENCE OF THE INTENDED BID HAD NOT BEEN FURNISHED AN AWARD OF CONTRACT SHOULD HAVE BEEN MADE TO THE LOW BIDDER AT THE ORIGINAL BID PRICE IF THE EVIDENCE WAS CLEAR AND CONVINCING THAT THE LOW BID WOULD HAVE REMAINED THE LOW BID (HIGHEST IN THE SALE OF SURPLUS PROPERTY) EVEN IF CORRECTED SINCE THE ACCEPTANCE OF SUCH A BID WOULD NOT BE PREJUDICIAL TO THE OTHER BIDDERS. ALSO SEE B- 155432, DECEMBER 1, 1964; B-165405, OCTOBER 24, 1968; B-168673, APRIL 7, 1970. APPLYING THAT REASONING TO THE PRESENT SITUATION, IT IS OUR VIEW THAT SINCE YOUR BID ON THE ITEM WAS MOST ACCEPTABLE UNDER EITHER THE UNIT OR THE TOTAL PRICE, AND IN THE ABSENCE OF ANY ADEQUATE PROOF TO ESTABLISH WHICH WAS INTENDED, THE ITEM SHOULD HAVE BEEN AWARDED TO YOU ON THE BASIS MORE FAVORABLE TO THE GOVERNMENT. HOWEVER, SINCE THE ITEM WAS LONG SINCE SOLD TO ANOTHER FIRM, IT WOULD NOT BE POSSIBLE TO AWARD THE ITEM TO YOU AT THIS TIME.

WE ARE RETURNING YOUR ENCLOSURES AS REQUESTED.