B-175196, APR 19, 1972

B-175196: Apr 19, 1972

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IT IS THE OPINION OF THE COMP. SINCE IT IS CLEAR THAT UNIT PRICE WAS INTENDED. ITEM 216 WAS ADVERTISED AS "FREQUENCY METER: DIVCO-WAYNE ELECTRONICS. " AND BIDS WERE SOLICITED FOR UNIT AND TOTAL EXTENDED PRICES. CONTAINED IN THE IFB WAS THE FOLLOWING LEGEND: "ENTER A PRICE PER UNIT IN THE 'UNIT PRICE BID' COLUMN AND EXTEND THE TOTAL TO THE 'TOTAL PRICE BID' COLUMN WHEN BIDS ARE SOLICITED IN UNITS OF EACH. ENTER ONLY A TOTAL PRICE FOR THE LOT IN THE 'TOTAL PRICE BID' COLUMN WHEN BIDS ARE SOLICITED BY THE LOT.". WAS INCORPORATED BY REFERENCE. REVIEW OF THE BID REVEALED THAT THE UNIT AND EXTENDED PRICES WERE NOT COMPATIBLE WITH THE ADVERTISED QUANTITY OF 90. THAT ITS TOTAL BID PRICE FOR ITEM 216 WAS INCORRECT.

B-175196, APR 19, 1972

BID PROTEST - ERROR IN BID CONCERNING THE PROTEST OF FAIR RADIO SALES CO., AGAINST THE DETERMINATION OF COUNSEL, DEFENSE LOGISTICS SERVICE CENTER, BATTLE CREEK, MICH., THAT THE COMPANY MAY NOT BE PERMITTED TO CORRECT A MISTAKE IN BID SUBMITTED UNDER AN IFB ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIF. IT IS THE OPINION OF THE COMP. GEN. THAT THE COMPANY'S WORKSHEET ESTABLISHES AN OBVIOUS ERROR IN COMPUTATION. SINCE IT IS CLEAR THAT UNIT PRICE WAS INTENDED, THE BID MAY BE CORRECTED TO REFLECT A PROPER TOTAL BID PRICE.

TO GENERAL WALLACE H. ROBINSON:

BY LETTER DSAH-G DATED MARCH 8, 1972, THE ASSISTANT COUNSEL, HEADQUARTERS, CAMERON STATION, FURNISHED A REPORT ON THE PROTEST OF THE FAIR RADIO SALES CO. AGAINST THE DETERMINATION OF COUNSEL, DEFENSE LOGISTICS SERVICES CENTER (DLSC), BATTLE CREEK, MICHIGAN, THAT THE COMPANY MAY NOT BE PERMITTED TO CORRECT THE BID ON ITEM 216 IN SALES INVITATION FOR BIDS (IFB) NO. 44-2068, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA.

ITEM 216 WAS ADVERTISED AS "FREQUENCY METER: DIVCO-WAYNE ELECTRONICS, TYPE AN/URM-32A *** 90 EACH," AND BIDS WERE SOLICITED FOR UNIT AND TOTAL EXTENDED PRICES. CONTAINED IN THE IFB WAS THE FOLLOWING LEGEND:

"ENTER A PRICE PER UNIT IN THE 'UNIT PRICE BID' COLUMN AND EXTEND THE TOTAL TO THE 'TOTAL PRICE BID' COLUMN WHEN BIDS ARE SOLICITED IN UNITS OF EACH, FOOT, POUND, ETC. ENTER ONLY A TOTAL PRICE FOR THE LOT IN THE 'TOTAL PRICE BID' COLUMN WHEN BIDS ARE SOLICITED BY THE LOT."

THE DEFENSE LOGISTICS SERVICES CENTER PAMPHLET ENTITLED SALE BY REFERENCE, FEBRUARY 1971, WAS INCORPORATED BY REFERENCE. PARAGRAPH 3, PART 2 OF THAT DOCUMENT PROVIDES IN PART:

" *** HOWEVER, UNLESS THE INVITATION OTHERWISE PROVIDES, A BID COVERING ANY LISTED ITEM MUST BE SUBMITTED ON THE BASIS OF THE UNIT SPECIFIED FOR THAT ITEM AND MUST COVER THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM."

THE RECORD SHOWS THAT IN RESPONSE TO THE IFB, THE FAIR RADIO SALES COMPANY SUBMITTED A UNIT PRICE OF $18.88 AND A TOTAL PRICE OF $1,789.20 AS ITS BID ON ITEM 216. REVIEW OF THE BID REVEALED THAT THE UNIT AND EXTENDED PRICES WERE NOT COMPATIBLE WITH THE ADVERTISED QUANTITY OF 90, SINCE THE STATED UNIT PRICE MULTIPLIED BY 90 WOULD RESULT IN A TOTAL BID PRICE OF $1,699.20. A TELEPHONE REQUEST TO FAIR RADIO SALES FOR BID VERIFICATION BROUGHT ITS ALLEGATION, CONFIRMED BY LETTER DATED JANUARY 10, 1972, THAT ITS TOTAL BID PRICE FOR ITEM 216 WAS INCORRECT, AND THAT THE UNIT BID PRICE WAS THE CORRECT AND PROPER BID. IN RESPONSE TO THE REQUEST OF THE SALES CONTRACTING OFFICER, THE COMPANY SUBMITTED ITS WORKSHEET, A COPY OF PAGE 26 FROM THE SALES INVITATION COVERING ITEMS 215 THROUGH 228, WITH NOTATIONS THEREON OF ITS INTENDED BID PRICES. NO PRICE ENTRY APPEARS ADJACENT TO THE DESCRIPTION OF ITEM 216 BUT A PRICE ENTRY DOES APPEAR ADJACENT TO THE DESCRIPTION OF ITEM 215. AT THE FOOT OF PAGE 26 ARE TWO COMPUTATIONS. ONE IS A MULTIPLICATION OF 5 X 78.90 WITH A PRODUCT OF 394.50. THE 78.90 AND 394.50 AMOUNTS ARE THE UNIT PRICE AND THE TOTAL PRICE STATED IN THE BID FOR ITEM 215, CONSISTING OF 5 UNITS. THE OTHER CALCULATION IS AS FOLLOWS:

"18.88 X 9 1789.20"

FROM THE LATTER CALCULATION, IT IS APPARENT THAT THE PRODUCT OF 9 X 18.88 WAS MULTIPLIED BY 10 SO THAT THE TOTAL IS BASED ON 90 UNITS, THE NUMBER ADVERTISED IN ITEM 216. BASED ON THE FOREGOING, IT IS OBVIOUS THAT THE UNIT PRICE OF $78.90 IS APPLICABLE TO ITEM 215; THAT THE UNIT PRICE OF $18.88 IS APPLICABLE TO ITEM 216; AND THAT THE ERROR ON ITEM 216 OCCURRED IN THE MULTIPLICATION OF 18.88 X 9.

THE RECORD INDICATES THAT THE QUESTION WHETHER FAIR RADIO SALES SHOULD BE PERMITTED TO CORRECT ITS TOTAL BID PRICE FOR ITEM 216 WAS SUBMITTED TO COUNSEL, DEFENSE LOGISTICS SERVICES CENTER (DLSC) FOR DETERMINATION. ALTHOUGH IN THE STATEMENT OF FACTS AND RECOMMENDATION DATED JANUARY 13, 1972, THE SALES CONTRACTING OFFICER RECOMMENDED THAT FAIR RADIO SALES BE PERMITTED TO CORRECT ITS TOTAL BID PRICE ON ITEM 216 FROM $1,789.20 TO $1,699.20, THE ASSISTANT COUNSEL, DLSC, ADVISED THE SALES CONTRACTING OFFICER THAT HE HAD DETERMINED THAT WHILE THERE IS CLEAR AND CONVINCING EVIDENCE OF AN ERROR IN THE BID, EVIDENCE AS TO THE BID ACTUALLY INTENDED IS NOT CLEAR AND CONVINCING. THE ASSISTANT COUNSEL CONCLUDED THAT FAIR RADIO SALES MAY NOT BE PERMITTED TO CORRECT THE BID BUT THAT IT COULD WITHDRAW THE BID ON THAT ITEM.

IN A REPORT DATED MARCH 1, 1972, COUNSEL, DLSC, STATED THAT IN VIEW OF THE PROXIMITY OF THE BIDS IN THIS CASE, THE ERRONEOUS MARKET APPRAISAL AND THE FACT THAT THE TOTAL BID WAS AN EXACT MULTIPLE OF A UNIT PRICE OF $19.88, IT WAS THE OPINION OF HIS OFFICE THAT THE EVIDENCE OF THE BID ACTUALLY INTENDED DID NOT MEET THE BURDEN OF PROOF CONTEMPLATED BY OUR DECISION B-172909 DATED JULY 1, 1971. ALSO, COUNSEL REFERS TO THAT PART OF OUR DECISION B-166748 DATED MAY 14, 1969, REPORTED IN 48 COMP. GEN. 748 (1969), IN WHICH WE STATED AT PAGE 750, TO THE EFFECT, "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."

WE DO NOT AGREE THAT THE EVIDENCE SUBMITTED BY FAIR RADIO SALES WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT CORRECTION OF THE COMPANY'S BID ON ITEM 216. WHILE IT IS TRUE THAT THE TOTAL BID PRICE FOR ITEM 216 WAS AN EXACT MULTIPLE OF A UNIT PRICE OF $19.88, WE BELIEVE THAT THE COMPANY'S WORKSHEET ESTABLISHES THAT THE COMPANY'S INTENDED UNIT PRICE FOR ITEM 216 WAS $18.88. WE ALSO ARE OF THE OPINION THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WOULD NOT BE ADVERSELY AFFECTED BY PERMITTING CORRECTION OF THE BID OF FAIR RADIO SALES IN THIS CASE, PARTICULARLY SINCE IT DOES NOT DISPLACE A HIGHER BIDDER ON ITEM 216.

IN THE REPORT OF FEBRUARY 24, 1972, THE SALES CONTRACTING OFFICER STATES THAT UPON RECEIPT OF THE DETERMINATION OF COUNSEL, DLSC, THAT CORRECTION OF THE BID OF FAIR RADIO SALES MAY NOT BE ALLOWED, HE REJECTED ALL OTHER BIDS ON ITEM 216 BECAUSE THE DEPOSITS HAD BEEN RETURNED TO THE BIDDERS AND THAT THE PROPERTY COVERED BY ITEM 216 IS STILL INTACT.

ACCORDINGLY, IN OUR OPINION, THE BID OF FAIR RADIO SALES SHOULD BE CORRECTED TO REFLECT AN EXTENDED PRICE OF $1,699.20.