B-181528, SEP 16, 1974

B-181528: Sep 16, 1974

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INSERT PRICE AS IN NATURE OF CORRECTION OF A MISTAKE IN BID SINCE BID WAS NOT RESPONSIVE AND BID MISTAKE PROCEDURES ARE INAPPICABLE. 40 COMP. WHERE IFB BIDDING TERMS WERE AMBIGUOUS RESULTING IN FAILURE OF TWO OF THREE BIDDERS TO BID ON ADDITIVE CONTRACTING OFFICER PROPERLY CANCELED IFB AND READVERTISED PROCUREMENT TO OBTAIN RESPONSIVE BIDS MEETING NEW REQUIREMENTS. FOR THE CONSTRUCTION OF A LAMPS WEAPONS SYSTEMS TRAINER FACILITY WAS CANCELED PURSUANT TO PARAGRAPH 2 404.1(B)(1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) BASED ON THE CONTRACTING OFFICER'S DETERMINATION THAT THE BIDDING SPECIFICATIONS WERE INADEQUATE. AWARD SHOULD HAVE BEEN MADE TO IT. WAS AMENDED ON MAY 16 TO INCLUDE AN ADDITIVE ITEM AND A NEW DAVIS-BACON WAGE SCHEDULE.

B-181528, SEP 16, 1974

1. PROTESTER WHICH FAILED TO LIST SEPARATE PRICE FOR BASE BID AND ADDITIVE ITEM AS CONTEMPLATED BY AMENDMENT TO IFB MAY NOT, AFTER OPENING, INSERT PRICE AS IN NATURE OF CORRECTION OF A MISTAKE IN BID SINCE BID WAS NOT RESPONSIVE AND BID MISTAKE PROCEDURES ARE INAPPICABLE. 40 COMP. GEN. 432, (1961); 50 ID 852 (1971). 2. WHERE IFB BIDDING TERMS WERE AMBIGUOUS RESULTING IN FAILURE OF TWO OF THREE BIDDERS TO BID ON ADDITIVE CONTRACTING OFFICER PROPERLY CANCELED IFB AND READVERTISED PROCUREMENT TO OBTAIN RESPONSIVE BIDS MEETING NEW REQUIREMENTS.

R. C. HUDSON & ASSOCIATES:

INVITATION FOR BIDS (IFB) NO. N62470-74-B-1068 ISSUED ON MAY 2, 1974, BY THE DEPARTMENT OF THE NAVY, ATLANTIC DIVISION , NAVAL FACILITIES ENGINEERING COMMAND (NAVY), FOR THE CONSTRUCTION OF A LAMPS WEAPONS SYSTEMS TRAINER FACILITY WAS CANCELED PURSUANT TO PARAGRAPH 2 404.1(B)(1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) BASED ON THE CONTRACTING OFFICER'S DETERMINATION THAT THE BIDDING SPECIFICATIONS WERE INADEQUATE.

R.C. HUDSON & ASSOCIATES (HUDSON) PROTESTS THE CANCELLATION OF THE IFB ON THE GROUND THAT IT SUBMITTED ITS BID IN STRICT ACCORDANCE WITH THE BIDDING INSTRUCTIONS, AND ASSERTS THAT, SINCE IT OFFERED THE LOWEST RESPONSIVE BID, AWARD SHOULD HAVE BEEN MADE TO IT.

THE IFB, INSOFAR AS PERTINENT HERE, WAS AMENDED ON MAY 16 TO INCLUDE AN ADDITIVE ITEM AND A NEW DAVIS-BACON WAGE SCHEDULE.

WHEN AMENDMENT NO. 1 WAS ISSUED TO INCLUDE THE ADDITIVE ITEM THE BID INSTRUCTIONS STATED THAT AWARD - SUBJECT TO FUND AVAILABILITY - WOULD BE MADE TO THE BIDDER OFFERING THE LOWEST AGGREGATE BID PRICE FOR THE BASE BID ITEM, PLUS THE ADDITIVE BID PRICE. BIDDERS WERE REQUIRED TO SEPARATELY LIST A PRICE FOR THE BASE BID AND THE ADDITIVE ITEM OF AMENDMENT NO. 1. DESPITE THIS REQUIREMENT, THE NAVY INADVERTENTLY FAILED TO REVISE THE ORIGINAL BID FORM WHEN AMENDMENT NO. 1 WAS ISSUED TO PROVIDE SPACE FOR BIDDERS TO LIST PRICES FOR BOTH THE BASE AND ADDITIVE ITEMS.

UPON THE OPENING OF BIDS ON MAY 30, 1974, THE FOLLOWING BIDS WERE RECEIVED:

BASE BID ADDITIVE ITEM NO. 1

DEFOREST CONSTRUCTION CO. (DEFOREST) $233,798 $14,293

HUDSON 234,000 -

SOUTHERN METAL PRODUCTS (SOUTHERN METAL) 282,664 -

THE CONTRACTING OFFICER NOTICED THE DISPARATE PATTERN IN THE THREE BIDS SUBMITTED AND ATTRIBUTED THIS TO THE OBVIOUS LACK OF CLARITY IN AND CONTINUITY BETWEEN THE ORIGINAL BID FORMS AND INSTRUCTIONS PROVIDED IN THE AMENDMENT. HUDSON AND SOUTHERN METAL BOTH ACKNOWLEDGED AMENDMENT NO. 1, BUT FAILED, AS NOTED ABOVE, TO SEPARATELY LIST A BID PRICE FOR THE ADDITIVE ITEM. DEFOREST TYPED IN THE ADDITIVE ITEM ON THE BID FORM AND INSERTED A PRICE BUT ITS AGGREGATE BID PRICE EXCEEDED THE GOVERNMENT FUNDS AVAILABLE FOR THE PROJECT.

THE CONTRACTING OFFICER DETERMINED THAT, IN VIEW OF THE COMPLICATIONS CAUSED BY THE DEFECTS IN THE BID FORMS AND INSTRUCTIONS, THE IFB SHOULD BE CANCELED AND READVERTISED WITH ADDITIVE ITEMS CLEARLY INSERTED IN THE NEW BID FORMS.

HUDSON CONTENDS THAT ITS BASE BID PRICE OF $234,000 INCLUDED ITS PRICE FOR THE ADDITIVE ITEM OF AMENDMENT NO. 1. IT SUBMITTED WORKSHEETS IN SUPPORT OF ITS POSITION.

THE NAVY HAS TAKEN THE POSITION THAT IF IT COULD BE ASCERTAINED THAT HUDSON'S BASE BID PRICE DID, IN FACT, INCLUDE A PRICE FOR THE ADDITIVE ITEM, ITS BID COULD BE CORRECTED AND CONSIDERED FOR AWARD. THE CONTRACTING OFFICER CONSIDERED THE WORKSHEETS SUBMITTED BY HUDSON AS SUBSTANTIATING THE FACT THAT THE ADDITIVE ITEM WAS INCLUDED IN THE BASE BID PRICE, BUT CONCLUDED THAT SINCE THE WORKSHEETS DID NOT PROVIDE CLEAR AND CONVINCING PROOF, THEY WOULD NOT DEFINITIVELY DISPOSE OF THE ISSUE.

FOR DIFFERENT REASONS WE REACH THE SAME RESULT. THE QUESTION WHETHER THE ADDITIVE ITEM IS INCLUDED IN HUDSON'S BASE BID PRICE MAY NOT BE RESOLVED UNDER THE BID CORRECTION PROCEDURES OF PARAGRAPH 2-406.3 OF ASPR SINCE THERE WAS NO MISTAKE IN BID APPARENT ON THE FACE OF THE BIDDING DOCUMENT; RATHER, HUDSON'S BID WAS NONRESPONSIVE TO THE ADDITIVE REQUIREMENT.

IN PREVIOUS DECISIONS, WE HAVE HELD THAT AN ALLEGATION OF ERROR IS FOR CONSIDERATION ONLY WHERE THE BID IS RESPONSIVE AND OTHERWISE PROPER FOR ACCEPTANCE. SEE 40 COMP. GEN. 432, 435 (1961). SINCE HUDSON DID NOT SEPARATELY BID THE ADDITIVE ITEM AS REQUIRED BY THE AMENDMENT TO THE IFB, ITS BID WAS NONRESPONSIVE AND, THEREFORE, IT COULD NOT BE CONSIDERED FOR CORRECTION ON ACCOUNT OF ERROR. SEE 50 COMP. GEN. 852, 854-855 (1971).

WE HAVE CONSISTENTLY HELD THAT AN IFB DOES NOT IMPART ANY OBLIGATION ON THE GOVERNMENT TO ACCEPT ANY OF THE BIDS, AND THAT ALL BIDS MAY BE REJECTED UNDER VARIOUS CIRCUMSTANCES, INCLUDING THOSE INSTANCES WHERE IT IS DETERMINED TO BE IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO; WHERE BIDS ARE NONRESPONSIVE, OR WHERE THE SPECIFICATIONS ARE INADEQUATE OR AMBIGUOUS TO SUCH EXTENT AS TO PREVENT A BIDDER FROM SUBMITTING A RESPONSIVE BID. 50 COMP. GEN. 464, 469-470 (1970).

UNDER ASPR 2-404.1(B)(I) AND (VIII) THE CONTRACTING OFFICER IS AUTHORIZED TO REJECT ALL BIDS AFTER OPENING AND PRIOR TO AWARD WHERE HE DETERMINES, AS HERE, THAT THE PARTICULAR INVITATION INCLUDES INADEQUATE OR AMBIGUOUS SPECIFICATIONS OR WHERE IT IS IN THE BEST INTERESTS OF THE GOVERNMENT TO DO SO. FROM THE FOREGOING, IT IS CLEAR THAT THE REJECTION OF ALL BIDS UNDER THE ORIGINAL IFB, WHICH RESULTED IN UNEQUAL BIDDING BETWEEN BIDDERS, WAS A PROPER EXERCISE OF PROCUREMENT RESPONSIBILITY. ON THE RECORD, OUR OFFICE WILL NOT OBJECT TO THE ACTIONS TAKEN. 50 COMP. GEN. 464 (1970).

WE NOTE THAT THE NEW IFB, AS AMENDED, PROVIDED FOR BIDS ON THE BASE ITEM, ADDITIVE NO. 1 (PREVIOUSLY COVERED BY THE AMENDMENT TO THE CANCELED IFB) AND AN ADDITIVE ITEM NO. 2 (NOT PREVIOUSLY SOLICITED). THUS, THE BID OF HUDSON - WHO FAILED TO BID UNDER THE NEW IFB - COVERING ONLY THE BASE BID AND ALLEGEDLY THE ADDITIVE ITEM NO. 1, REPRESENTED AT THE MOST AN OFFER TO PERFORM BUT A PORTION OF THE WORK CONTEMPLATED BY THE REISSUED IFB.

ACCORDINGLY, THE PROTEST IS DENIED.