B-182026, MAR 6, 1975

B-182026: Mar 6, 1975

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FAILED TO PRESENT CLEAR AND CONVINCING EVIDENCE OF ALLEGED INTENDED BID OR THAT INTENDED BID WOULD HAVE BEEN LOWEST. THERE WAS NO OBLIGATION TO GIVE BIDDER OPPORTUNITY TO ACCEPT AWARD AT ORIGINAL BID PRICE OR WITHDRAW BID. THE IFB WAS FOR A QUANTITY OF 7. BIDS WERE OPENED JUNE 10. ALLEGED A MISTAKE IN THE BID PRICE STATING THAT THE CORRECT UNIT BID PRICE SHOULD HAVE BEEN $4.76. ENCLOSED WITH THE LETTER WERE ALLEGEDLY CONTEMPORANEOUS DOCUMENTS CONSISTING OF A BID WORKSHEET. WAS SUBMITTED AS EVIDENCE. THE ONLY REFERENCE TO A PRICE OF $4.76 SHOWN ON THE WORKSHEET IS THE PENCILLED NOTATION 'IF WE BID 4.76 .34C/FT'. IT IS NOT ASCERTAINABLE FROM THE WORKSHEET. EXACTLY HOW THE PRICE OF $4.76 WAS ARRIVED AT.

B-182026, MAR 6, 1975

WHERE LOW BIDDER WHO ALLEGES MISTAKE IN BID BEFORE AWARD, FAILED TO PRESENT CLEAR AND CONVINCING EVIDENCE OF ALLEGED INTENDED BID OR THAT INTENDED BID WOULD HAVE BEEN LOWEST, AND FAILED TO INDICATE WILLINGNESS TO ACCEPT AWARD AT ORIGINAL BID PRICE BEFORE AWARD, THERE WAS NO OBLIGATION TO GIVE BIDDER OPPORTUNITY TO ACCEPT AWARD AT ORIGINAL BID PRICE OR WITHDRAW BID.

TELEDYNE MCCORMICK SELPH:

THE SUBJECT BID PROTEST CONCERNS INVITATION FOR BIDS (IFB) NO. N00164 74- B-0249 ISSUED BY THE UNITED STATES NAVAL AMMUNITION DEPOT, CRANE, INDIANA, ON MAY 10, 1974. TELEDYNE MCCORMICK SELPH (TELEDYNE) PROTESTED THE AWARD OF THE CONTRACT UNDER THE IFB TO JET RESEARCH, INC. THE IFB WAS FOR A QUANTITY OF 7,200 LINEAR SHAPE CHARGES (LSC).

BIDS WERE OPENED JUNE 10, 1974, WITH THE FOLLOWING RESULTS:

PER UNIT TOTAL

TELEDYNE 3.76 $27,072.00

JET RESEARCH 5.09 36,648.00

ENSIGN BECKFORD 7.11 51,192.00

EXPLOSIVE TECHNOLOGY 9.99 71,928.00

BECAUSE THE ITEMS HAD PREVIOUSLY BEEN PROCURED AT $4.89 PER UNIT AND THE SUBSTANTIAL DIFFERENCE BETWEEN THE LOW AND SECOND LOW BIDS, THE NAVY SUSPECTED THAT AN ERROR HAD BEEN MADE AND REQUESTED VERIFICATION FROM TELEDYNE ON JUNE 10, 1974.

IN A TELEPHONE CONVERSATION ON THE SAME DAY WITH THE CONTRACTING OFFICER, TELEDYNE VERIFIED THE $3.76 BID PRICE. LATER THAT DAY, HOWEVER, TELEDYNE, IN ANOTHER TELEPHONE CONVERSATION, ALLEGED A MISTAKE IN THE BID PRICE STATING THAT THE CORRECT UNIT BID PRICE SHOULD HAVE BEEN $4.76. WE NOTE HERE THAT, AT THE $4.76 BID PRICE, TELEDYNE WOULD STILL BE THE LOW BIDDER. THE FOLLOWING DAY, JUNE 11, 1974, TELEDYNE CONFIRMED THE LATTER TELEPHONE CONVERSATION BY LETTER. ENCLOSED WITH THE LETTER WERE ALLEGEDLY CONTEMPORANEOUS DOCUMENTS CONSISTING OF A BID WORKSHEET, INTERNAL MEMORANDA, AND AFFIDAVITS SIGNED BY TELEDYNE OFFICERS AND EMPLOYEES WHICH SOUGHT TO EXPLAIN HOW THE ERROR OCCURRED AND ESTABLISH THE INTENDED UNIT PRICE. SUBSEQUENTLY, IN A JUNE 17, 1974, TELEGRAM TO THE NAVY, TELEDYNE REQUESTED CORRECTION OF ITS BID TO $4.76.

AFTER A REVIEW OF THE DOCUMENTARY EVIDENCE, THE NAVY MADE THE FOLLOWING FINDINGS AND DETERMINATION (QUOTED IN PERTINENT PART) DATED AUGUST 7, 1974:

"THE BIDDER'S ORIGINAL WORKSHEET, AN INK TRANSPARENCY SIGNED BY EXECUTIVE VICE PRESIDENT R.C. ALLEN AND CONTROLLER W.W. WINANS, WAS SUBMITTED AS EVIDENCE. THE ONLY REFERENCE TO A PRICE OF $4.76 SHOWN ON THE WORKSHEET IS THE PENCILLED NOTATION 'IF WE BID 4.76 .34C/FT'. HOWEVER, IT IS NOT ASCERTAINABLE FROM THE WORKSHEET, NOR FROM THE BIDDER'S EXPLANATION, EXACTLY HOW THE PRICE OF $4.76 WAS ARRIVED AT. THE BIDDER CLAIMS (AND THE WORKSHEET TENDS TO SUPPORT) THAT HIS ORIGINAL ESTIMATE WAS $5.87 PER UNIT, BASED ON 190% OVERHEAD AND 35% GENERAL AND ADMINISTRATIVE (G&A) EXPENSES, BUT THAT IT WAS DECIDED THAT SUCH PRICE WOULD NOT RESULT IN AWARD OF A CONTRACT. THE WORKSHEET ALSO SHOWS COMPUTATIONS TOTALING $4.61 BASED ON 125% OVERHEAD AND 30% G&A.

"IN A FURTHER ATTEMPT TO SUPPORT ITS ALLEGATION, THE BIDDER SUBMITTED A COPY OF A MEMORANDUM DATED 31 MAY 1974, FROM DIRECTOR OF ENGINEERING R.W. INGHAM TO VICE PRESIDENT DEAN CURRIER, RELATIVE TO 'PROPOSAL B-700 74- 380'. (THE SOLICITATION IN QUESTION IS N00164-74-B-0249). THE MEMORANDUM STATES 'PER OUR DISCUSSION, THE BID PRICE PER LSC IS $4.76 EA. ... THIS IS 'SECRET' & NOT TO BE DISCLOSED, READ & DESTROY'. ALLEGEDLY, THE MEMORANDUM WAS RETAINED BY MR. CURRIER 'TO RESTRICT FURTHER DISCLOSURE, AND THE $4.76 BID PRICE WAS THEN DISCLOSED ONLY TO TMC/S CONTRACTS MANAGER, C.B. FISETTE'. MR. FISETTE ALLEGEDLY WROTE THE BID PRICE ON A BLACKBOARD IN THE FOLLOWING MANNER: 'B-700-74-476', THE LAST THREE DIGITS SUPPOSEDLY DESIGNATING THE UNIT PRICE. THE BIDDER CLAIMS THAT MR. FISETTE THEN SHOWED THE NUMBER TO R.F. MULLEN, SENIOR CONTRACTS MANAGER WHO SIGNED THE BID SUBMITTED, ASKED HIM TO MEMORIZE IT, THEN ERASED THE NUMBERS FROM THE BLACKBOARD. IT WAS FURTHER ALLEGED THAT MR. MULLEN APPARENTLY MIS- READ THE NUMBER AND ENTERED A PRICE OF $3.76 ON THE BID INSTEAD OF $4.76. THE BIDDER REQUESTED CORRECTION OF HIS BID ON ITEMS 0001AA AND 0001AB TO $4.76 PER UNIT.

"THE CONTRACTING OFFICER STATED HIS OPINION THAT TELEDYNE MCCORMICK SELPH SUBMITTED AN ERRONEOUS BID AND HE RECOMMENDED THAT THE BID BE DISREGARDED.

"DETERMINATION

"BASED ON THE FOREGOING FACTS AND EVIDENCE, IT IS HEREBY DETERMINED THAT TELEDYNE MCCORMICK SELPH SUBMITTED AN ERRONEOUS BID. HOWEVER, CLEAR AND CONVINCING EVIDENCE AS TO WHAT THE BID WOULD HAVE BEEN EXCEPT FOR THE ERROR HAS NOT BEEN FURNISHED. ACCORDINGLY, THE BID SHALL NOT BE CORRECTED BUT SHALL BE DISREGARDED IN ITS ENTIRETY."

THE NAVY NOTIFIED TELEDYNE BY TELEPHONE ON AUGUST 7, 1974, THAT ITS REQUEST FOR CORRECTION HAD BEEN DENIED. SOME TIME LATER ON AUGUST 7, 1974, THE CONTRACT WAS AWARDED TO JET RESEARCH. ON AUGUST 9, 1974, TELEDYNE WAS INFORMED THAT THE CONTRACT HAD BEEN AWARDED TO JET RESEARCH. TELEDYNE STATED AT THIS TIME THAT IT WOULD ACCEPT A CONTRACT AT THE ORIGINAL BID PRICE OF $3.76 PER UNIT.

TELEDYNE FILED A PROTEST WITH OUR OFFICE BY TELEGRAM DATED AUGUST 9, 1974.

COUNSEL FOR TELEDYNE ARGUES THAT, ONCE THE MISTAKE ISSUE HAD BEEN RAISED WITH THE BIDDER, THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2- 406.3 (1974 ED.) AND THE DECISIONS OF OUR OFFICE GAVE THE NAVY THE FOLLOWING THREE OPTIONS, NONE OF WHICH INCLUDED A UNILATERAL DISREGARD OF THE BID:

1. PERMIT WITHDRAWAL OF THE BID UPON A CLEAR AND CONVINCING SHOWING OF MISTAKE;

2. PERMIT CORRECTION OF THE BID UPON THE SUBMISSION OF CLEAR AND CONVINCING EVIDENCE THAT THE MISTAKEN BID WOULD STILL BE LOWEST IF CORRECTED; AND

3. PERMIT THE BIDDER TO STAND BY ITS ERRONEOUS BID AS SUBMITTED WHERE THE REQUISITE EVIDENCE DISCLOSES ONLY THAT A MISTAKE HAD BEEN MADE IN THE BID BUT NOT THE BID INTENDED.

TELEDYNE CITES THREE DECISIONS OF OUR OFFICE (B-165405, OCTOBER 24, 1968; B-168673, APRIL 7, 1970; AND MATTER OF ARKAY PRODUCTS CORPORATION, B- 181596, OCTOBER 22, 1974) FOR THE PROPOSITION THAT THE LOW BIDDER MUST BE GIVEN THE CLEAR CHOICE OF WITHDRAWING ITS BID FROM CONSIDERATION OR STANDING BY THE ORIGINAL BID PRICE. IN OTHER WORDS, WITHDRAWAL OF THE ORIGINAL BID IS PERMITTED, NOT REQUIRED, AND THE NAVY COULD NOT LEGALLY DISREGARD ITS BID, PARTICULARLY SINCE TELEDYNE ALWAYS INTENDED TO PERFORM AT ITS ORIGINAL BID PRICE.

TELEDYNE ASKS THAT WE ORDER THE CANCELLATION OF THE CONTRACT AWARD TO JET RESEARCH, EXAMINE THE VALIDITY OF ITS BID MISTAKE AND THE PROPRIETY OF CORRECTION, AND ORDER THE AWARD OF THE CONTRACT TO IT EITHER AT THE $3.76 OR $4.76 PRICE.

WE BEGIN BY EXAMINING TELEDYNE'S ALLEGATION THAT CORRECTION SHOULD HAVE BEEN ALLOWED, AS IT ALLEGEDLY CONCLUSIVELY ESTABLISHED THAT A $1.00 ERROR IN THE BID PRICE WAS MADE. IN 52 COMP. GEN. 706, 709 (1973), WE STATED THAT, IN ORDER TO PERMIT CORRECTION OF AN ALLEGED ERROR IN THE BID PRICE PRIOR TO AWARD OF THE CONTRACT, THE BIDDER MUST SUBMIT CLEAR AND CONVINCING EVIDENCE THAT AN ERROR HAS BEEN MADE, THE MANNER IN WHICH THE ERROR OCCURRED AND THE INTENDED BID PRICE. THIS STANDARD CLOSELY PARALLELS THE REQUIREMENTS OF ASPR SEC. 2-406.3(A)(2) (1974 ED.). WE WENT ON TO SAY THAT THE WEIGHT TO BE GIVEN SUCH EVIDENCE IS A QUESTION OF FACT TO BE CONSIDERED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF THE EVIDENCE WHOSE DECISION WILL NOT BE DISTURBED BY OUR OFFICE UNLESS IT IS WITHOUT REASONABLE BASIS. AFTER REVIEWING THE RECORD, WE FIND THE NAVY HAD A REASONABLE BASIS TO CONCLUDE THAT, WHILE IT WAS CLEAR THAT AN ERROR WAS MADE IN THE TELEDYNE BID, THE EVIDENCE WAS INSUFFICIENT TO SHOW THE INTENDED BID.

AS NOTED, SUPRA, TELEDYNE SUBMITTED AN ALLEGEDLY ORIGINAL BID WORKSHEET WHICH WAS SIGNED BY ITS EXECUTIVE VICE PRESIDENT AND CONTROLLER. AT NO PLACE ON THIS WORKSHEET DOES THE FIGURE $3.76 APPEAR AND NONE OF THE OTHER FIGURES SEEM TO BEAR ANY RELATIONSHIP TO THE $4.76 PRICE. ADDITIONALLY, THE ONLY TWO REFERENCES TO THE $4.76 PRICE ON THE WORKSHEET ARE AS FOLLOWS:

"(IF WE BID 4.76 34[/FC) (11.5[/FT)"

"OK TO BID $4.76

R.C. ALLEN, 5/22/74"

TELEDYNE CLAIMS, AND THE WORKSHEET TENDS TO SUPPORT, THAT A $5.87 UNIT PRICE APPEARING ON THE WORKSHEET WAS BASED ON 190 PERCENT OVERHEAD AND 35 PERCENT GENERAL AND ADMINISTRATIVE EXPENSES. TELEDYNE FURTHER CLAIMS THAT $5.87 WAS ITS ORIGINAL ESTIMATE WHICH WAS DISCARDED WHEN IT WAS DECIDED THAT SUCH A PRICE WOULD NOT RESULT IN THE AWARD OF A CONTRACT.

HOWEVER, THE FIGURE $4.61 APPEARS ON THE WORKSHEET. APPARENTLY, THIS WAS THE UNIT PRICE BASED ON OTHER COMPUTATIONS THEREON REFLECTING 125 PERCENT OVERHEAD AND 30 PERCENT GENERAL AND ADMINISTRATIVE EXPENSES. THE RECORD IS DEVOID OF EXPLANATION AS TO WHY THIS FIGURE WAS DISREGARDED. EFFECT, WE HAVE THREE UNIT PRICE FIGURES APPEARING ON TELEDYNE'S WORKSHEET. ONE OF THESE FIGURES ($5.87) FOLLOWS THE COMPUTATIONS FROM WHICH IT WAS ALLEGEDLY DERIVED. ANOTHER ONE OF THESE FIGURES ($4.61) ALSO FOLLOWS THE COMPUTATIONS FROM WHICH IT APPARENTLY WAS DERIVED. THE THIRD UNIT PRICE FIGURE ($4.76), THE ALLEGED INTENDED BID PRICE, DOES NOT FOLLOW ANY COMPUTATIONS APPEARING ON THE WORKSHEET AND NO ADEQUATE CONTEMPORANEOUS EVIDENCE IS CONTAINED IN THE RECORD AS TO HOW IT WAS COMPUTED.

IN ADDITION, EVIDENCE SUBMITTED (SEE QUOTE FROM NAVY FINDINGS AND DETERMINATION, SUPRA) BY TELEDYNE ATTEMPTS TO EXPLAIN THE INTENDED PRICE OF $4.76 AND HOW THE ERROR OCCURRED. HOWEVER, WE CANNOT CONCLUDE THAT THE EVIDENCE, TAKEN AS A WHOLE, DETRACTS FROM THE REASONABLENESS OF THE NAVY'S DETERMINATION THAT TELEDYNE FAILED TO CLEARLY AND CONVINCINGLY ESTABLISH ITS INTENDED BID PRICE.

WE NEXT TURN TO THE HEART OF TELEDYNE'S COMPLAINT THAT THE NAVY COULD NOT LEGALLY DISREGARD ITS BID, BUT COULD ONLY PERMIT WITHDRAWAL. UNDER A SIMILAR FACTUAL PATTERN TO THE INSTANT MATTER, AN ALMOST IDENTICAL ALLEGATION WAS MADE TO OUR OFFICE IN 52 COMP. GEN., SUPRA, WHEREIN WE CONSTRUED REGULATIONS GOVERNING MISTAKEN BIDS CLOSELY AKIN TO THOSE CONTAINED IN THE ASPR. IN THAT DECISION WE CONCURRED WITH THE CONTRACTING AGENCY THAT THERE WAS NO OBLIGATION TO CONSIDER THE ORIGINAL MISTAKEN BID OR QUERY THE BIDDER AS TO ITS WILLINGNESS TO ACCEPT AN AWARD AT THE ORIGINAL BID PRICE, EVEN WHERE A REASONABLE REVIEW OF THE EVIDENCE SHOWED ITS INTENDED BID MIGHT VERY WELL HAVE BEEN CLEARLY LOWEST. THERE, AND AS TELEDYNE CORRECTLY POINTS OUT, OUR OFFICE REMARKED THAT IT HAS PERMITTED AWARD OF CONTRACTS AT THE ORIGINAL BUT MISTAKEN BID PRICE WHERE THE BIDDER HAS ESTABLISHED THAT AN ERROR HAS BEEN MADE IN THE BID, BUT NOT THE INTENDED BID PRICE. SEE B-165405, OCTOBER 24, 1968; AND MATTER OF ARKAY PRODUCTS CORPORATION, SUPRA. HOWEVER, THESE DECISIONS HAVE BEEN LIMITED TO THE SITUATION WHEREIN THE BIDDER HAS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT ITS CORRECTED BID WOULD HAVE BEEN LOWEST EVEN THOUGH THE INTENDED BID COULD NOT BE CLEARLY PROVEN FOR CORRECTION PURPOSES. SEE 42 COMP. GEN. 723 (1963). THE RATIONALE BEHIND THESE DECISIONS HAS BEEN THAT ALLOWING AWARD TO A BIDDER AT ITS MISTAKEN BID PRICE WHO COULD NOT CLEARLY PROVE EITHER ITS INTENDED BID PRICE OR THAT ITS BID WOULD BE LOWEST WOULD BE "CONTRARY TO THE PRINCIPLES OF COMPETITIVE BIDDING AND DETRIMENTAL TO THE PURPOSES SOUGHT TO BE ACHIEVED BY THE FEDERAL PROCUREMENT STATUTES." HOWEVER, IF A BIDDER COULD CLEARLY PROVE EITHER ITS INTENDED BID PRICE OR THAT ITS UNPROVEN INTENDED BID WOULD BE LOWEST, NO PREJUDICE WOULD RESULT TO OTHER BIDDERS AND THE INTEGRITY OF THE FEDERAL PROCUREMENT SYSTEM WOULD BE PRESERVED. SEE 42 COMP. GEN. 723, SUPRA, AT 725.

WE CONCLUDED ABOVE THAT, BASED ON A REVIEW OF THE DOCUMENTARY EVIDENCE SUBMITTED BY TELEDYNE, IT DID NOT ESTABLISH BY CLEAR AND CONVINCING EVIDENCE ITS INTENDED BID PRICE.

MOREOVER, BASED ON OUR DISCUSSION ABOVE, WE SIMILARLY CANNOT CONCLUDE THAT TELEDYNE HAS CLEARLY AND CONVINCINGLY SHOWN THAT ITS INTENDED BID WOULD HAVE BEEN LOWEST. IN THIS REGARD, TWO OF THE THREE UNIT PRICES APPEARING ON THE WORKSHEET ARE CLEARLY BELOW ALL OTHER UNIT PRICES BID. THE THIRD PRICE, HOWEVER, IS HIGHER THAN THE UNIT PRICE BID BY JET RESEARCH, THE SECOND LOW BIDDER.

BECAUSE OF THIS, THE THREE DECISIONS OF OUR OFFICE CITED BY TELEDYNE CAN BE DISTINGUISHED. IN ALL THREE DECISIONS, EVIDENCE CLEARLY EXISTED ON THE RECORD TO INDICATE THAT THE UNPROVEN INTENDED BIDS WOULD BE LOW. FOR EXAMPLE, IN MATTER OF ARKAY PRODUCTS CORPORATION, SUPRA, THE DEFENSE PROPERTY DISPOSAL SERVICE NOTED "*** THAT THE BID WOULD BE HIGH (FOR PURPOSES OF THE SALE OF PROPERTY DISPOSAL) WHETHER CORRECTED OR NOT"; IN B -168673, SUPRA, WE STATED THAT "THE RECORD INDICATES THAT HAD YOUR BID BEEN CORRECTED IT WOULD STILL BE THE LOWER BID."

FURTHER, EVEN IF WE ASSUME ARGUENDO THAT TELEDYNE HAD SHOWN CLEARLY AND CONVINCINGLY THAT ITS BIDS WOULD HAVE BEEN LOWEST, THE NAVY ACTION WOULD NOT BE SUBJECT TO QUESTION.

IN 52 COMP. GEN., SUPRA, WE QUOTED THE FOLLOWING PERTINENT PASSAGE FROM B -164910, OCTOBER 25, 1968, WHERE WE HELD:

"IT IS TRUE THAT IN CERTAIN CASES WHERE A BIDDER HAS ESTABLISHED THAT AN ERROR HAD BEEN MADE IN ITS BID BUT NOT ITS INTENDED BID PRICE, OUR OFFICE HAS AUTHORIZED ACCEPTANCE OF ITS ORIGINAL BID ON THE BASIS THAT IT WAS THE LOWEST BID AND, THEREFORE, NOT PREJUDICIAL TO OTHER BIDDERS. IT SHOULD BE NOTED THAT IN THOSE CASES, THE BIDDER HAD ADVISED THE CONTRACTING OFFICER THAT IF HE COULD NOT PERMIT CORRECTION OF THE BID THAT THE BID BE CONSIDERED FOR AWARD AS ORIGINALLY SUBMITTED. ***" IN THE INSTANT CASE, TELEDYNE ACKNOWLEDGES IN ITS PROTEST SUBMISSIONS, AND THE RECORD CONFIRMS, THAT AT NO TIME PRIOR TO THE AWARD OF THE CONTRACT DID TELEDYNE AFFIRMATIVELY AND CLEARLY INDICATE TO THE NAVY ITS WILLINGNESS TO ACCEPT THE CONTRACT AT THE ORIGINAL BID PRICE IF CORRECTION OF THE BID WAS DENIED. THOUGH TELEDYNE ARGUES THAT SUCH AN INDICATION IS IRRELEVANT AND UNNECESSARY, WE SEE NO BASIS TO ALTER THE PRECEDENT ESTABLISHED BY OUR PRIOR DECISIONS.

SIGNIFICANTLY, IN THE THREE DECISIONS CITED BY TELEDYNE AND DISTINGUISHED, SUPRA, THE FACTS CLEARLY REFLECT THAT THE BIDDERS MADE KNOWN THEIR WILLINGNESS TO ACCEPT THE CONTRACT AWARD AT THE ORIGINAL BID PRICE IF CORRECTION WAS NOT PERMITTED. FOR EXAMPLE, IN B-165405, SUPRA, IN A LETTER ALLEGING ERROR AND ASKING FOR CORRECTION, THE AGENCY STATED THAT THE BIDDER "*** DESIRES AWARD OF THE CONTRACT AT THE PRICE QUOTED ON ITS BID IN THE EVENT THE DEPARTMENT CANNOT PERMIT CORRECTION OF THE BID." FURTHERMORE, THE RECORD HERE PRESENTS A STRONGER CASE IN SUPPORT OF OUR CONCLUSION SINCE, THE RECORD IN 52 COMP. GEN., SUPRA, CONTAINED A CONCEIVABLY REASONABLE EXPLANATION TO SHOW THAT THE UNPROVEN INTENDED BID MIGHT VERY WELL HAVE BEEN LOW.

FINALLY, BY IMPLICATION, TELEDYNE RAISES THE SPECTER OF FRAUD BY UNSCRUPULOUS BIDDERS IF THE NAVY'S POSITION IS UPHELD SINCE "*** ALL A BIDDER NEED DO TO BE FREE OF THE OBLIGATION OF PERFORMING AT THE BID PRICE IS TO CLAIM MISTAKE BUT PROVIDE CLEARLY INSUFFICIENT EVIDENCE."

WE THINK THAT TELEDYNE'S FEARS ARE BASED ON A MISCONCEPTION. DISCUSSED, SUPRA, OUR DECISIONS HOLD THAT A BIDDER CLAIMING ERROR MAY BE AWARDED A CONTRACT AT THE ORIGINAL BID PRICE EVEN IF HE CANNOT CLEARLY PROVE HIS INTENDED BID PRICE WHERE HE CLEARLY ESTABLISHES THAT HE WOULD BE LOW BIDDER AND INDICATES TO THE APPROPRIATE AUTHORITY IN A TIMELY MANNER HIS WILLINGNESS TO PERFORM AT THE LOWER BID PRICE IF CORRECTION IS DENIED. FURTHER, ASPR SEC. 2-406.3(A)(4) (1974 ED.) PROVIDES A SAFEGUARD WHEREIN UNDER CERTAIN CIRCUMSTANCES, A DETERMINATION MAY BE MADE REQUIRING THAT THE BID BE CONSIDERED FOR AWARD IN THE FORM SUBMITTED. AS WE STATED IN B-173901, APRIL 12, 1974, "IN ANY EVENT, IF AN UNDESIRABLE PRACTICE DEVELOPS IN SUCH RESPECT, IT CAN BE PROMPTLY CORRECTED BY APPROPRIATE REVISIONS IN PERTINENT REGULATIONS."

WE BELIEVE THAT THIS STATEMENT IS RESPONSIVE TO TELEDYNE'S FEARS.

IT FOLLOWS, THEREFORE, THAT THE PROTEST MUST BE DENIED.