B-209882, MAY 23, 1983

B-209882: May 23, 1983

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FEDERAL BID CORRECTION PROCEDURES HAVE A NUMBER OF SAFEGUARDS INTENDED TO AVOID. THE CLOSER AN ASSERTED INTENDED BID IS TO THE NEXT LOW BID. CORRECTION IS OFTEN DISALLOWED WHEN THE CORRECTED BID WOULD COME TOO CLOSE TO THE NEXT LOW BID. AUTOMATIC ELIMINATION OF ITS BID FROM CONSIDERATION CAN BE VIEWED AS UNDULY HARSH WHERE THERE IS ADEQUATE EVIDENCE TO SUPPORT CORRECTION. PARTICULARLY WHERE THERE IS A WIDE DISPARITY BETWEEN THE CORRECTED LOW BID AND THE NEXT BID. WHEN THE MISTAKE IS APPARENT ON THE FACE OF THE BID. SINCE THIS IS A MATTER OF CONCERN TO YOUR MEMBERS.

B-209882, MAY 23, 1983

PRECIS-UNAVAILABLE

THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA:

YOUR LETTER OF NOVEMBER 17, 1982, ADVISES OF YOUR CONCERN THAT THE PRESENT FEDERAL POLICY PERMITTING CORRECTION OF MISTAKES IN BIDS ALLEGED BEFORE AWARD MAY BE SUBJECT TO ABUSE. YOU RECOMMEND CONSIDERATION OF AN ALTERNATIVE POLICY ADOPTED BY YOUR ASSOCIATION AND OTHERS PERMITTING WITHDRAWAL OF A LOW BID, BUT NOT CORRECTION, WHERE A MISTAKE HAS BEEN ALLEGED AND PROVEN.

ALTHOUGH THE POSSIBILITY OF ABUSE EXISTS, FEDERAL BID CORRECTION PROCEDURES HAVE A NUMBER OF SAFEGUARDS INTENDED TO AVOID, OR AT LEAST MINIMIZE, ABUSES. SPECIFICALLY, THE PROCURING AGENCIES MAY EXERCISE THEIR AUTHORITY TO PERMIT CORRECTION ONLY WHERE THE BIDDER HAS PRESENTED "CLEAR AND CONVINCING EVIDENCE" ESTABLISHING BOTH THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED. MOREOVER, THE CLOSER AN ASSERTED INTENDED BID IS TO THE NEXT LOW BID, THE GREATER THE DEGREE OF PROOF REQUIRED, AND, FOR THAT REASON, CORRECTION IS OFTEN DISALLOWED WHEN THE CORRECTED BID WOULD COME TOO CLOSE TO THE NEXT LOW BID.

IN ADDITION, THE PRESENT POLICY HAS POSITIVE BENEFITS BOTH FOR BIDDERS AND THE GOVERNMENT. FOR THE BIDDER, AUTOMATIC ELIMINATION OF ITS BID FROM CONSIDERATION CAN BE VIEWED AS UNDULY HARSH WHERE THERE IS ADEQUATE EVIDENCE TO SUPPORT CORRECTION. FOR THE GOVERNMENT, CORRECTION CAN RESULT IN SIGNIFICANT SAVINGS, PARTICULARLY WHERE THERE IS A WIDE DISPARITY BETWEEN THE CORRECTED LOW BID AND THE NEXT BID. SIMILARLY, WHEN THE MISTAKE IS APPARENT ON THE FACE OF THE BID, CORRECTION CAN RESULT IN DOWNWARD REVISION OF A HIGHER BID, AGAIN AT A SAVINGS TO THE GOVERNMENT.

GIVEN THESE CONSIDERATIONS AND RECOGNIZING THAT THE PRESENT PROCEDURE PERMITTING CORRECTION HAS APPARENTLY WELL SERVED ITS INTENDED PURPOSE FOR MANY YEARS, I CANNOT AGREE THAT THE POSSIBILITY OF ABUSE NOW DICTATES ADOPTION OF THE MORE RIGID POLICY YOU RECOMMEND. NEVERTHELESS, SINCE THIS IS A MATTER OF CONCERN TO YOUR MEMBERS, YOU MIGHT WANT TO REFER THE QUESTION TO THE ORGANIZATION RESPONSIBLE FOR ESTABLISHING EXECUTIVE BRANCH CONTRACTING POLICY, THE OFFICE OF FEDERAL PROCUREMENT POLICY (OFPP), AND REQUEST THAT IT REVIEW THE SUITABILITY OF THE EXISTING POLICY IN LIGHT OF EXECUTIVE BRANCH EXPERIENCE WITH IT.