B-82336, JANUARY 6, 1949, 28 COMP. GEN. 403

B-82336, JANUARY 6, 1949, 28 COMP. GEN. 403

BIDS - MISTAKES - CORRECTION - EVIDENCE REQUIREMENTS IN ORDER FOR THE GENERAL ACCOUNTING OFFICE TO BE IN A POSITION TO AUTHORIZE BY DECISION THE CORRECTION OF AN ALLEGEDLY ERRONEOUS BID AFTER THE BIDS HAVE BEEN OPENED, THE RECORD SUBMITTED SHOULD CONTAIN THE BEST EVIDENCE AVAILABLE CONCLUSIVELY ESTABLISHING NOT ONLY THE EXISTENCE OF ERROR, BUT ITS NATURE, HOW IT OCCURRED, AND WHAT THE BIDDER ACTUALLY INTENDED TO BID, HOWEVER, A MERE STATEMENT THAT THE ADMINISTRATIVE OFFICIALS THEMSELVES ARE SATISFIED THAT AN ERROR WAS MADE ORDINARILY WILL NOT SUFFICE.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, ATOMIC ENERGY COMMISSION, JANUARY 6, 1949:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 17, 1948, WITH ENCLOSURES, FROM THE ACTING CHAIRMAN, ATOMIC ENERGY COMMISSION, RELATIVE TO AN ERROR ALLEGED BY WESTINGHOUSE ELECTRIC CORPORATION TO HAVE BEEN MADE IN ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. 290 49-44 FOR BIDS TO BE OPENED ON NOVEMBER 16, 1948. A DECISION IS REQUESTED AS TO THE ACTION TO BE TAKEN IN THE MATTER.

THE ATOMIC ENERGY COMMISSION, LOS ALAMOS, NEW MEXICO, INVITED BIDS FOR FURNISHING, F.O.B. SANTA FE, NEW MEXICO, NINE ITEMS OF POWER GENERATING EQUIPMENT AS DESCRIBED IN THE SPECIFICATIONS ACCOMPANYING THE INVITATION. IN RESPONSE TO THE INVITATION, WESTINGHOUSE ELECTRIC CORPORATION SUBMITTED A BID OFFERING TO FURNISH THE TWO POWER TRANSFORMERS COVERED BY ITEM VI--- THE ITEM INVOLVED IN THE SUBMISSION- - AT A PRICE OF $17,157. FIVE OTHER BIDS ON ITEM VI WERE RECEIVED AND RANGED FROM $24,980 TO $27,296.

IT IS REPORTED THAT A REPRESENTATIVE OF THE WESTINGHOUSE ELECTRIC CORPORATION IN A TELEPHONE CONVERSATION ON NOVEMBER 22, 1948, WITH AN EMPLOYEE OF THE LOS ALAMOS OFFICE OF THE ATOMIC ENERGY COMMISSION STATED THAT THE CORPORATION'S FACTORY HAD MADE AN ERROR IN THE PRICE BID FOR ITEM VI IN THAT THE QUOTATION SHOULD HAVE BEEN $27,157, INSTEAD OF $17,157; THAT THE TRANSFORMER UNIT PRICE WAS $13,501, OR THE TOTAL FOR TWO TRANSFORMERS WAS $27,002 TO WHICH $155 WAS TO BE ADDED FOR THROAT CONNECTIONS, MAKING A TOTAL OF $27,157; AND THAT THE ERROR CONSISTED IN MULTIPLYING $13,501 BY TWO AND OBTAINING A PRODUCT OF $17,002 INSTEAD OF $27,002. BY LETTER DATED NOVEMBER 23, 1948, THE BIDDER CONFIRMED THE TELEPHONE CONVERSATION AND STATED THAT THE ERROR WAS ONE OF SIMPLE MULTIPLICATION MADE BY THE FACTORY. IT IS REPORTED FURTHER THAT THE " COMMISSION'S SANTA FE OPERATIONS OFFICE IS SATISFIED THAT WESTINGHOUSE DID IN FACT MAKE A MISTAKE IN ITS BID AS A RESULT OF ARITHMETICAL ERROR IN COMPUTATION" AND IT IS PROPOSED TO PERMIT CORRECTION OF THE BID WHICH WILL RESULT IN THE ELIMINATION OF THE WESTINGHOUSE ELECTRIC CORPORATION AS THE LOW BIDDER.

THE QUESTION OF WHETHER A BIDDER MAY CHANGE A BID--- AFTER THE BIDS HAVE BEEN OPENED--- BECAUSE OF ERROR THEREIN ALWAYS PRESENTS A MATTER OF SERIOUS CONCERN IN A FACTUAL SITUATION SUCH AS IS HERE PRESENT. IN ORDER FOR THIS OFFICE TO BE IN A POSITION TO AUTHORIZE SUCH ACTION BY DECISION, THE RECORD SUBMITTED HERE SHOULD CONTAIN EVIDENCE CONCLUSIVELY ESTABLISHING NOT ONLY THE EXISTENCE OF ERROR, BUT IS NATURE, HOW IT OCCURRED, AND WHAT THE BIDDER ACTUALLY INTENDED TO BID. THE FORM OF SUCH EVIDENCE NECESSARILY WILL VARY WITH THE CIRCUMSTANCES OF PARTICULAR CASES, BUT IT SHOULD ALWAYS BE THE BEST EVIDENCE AVAILABLE. A MERE STATEMENT THAT THE ADMINISTRATIVE OFFICIALS THEMSELVES ARE SATISFIED THAT AN ERROR WAS MADE ORDINARILY WILL NOT SUFFICE.

IN THE PRESENT CASE THE CONTRACTOR'S WORK SHEETS HAVE NOT BEEN FURNISHED, NOR HAS ANY EVIDENCE BEEN FURNISHED IN CONFIRMATION OF THE ALLEGATION THAT THE QUOTATION GIVEN TO THE BIDDER BY THE FACTORY WAS IN ERROR. HOWEVER, THE ABSTRACT OF BIDS DOES SHOW THAT THE FIVE OTHER BIDS RANGED FROM $24,980 TO $27,296. THUS, TO SOME EXTENT, THE BID OF $17,157 IS OUT OF LINE WITH THE OTHER BIDS RECEIVED INDICATING THAT THE BIDDER PROBABLY MADE AN ERROR.

ACCORDINGLY, UNDER THE CIRCUMSTANCES OF THIS CASE AND ESPECIALLY SINCE THE WESTINGHOUSE ELECTRIC CORPORATION ALLEGED THE ERROR AND EXPLAINED HOW IT OCCURRED PRIOR TO AWARD, THE SAID BID MAY BE DISREGARDED.