B-173178, AUG 20, 1971

B-173178, AUG 20, 1971

BID PROTEST - MISTAKE IN BID - CORRECTION DENYING PROTEST OF SURPLUS TIRE SALES AGAINST THE FAILURE TO PERMIT CORRECTION OF ITS BID SUBMITTED IN RESPONSE TO AN IFB FOR SCRAP STEEL ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, SAN DIEGO, CALIF. THE DISCREPANCY BETWEEN PROTESTANT'S UNIT PRICE (PER TON) AND EXTENDED PRICE RESULTING IN THE UNIT PRICE BID'S BEING HIGH, BUT NOT THE EXTENDED TOTAL PRICE, CANNOT BE CORRECTED SINCE SUCH ACTION WOULD RESULT IN THE DISPLACEMENT OF AN OTHERWISE SUCCESSFUL BIDDER, ESPECIALLY AS THERE WAS NO CLAUSE PROVIDING THAT BIDS BE SUBMITTED ON A UNIT BASIS.

TO SURPLUS TIRE SALES:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 1, 1971, WITH ENCLOSURES, PROTESTING AWARD OF A CONTRACT TO ANOTHER FIRM UNDER SALES INVITATION FOR BIDS (IFB) NO. 46-1096, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, SAN DIEGO, CALIFORNIA.

ITEM 2, THE SUBJECT OF THE PROTEST, WAS ADVERTISED AS "STEEL, HEAVY, UNPREPARED, SCRAP *** 29 GROSS TON," AND BIDS WERE SOLICITED FOR BOTH UNIT AND TOTAL EXTENDED PRICES. CONTAINED IN THE IFB WAS THE FOLLOWING LEGEND:

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

IN RESPONSE, YOU INSERTED A "UNIT PRICE BID" OF $56.65 AND EXTENDED THE "TOTAL PRICE BID" TO $1,586.20.

IT IS REPORTED BY THE SALES CONTRACTING OFFICER (SCO) THAT EXAMINATION OF YOUR BID REVEALED THAT YOUR UNIT PRICE AND THE TOTAL EXTENDED PRICE WERE INCOMPATIBLE WITH THE AMOUNT ADVERTISED, THE RESULT OF WHICH DISCREPANCY WAS THAT THE UNIT PRICE BID WAS HIGH BUT THE EXTENDED TOTAL PRICE WAS NOT. IT IS NOTED YOUR BIDS ON TWO OTHER ITEMS ALSO EVIDENCED INCOMPATIBILITY BETWEEN UNIT AND EXTENDED PRICES.

UPON DISCOVERY OF THE PRICE DISCREPANCY, THE SCO TELEPHONED SURPLUS TIRE SALES (SURPLUS) ON APRIL 22, 1971, FOR BID VERIFICATION, BUT THE PERSON CONTACTED DISCLAIMED AUTHORITY TO VERIFY THE BID. THEREAFTER, ON APRIL 23, 1971, A WRITTEN REQUEST FOR BID VERIFICATION WAS MAILED TO SURPLUS. YOUR REPLY WAS RECEIVED APRIL 27, 1971, SUPPORTED BY WORKSHEETS AND ASSERTED THAT THE UNIT PRICE WAS CORRECT AND REQUESTED THAT THE EXTENDED BID PRICE, ERRONEOUSLY COMPUTED THROUGH FAULTY MULTIPLICATION, BE CORRECTED TO REFLECT THE CORRECT UNIT PRICE, OR $1,642.85.

THE ABSTRACT OF BIDS FOR ITEM 2 INDICATES THAT BIDS, EXCLUDING SURPLUS, RANGED FROM $5.06 PER GROSS TON TO $56.56 PER GROSS TON (CORRECTLY EXTENDED TO $1,640.24). WE HAVE BEEN ADVISED THAT AWARD WAS MADE TO ALASKA PIPE AND SALVAGE CO. AT $56.56 PER GROSS TON, OR FOR A TOTAL OF $1,640.24.

IT IS YOUR CONTENTION THAT THE TERMS OF THE IFB SOLICITED UNIT BID PRICES, WHICH ARE CONTROLLING IN THE EVENT OF A DISPARITY BETWEEN THE UNIT AND EXTENDED PRICES. IN SUPPORT OF THIS CONTENTION YOU CITE B 162922, DECEMBER 13, 1967, WHICH YOU INTERPRET AS HOLDING THAT UNIT PRICES PREVAIL IF THERE IS ANY DISCREPANCY WITH AN EXTENDED PRICE. HOWEVER, THAT CASE IS DISTINGUISHABLE FROM THE PRESENT SITUATION IN THAT THE IFB THERE CONTAINED A CLAUSE PROVIDING THAT BIDS BE SUBMITTED ON A UNIT BASIS, WHEREAS THE INSTANT IFB CONTAINED NO SUCH PROVISION. FURTHER, THE RECORD REVEALED THAT THERE WAS NO ERROR IN THE QUESTIONED BID IN THAT CASE. RATHER, THE EXTENDED BID WAS PRICED ON A PER POUND BASIS INSTEAD OF A UNIT BASIS AS REQUIRED, BUT BOTH UNIT AND EXTENDED PRICES COULD BE ASCERTAINED FROM THE BID AS SUBMITTED.

YOU ALSO REFER TO PARAGRAPH 12 OF PART 2 OF THE DEFENSE LOGISTICS SERVICES CENTER FORM 436 (REV.) MARCH 1969, ENTITLED SALE BY REFERENCE, WHICH WAS INCORPORATED BY REFERENCE, AND PROVIDES:

"ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT. EXCEPT FOR TERM CONTRACTS, WHEN PROPERTY IS SOLD BY A UNIT OTHER THAN 'WEIGHT', THE GOVERNMENT RESERVES THE RIGHT TO VARY THE QUANTITY TENDERED OR DELIVERED TO THE PURCHASER BY 10%; WHEN THE PROPERTY IS SOLD BY 'WEIGHT', THE GOVERNMENT RESERVES THE RIGHT TO VARY THE WEIGHT TENDERED OR DELIVERED TO THE PURCHASER BY 25%. THE PURCHASE PRICE WILL BE ADJUSTED UPWARDS OR DOWNWARD IN ACCORDANCE WITH THE UNIT PRICE AND ON THE BASIS OF THE QUANTITY OR WEIGHT ACTUALLY DELIVERED. *** '

YOU ALLEGE THAT THE FOREGOING BINDS THE GOVERNMENT TO THE UNIT PRICES IN CASE OF INCONSISTENCES BETWEEN THE UNIT AND TOTAL PRICE. IT IS OUR VIEW THAT THE ABOVE PROVISION REFERS TO A POST-AWARD DETERMINATION AND DOES NOT DICTATE ANY ORDER OF PREFERENCE IN EVALUATING BIDS. ALSO, PARAGRAPH 3, PART 2, OF THAT DOCUMENT PROVIDES, IN PART, AS FOLLOWS:

"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."

IN OUR OPINION, THE IMPORT OF THIS PROVISION IS THAT IN THE EVENT OF A DISCREPANCY BETWEEN UNIT AND EXTENSION PRICES, NEITHER WILL BE GIVEN ANY PREFERENCE.

WE HAVE HELD THAT CORRECTION OF AN ERRONEOUS BID WILL NOT BE PERMITTED WHEN SUCH ACTION WOULD RESULT IN THE DISPLACEMENT OF AN OTHERWISE SUCCESSFUL BIDDER. THE ONLY EXCEPTION IS WHEN THE ERROR IS OBVIOUS AND THE INTENDED BID CAN BE ASCERTAINED FROM THE BID ITSELF, WITHOUT RESORT TO EXTRANEOUS DOCUMENTS. 37 COMP. GEN. 210 (1957); B 171449, JANUARY 21, 1971; 50 COMP. GEN. ; (B-169688, MAY 27, 1970). ALTHOUGH IT IS APPARENT THAT A MISTAKE DID OCCUR IN THE SUBMISSION OF YOUR BID, THE AMOUNT OF YOUR INTENDED BID IS NOT APPARENT FROM THE FACE OF YOUR BID. MOREOVER, YOUR REQUESTED CORRECTION WOULD DISPLACE THE HIGH BID OF ALASKA PIPE AND SALVAGE CO., TO WHOM AWARD WAS MADE.

THEREFORE, YOUR REQUEST FOR CORRECTION MUST BE DENIED.