B-152853, JUNE 19, 1964, 43 COMP. GEN. 817

B-152853, JUNE 19, 1964, 43 COMP. GEN. 817

BIDS - EVALUATION - AGGREGATE V. SEPARABLE ITEMS, PRICES, ETC. - TOTAL OF UNIT PRICES V. LUMP-SUM ADJUSTMENT PRICE THE FAILURE OF A BIDDER IN STATING A TOTAL PRICE THAT WAS LESS THAN THE ACTUAL TOTAL OF THE INDIVIDUAL ITEMS, UNDER AN INVITATION PROVIDING IN CASE OF VARIATION BETWEEN UNIT AND EXTENSION PRICES THE UNIT PRICE WILL GOVERN, TO INDICATE OR EXPLAIN THAT THE TOTAL PRICE REPRESENTED A LUMP-SUM ADJUSTMENT RATHER THAN AN ERROR IN ADDITION DOES NOT REQUIRE THE CONTRACTING OFFICER PURSUANT TO PARAGRAPH 2-406.1 OF THE ARMED SERVICES PROCUREMENT REGULATION TO VERIFY WHETHER THE BIDDER HAD MADE A MISTAKE, AND THE BIDDER NOT HAVING ALLEGED A MISTAKE BUT RATHER TAKING THE POSITION THE ACTUAL MATHEMATICAL TOTAL AND THE INDIVIDUAL UNIT BID PRICES ARE MODIFIED BY THE INSERTION OF A DIFFERENT AMOUNT AS THE TOTAL WHICH ARE AUTOMATICALLY TO BE BROUGHT INTO AGREEMENT BY A PRO-RATA ALLOCATION OF THE DIFFERENCE BETWEEN THE TWO TOTALS, THE QUESTION IS ONE OF INTERPRETING AN AMBIGUOUS OFFER, WHICH MAY NOT BE CLARIFIED OR EXPLAINED BY SUPPLEMENTARY STATEMENTS; THEREFORE, A REQUEST FOR VERIFICATION PERMITTING THE BIDDER TO ELECT WHICH OF TWO INCONSISTENT FIGURES TO "VERIFY" PARAGRAPH 2-406.1 IS NOT FOR APPLICATION.

TO SELLERS, CONNER AND CUNEO, JUNE 19, 1964:

WE HAVE YOUR LETTER OF MARCH 30 REQUESTING RECONSIDERATION OF OUR DECISION OF MARCH 5, 1964, 43 COMP. GEN. 579, DENYING YOUR PROTEST AGAINST THE REJECTION OF THE BID OF GEORGE A. FULLER COMPANY-WARRIOR CONSTRUCTORS, INC., A JOINT VENTURE, ON IFB NO. ENG (NASA) 01-076-64 11, ISSUED BY THE MOBILE ENGINEER DISTRICT, UNITED STATES ARMY, FOR CONSTRUCTION OF SATURN SECOND STAGE TEST FACILITIES AT THE MISSISSIPPI TEST FACILITY.

YOUR CONTENTION IS THAT OUR DECISION WAS ERRONEOUS IN POINT OF LAW (1) IN HOLDING THAT YOUR CLIENT WAS NOT ENTITLED TO HAVE ITS WORKPAPERS AND OTHER EVIDENCE AS TO PREPARATION OF ITS BID, SUBMITTED AFTER BID OPENING, CONSIDERED FOR THE PURPOSE OF DETERMINING WHAT THE BID WAS INTENDED TO BE; AND (2) IN HOLDING THAT YOUR CLIENT WAS OBLIGATED, IF IT DESIRED ANY EXPLANATION OR CLARIFICATION OF THE "SPECIAL BID CONDITIONS" CONCERNING LUMP-SUM ADJUSTMENTS, TO MAKE A WRITTEN REQUEST THEREFOR AND SO OBTAIN A CLARIFICATION BY WRITTEN AMENDMENT, AS PROVIDED BY PARAGRAPH 1 OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22).

WITH RESPECT TO YOUR FIRST POINT, YOU REFER TO PARAGRAPH 2-406, ARMED SERVICES PROCUREMENT REGULATION, AS NOT ONLY JUSTIFYING BUT REQUIRING THE CONTRACTING OFFICER'S REQUEST FOR AND CONSIDERATION OF THE FULLER-WARRIOR DOCUMENTATION OF ITS BID PREPARATION.

PARAGRAPH 2-406.1 PROVIDES THAT AFTER BID OPENING CONTRACTING OFFICERS SHALL EXAMINE ALL BIDS FOR MISTAKES, AND "IN CASES OF APPARENT MISTAKES, AND IN CASES WHERE THE CONTRACTING OFFICER HAS REASON TO BELIEVE THAT A MISTAKE MAY HAVE BEEN MADE, HE SHALL REQUEST FROM THE BIDDER A VERIFICATION OF THE BID, CALLING ATTENTION TO THE SUSPECTED MISTAKE.' THE BIDDER ALLEGES A MISTAKE,"THE MATTER SHALL BE PROCESSED IN THE MANNER SET FORTH BELOW.' PARAGRAPH 2-406.2 PROVIDES THAT CLERICAL MISTAKES APPARENT ON THE FACE OF THE BID MAY BE CORRECTED BY THE CONTRACTING OFFICER IF THE BIDDER VERIFIES THE INTENDED BID. MISTAKES OTHER THAN CLERICAL ARE AUTHORIZED TO BE HANDLED AS PROVIDED IN PARAGRAPH 2-406.3, WHICH PRESCRIBES PROCEDURES TO BE FOLLOWED IN CONNECTION WITH MISTAKES IN BID ALLEGED AFTER BID OPENING AND PRIOR TO AWARD, WHICH ULTIMATELY RESULT IN AN ADMINISTRATIVE DETERMINATION (1) TO PERMIT WITHDRAWAL OF THE BID; (2) TO PERMIT CORRECTION OF THE BID; OR (3) TO CONSIDER THE BID FOR AWARD IN THE FORM SUBMITTED. PURSUANT TO ASPR 2-406.3 (B) (1), AUTHORITY TO MAKE SUCH DETERMINATIONS WITH RESPECT TO PROCUREMENTS BY THE CORPS OF ENGINEERS HAS BEEN DELEGATED TO THE GENERAL COUNSEL OF THE OFFICE OF THE CHIEF OF ENGINEERS, WITHOUT POWER OF REDELEGATION.

SPECIFICALLY REFERRED TO IN SUPPORT OF YOUR POSITION IS THE FOLLOWING PROVISION (SUBPARAGRAPH 2-406.3 (E) (1) ( OF THE REGULATION:

(1) IN THE CASE OF ANY SUSPECTED MISTAKE IN BID, THE CONTRACTING OFFICER WILL IMMEDIATELY CONTACT THE BIDDER IN QUESTION CALLING ATTENTION TO THE SUSPECTED MISTAKE, AND REQUEST VERIFICATION OF HIS BID. IF THE BID IS VERIFIED, THE CONTRACTING OFFICER WILL CONSIDER THE BID AS ORIGINALLY SUBMITTED. IF THE TIME FOR ACCEPTANCE OF BIDS ISLIKELY TO EXPIRE BEFORE A DECISION CAN BE MADE, THE CONTRACTING OFFICER SHALL REQUEST ALL BIDDERS WHOSE BIDS MAY BECOME ELIGIBLE FOR AWARD TO EXTEND THE TIME FOR ACCEPTANCE OF THEIR BIDS. IF THE BIDDER WHOSE BID IS BELIEVED ERRONEOUS DOES NOT GRANT SUCH EXTENSION OF TIME, THE BID SHALL BE CONSIDERED AS ORIGINALLY SUBMITTED. IF A BIDDER ALLEGES A MISTAKE, THE CONTRACTING OFFICER WILL ADVISE THE BIDDER TO MAKE WRITTEN REQUEST INDICATING HIS DESIRE TO WITHDRAW OR MODIFY THE BID. THE REQUEST MUST BE SUPPORTED BY STATEMENTS (SWORN STATEMENTS IF POSSIBLE) CONCERNING THE ALLEGED MISTAKE AND SHALL INCLUDE ALL PERTINENT EVIDENCE SUCH AS BIDDER'S FILE COPY OF THE BID, THE ORIGINAL WORKSHEETS AND OTHER DATA USED IN PREPARING THE BID, SUBCONTRACTORS' QUOTATIONS, IF ANY, PUBLISHED PRICE LISTS, AND ANY OTHER EVIDENCE WHICH CONCLUSIVELY ESTABLISHES THE EXISTENCE OF THE ERROR, THE MANNER IN WHICH IT OCCURRED, AND THE BID ACTUALLY INTENDED.

YOU CONTEND THAT THE REQUIREMENT THAT A CONTRACTING OFFICER MUST EXAMINE AVAILABLE DOCUMENTATION TO DETERMINE A MISTAKE IN BID IS EQUALLY APPLICABLE WHERE THE LOW BIDDER INSISTS THAT ITS BID IS ACCURATE BUT IT IS CHALLENGED BY ANOTHER BIDDER OR THE CONTRACTING OFFICER AS CONTAINING MISTAKES OBVIOUS ON ITS FACE. IT IS OUR VIEW, HOWEVER, THAT WHAT IS INVOLVED IN THE FULLER-WARRIOR BID IS NOT A QUESTION OF MISTAKE, BUT A QUESTION OF INTERPRETING AN AMBIGUOUS OFFER. TO THE SAME EFFECT, SEE THE FINAL PARAGRAPH ON PAGE 6 OF OUR LETTER TO YOU DATED MARCH 5, 1964. IT IS OUR FURTHER VIEW THAT THESE QUESTIONS ARE NOT NECESSARILY TO BE DISPOSED OF BY THE SAME RULES. HERE THE CONTRACTING OFFICER EXAMINED THE BID FOR MISTAKES, AS THE REGULATION DIRECTED HIM TO DO, AND FOUND THAT FOR EACH OF THE TWO SCHEDULES THERE WERE TWO AMOUNTS, EITHER OF WHICH MIGHT BE CONSIDERED AS THE AMOUNT BID: I.E., THE AMOUNT INSERTED AS THE TOTAL OF THE SCHEDULE, AND THE ACTUAL TOTAL OF THE ITEM PRICES OF THE SCHEDULE. ASPR 2-406.1 IS APPLICABLE TO THIS SITUATION, IT WOULD SEEM THAT THE REQUIRED REQUEST FOR VERIFICATION WOULD PERMIT THE BIDDER TO ELECT WHICH OF THE INCONSISTENT FIGURES HE WOULD "VERIFY.' THE PROVISIONS IN ASPR 2- 406.1 FOR SUBMISSION OF PROOF ARE THEREFORE APPLICABLE ONLY IF THE BIDDER ALLEGES A MISTAKE. IN THIS CASE THE BIDDER DID NOT AND DOES NOT ALLEGE A MISTAKE IN ITS BID. ON THE CONTRARY, THE BIDDER HAS TAKEN THE POSITION THAT THE ACTUAL MATHEMATICAL TOTAL AND THE INDIVIDUAL UNIT BID PRICES ARE MODIFIED BY THE INSERTION OF A DIFFERENT AMOUNT AS THE TOTAL, AND ARE AUTOMATICALLY TO BE BROUGHT INTO AGREEMENT BY A PRO-RATA ALLOCATION OF THE DIFFERENCE BETWEEN THE TWO TOTALS. IN OFFERING EVIDENCE IN SUPPORT OF THIS POSITION, THE BIDDER IS IN FACT UNDERTAKING TO PROVE A SUBJECTIVE INTENT THAT THE BID SHOULD BE INTERPRETED IN A CERTAIN WAY, RATHER THAN TO PROVE THAT WHAT WAS WRITTEN IN THE BID WAS NOT WHAT WAS INTENDED TO BE WRITTEN.

IN OUR VIEW, IT IS AN ESSENTIAL OF A VALID BID OR OFFER THAT IT BE SUFFICIENTLY DEFINITE TO ENABLE THE OFFEREE TO ACCEPT IT WITH CONFIDENCE THAT THE CONTRACT SO MADE CAN BE INTERPRETED AND ENFORCED WITHOUT RESORT TO EXTRANEOUS EVIDENCE. IN THE CASE OF PRIVATE PARTIES, AN AMBIGUOUS OFFER MAY OF COURSE BE CLARIFIED OR EVEN CHANGED BY FURTHER COMMUNICATIONS WHICH MAY THEN BECOME A PART OF THE CONTRACT FINALLY REACHED. IN THE CASE OF THE GOVERNMENT, HOWEVER, WHERE THE CONTRACTING PROCESS IS GOVERNED BY THE STATUTORY AND REGULATORY PROVISIONS FOR FORMAL ADVERTISING AND COMPETITIVE BIDDING, WE BELIEVE THAT IT IS IMPROPER TO PERMIT A BIDDER TO CLARIFY OR EXPLAIN BY SUPPLEMENTARY STATEMENTS A BID WHICH, AS SUBMITTED, IS SO UNCLEAR IN ITS STATEMENT OF THE IMPORTANT ELEMENT OF PRICE AS TO LEAVE SUBSTANTIAL DOUBT AS TO THE RIGHTS AND OBLIGATIONS WHICH WOULD ARISE BY ACCEPTING IT. IN THE PECULIAR SITUATION HERE PRESENTED, WHERE A BID IS READILY SUSCEPTIBLE OF BEING INTERPRETED AS OFFERING EITHER ONE OF TWO PRICES SHOWN ON ITS FACE, ONE OF WHICH WOULD BE THE LOWEST BID WHILE THE OTHER WOULD NOT, WE BELIEVE THAT IT WOULD BE UNFAIR TO THE OTHER BIDDER OR BIDDERS AFFECTED TO PERMIT THE BIDDER WHO CREATED SUCH AMBIGUITY TO ELECT WHICH PRICE IT SHOULD ATTEMPT TO SUPPORT.

YOUR SECOND CONTENTION IS BASED UPON YOUR CITATION OF THE STATEMENT IN WPC ENTERPRISES, INCORPORATED V. UNITED STATES, CT.CL. NO. 256-59, OCTOBER 11, 1963, THAT WHEN A SUBSTANTIVE PROVISION OF A GOVERNMENT DRAWN AGREEMENT IS FAIRLY SUSCEPTIBLE OF A CERTAIN CONSTRUCTION AND THE CONTRACTOR ACTUALLY AND REASONABLY SO CONSTRUES IT, THAT INTERPRETATION WILL BE ADOPTED UNLESS THE PARTIES' INTENTION IS OTHERWISE AFFIRMATIVELY REVEALED; AND THE FURTHER STATEMENT THAT THE CONTRACTOR "IS NOT NORMALLY REQUIRED (ABSENT A CLEAR WARNING IN THE CONTRACT) TO SEEK CLARIFICATION OF ANY AND ALL AMBIGUITIES, DOUBTS, OR POSSIBLE DIFFERENCES IN INTERPRETATION" IN THE PROVISIONS OF AN INVITATION FOR BIDS.

WE DO NOT FEEL THAT THESE LEGAL PRINCIPLES CAN PROPERLY BE APPLIED TO SUPPORT YOUR POSITION IN THIS CASE, WHICH IS IN EFFECT THAT THE SPECIAL BID CONDITION (PAGE UP-26) SHOULD BE READ AS IF IT SAID "IF A BID BASED ON UNIT PRICES QUOTES A TOTAL PRICE DIFFERENT FROM THE TOTAL OF THE UNIT PRICES THE DIFFERENCE SHALL BE CONSIDERED TO BE A LUMP-SUM ADJUSTMENT WHICH SHALL BE APPLIED ON A PRO-RATA BASIS TO EVERY UNIT PRICE UNLESS ANOTHER APPLICATION IS STATED.' WHILE YOU POINT OUT THAT THE PROVISIONS AS WRITTEN DOES NOT REQUIRE ANY SPECIFIC NOTIFICATION THAT THE LUMP-SUM ADJUSTMENT IS BEING MADE, WE FEEL THAT THE LANGUAGE "IF A BID * * * PROVIDES FOR A LUMP-SUM ADJUSTMENT" NECESSARILY IMPLIES THE REQUIREMENT THAT IT MUST BE REASONABLY CLEAR THAT A LUMP SUM ADJUSTMENT IS INTENDED, AND DOES NOT CREATE ANY PRESUMPTION THAT THE STATEMENT OF A TOTAL PRICE DIFFERENT FROM THE TOTAL OF STATED UNIT PRICES NECESSARILY REFLECTS A LUMP -SUM ADJUSTMENT. THE REAL QUESTION PRESENTED IS NOT WHETHER THE BIDDER MIGHT REASONABLY HAVE GIVEN SUCH AN INTERPRETATION TO THE PROVISION, BUT WHETHER IF THE GOVERNMENT HAD ACCEPTED THE BID AS SUBMITTED IT COULD HAVE INSISTED UPON THAT INTERPRETATION, AND THE WEIGHT OF THE CITED DECISION IN WPC ENTERPRISES WOULD APPEAR TO BE AGAINST SUCH AN INTERPRETATION BY THE GOVERNMENT.

AS TO THE APPLICABILITY OF THAT PORTION OF THE INSTRUCTIONS TO BIDDERS (STANDARD FORM 22) IN THE INSTANT INVITATION WHICH PROVIDES THAT ANY EXPLANATION DESIRED BY A BIDDER REGARDING THE MEANING OR INTERPRETATION OF THE INVITATION SHOULD BE REQUESTED IN WRITING, IT SHOULD BE NOTED THAT THE DECISION OF THE COURT IN WPC ENTERPRISES WAS BASED UPON THE INSTRUCTIONS TO BIDDERS AS SET OUT IN STANDARD FORM 32, WHICH DID NOT INCLUDE NOTICE TO BIDDERS TO REQUEST INTERPRETATION OF THE INVITATION IN WRITING. IT IS OUR OPINION THAT THE NOTICE IN STANDARD FORM 22 TO REQUEST INTERPRETATION IN WRITING IS EXACTLY SUCH A "CLEAR WARNING IN THE CONTRACT" AS WAS REFERRED TO IN THE WPC ENTERPRISES DECISION AS AN EXCEPTION OR QUALIFICATION TO THE STATEMENT THAT A CONTRACTOR IS NOT NORMALLY REQUIRED TO SEEK CLARIFICATION OF ALL AMBIGUITIES OR DOUBTS. HOWEVER, EVEN ACCEPTING THE STATEMENT OF THE DECISION AS BEING APPLICABLE TO PROCUREMENTS IN WHICH STANDARD FORM 22 IS USED, WE HAVE DOUBT AS TO ITS APPLICABILITY TO THE CASE IN HAND, SINCE WE FIND HERE NO REAL AMBIGUITY IN THE PROVISIONS OF THE INVITATION. RATHER, SUCH AMBIGUITY AS EXISTS IS ONLY THAT WHICH WAS CREATED BY THE BIDDER'S METHOD OF STATING ITS PRICE WITHOUT GIVING AN INDICATION OR EXPLANATION THAT THE AMOUNT GIVEN AS THE TOTAL REPRESENTED A LUMP-SUM ADJUSTMENT RATHER THAN AN ERROR IN ADDITION.

UPON FULL CONSIDERATION OF YOUR CONTENTIONS AND THE POINTS ARGUED IN SUPPORT THEREOF, WE FIND NO BASIS FOR MODIFYING OR DEPARTING FROM THE POSITION TAKEN IN OUR PRIOR DECISION.