B-143271, DECEMBER 2, 1960, 40 COMP. GEN. 321

B-143271, DECEMBER 2, 1960, 40 COMP. GEN. 321

BIDS - MISTAKES - CONTRACTING OFFICERS CORRECTION DUTY - FAILURE TO INDICATE "NO CHARGE" FOR CERTAIN ITEMS THE FACT THAT A BIDDER QUOTED A PRICE 50 PERCENT HIGHER ON ALTERATIONS TO AN ITEM THAN THE BASE PRICE FOR THE ITEM AND THAT REMAINING BIDDERS QUOTED THE SAME PRICE ON THESE ITEMS MAY BE REGARDED AS SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF POSSIBLE ERROR BUT, IN THE ABSENCE OF ANY REQUIREMENT THAT THE PRICES SHOULD BE IDENTICAL, THE ERROR ON THE ALTERATION PRICE IS NOT ONE WHICH THE CONTRACTING OFFICER IS REQUIRED TO CORRECT, OR HAD AUTHORITY TO CORRECT, WITHOUT FORMAL ALLEGATION OF THE ERROR BY THE BIDDER AND THE SUBMISSION OF EVIDENCE TO ESTABLISH THE ERROR, THE AMOUNT OF THE ERROR AND THE MANNER IN WHICH IT OCCURRED. A PROVISION IN A REQUIREMENT-TYPE BID THAT BIDDERS INSERT THE SYMBOL "N/C" (NO CHARGE), WHERE NO CHARGE WAS CONTEMPLATED ON NUMEROUS ITEMS WHICH WERE NOT TO BE CONSIDERED IN THE EVALUATION OF THE BIDS, IS A PROVISION FOR THE PROTECTION OF THE GOVERNMENT AND THE FAILURE OF A BIDDER TO INSERT THE "N/C" SYMBOL IS NOT A FAILURE AFFECTING THE BID PRICE OR THE QUANTITY OR QUALITY OF WORK WHICH WOULD RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO THE BIDDER OR INFRINGE UPON THE ENFORCEABLE RIGHTS OF OTHER BIDDERS; THEREFORE, THE FAILURE MAY BE WAIVED AND THE BID CONSIDERED FOR AWARD. A BIDDER WHO SUBSTITUTES THE LETTER "0" FOR THE SYMBOL "N/C" (NO CHARGE) ON ITEMS TO BE CONSIDERED IN THE EVALUATION OF BID IS CONSIDERED TO BE OFFERING THE SERVICES WITHOUT CHARGE AND AN AWARD BASED ON THE BID WOULD OBLIGATE THE BIDDER TO FURNISH THE SERVICES WITHOUT CHARGE; THEREFORE, THE SUBSTITUTION DOES NOT RENDER THE BID NONRESPONSIVE TO THE INVITATION.

TO TECHNER, RUBIN AND SHAPIRO, DECEMBER 2, 1960:

REFERENCE IS MADE TO YOUR LETTER NOVEMBER 10, 1960, WRITTEN IN BEHALF OF GOODWAY PRINTING COMPANY AND REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 7, 1960, B-143271, WHICH DIRECTED THE SECRETARY OF THE AIR FORCE TO CANCEL AF 49 (642/-709 WITH THAT COMPANY.

PURSUANT TO YOUR ADVICE THAT THE AGGREGATE AMOUNT OF THE MCGREGOR BID, WHEN PROPERLY COMPUTED, IS $48,412.54 RATHER THAN $47,547.49 AS INDICATED IN OUR DECISION, AND THAT GOODWAY'S AGGREGATE BID OF $47,767.75 WAS THEREFORE THE LOW BID EVEN BEFORE IT WAS CORRECTED DOWNWARD REVIEWED THE MCGREGOR BID. THIS REVIEW SHOWS THAT, AS SUBMITTED, MCGREGOR'S TOTAL EVALUATED BID PRICE ON ITEMS A THROUGH RR WAS $44,011.40. FURTHER, ITS BID PRICE ON ITEMS SS (CLASSIFIED MATERIAL) WAS AN ADDITIONAL 10 PERCENT. WHILE ITEM SS WAS APPLICABLE ONLY TO ITEMS A THROUGH MM, THE AMOUNT OF $4,401.14, OR 10 PERCENT OF THE TOTAL FOR ITEMS A THROUGH RR, WAS ERRONEOUSLY USED AS THE EVALUATED AMOUNT OF ITEM SS, AND THIS ERRONEOUS AMOUNT WAS ADDED TO $44,011.40 TO ARRIVE AT AN AGGREGATE OVER-ALL EVALUATION TOTAL OF $48,412.54, TO WHICH YOUR LETTER REFERS.

IN REVIEWING THE MC1GREGOR BID THE CONTRACTING OFFICER NOTICED THIS ERROR, TOGETHER WITH A SECOND ERROR WHICH OCCURRED IN TRANSPOSING AN ERRONEOUS UNIT PRICE OF $18 ON ITEM G TO PAGE 4 OF THE INVITATION, INSTEAD OF TRANSPOSING THE CORRECT UNIT PRICE OF $11 AS SHOWN UNDER SECTION 2, ITEM 3, PARAGRAPH A, ON PAGE 6 OF EXHIBIT "1A.' HE ALSO NOTICED A THIRD ERROR WHICH OCCURRED IN EXTENDING THE UNIT PRICE OF $2.10 ON ITEM HH IN A TOTAL AMOUNT OF $10.50 RATHER THAN THE CORRECT AMOUNT OF $105. ALL OF THESE MISTAKES WERE, IN OUR OPINION, OBVIOUS CLERICAL ERRORS AND THE ACTION OF THE CONTRACTING OFFICER IN CORRECTING SUCH ERRORS PRIOR TO DETERMINING THE LOW EVALUATED BID PRICE WAS THEREFORE PROPER. CORRECTION OF THE ERRORS ON ITEMS G AND HH RESULTED IN A TOTAL PRICE OF $41,415.90 FOR ITEMS A THROUGH MM. A CORRECT EXTENSION OF THE 10 PERCENT UNIT PRICE ON ITEM SS RESULTED IN A PRICE OF $4,141.59, AND THE ADDITION OF $1,990 FOR ITEMS NN THROUGH RR, RESULTED IN AN AGGREGATE OVER-ALL EVALUATION TOTAL OF $47,547.49. IT WOULD THEREFORE APPEAR THAT THE AMOUNT OF $47,547.49, COMPUTED AS SET OUT ABOVE AND REFERRED TO IN OUR DECISION OF OCTOBER 7, IS THE CORRECT EVALUATED BID PRICE WHICH SHOULD BE COMPARED WITH YOUR ORIGINAL BID PRICE OF $47,767.75 FOR THE PURPOSE OF DETERMINING WHICH BID WAS THE LOWER BID AT TIME OF BID OPENING AND BEFORE CONSIDERATION OF ANY OTHER ERRORS WHICH WERE NOT OF SUCH NATURE AS TO PERMIT THEIR CORRECTION BY THE CONTRACTING OFFICER WITHOUT FORMAL ALLEGATION OF ERROR AND THE SUBMISSION OF EVIDENCE SHOWING THE NATURE AND EXTENT OF SUCH ERROR.

CONCERNING YOUR CONTENTION THAT THE MISTAKE IN YOUR BID ON SECTION 1, ITEM 1, PARAGRAPH 2A, WAS OBVIOUS; THAT THE CONTRACTING OFFICER COULD DETERMINE THAT NO HIGHER CHANGE COULD BE MADE FOR AUTHOR'S ALTERATIONS THAN FOR BASE CHARGES; AND THAT THE CONTRACTING OFFICER THEREFORE HAD AN ABSOLUTE RIGHT TO MAKE THE CORRECTION FROM $6 PER HOUR TO $4 PER HOUR ON THIS ITEM, WE FIND NOTHING IN THE INVITATION TO SUPPORT SUCH CONCLUSIONS. WHILE THE FACT THAT YOUR BID ON AUTHOR'S ALTERATIONS WAS 50 PERCENT HIGHER THAT YOUR BID ON BASE CHARGES, BUT THE REMAINING BIDS QUOTED THE SAME PRICES ON THESE ITEMS, MAY WELL HAVE BEEN SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF POSSIBLE ERROR, THERE DOES NOT APPEAR TO BE ANY REQUIREMENT THAT A BIDDER'S PRICES ON THESE TWO ITEMS BE IDENTICAL. WE ARE THEREFORE UNABLE TO AGREE WITH YOUR CONTENTION THAT THE ERROR IN YOUR BID PRICE ON AUTHOR'S ALTERATIONS WAS SUCH THAT THE CONTRACTING OFFICER WAS CHARGED WITH THE RESPONSIBILITY OF CORRECTING, OR HAD THE AUTHORITY TO CORRECT, WITHOUT FORMAL ALLEGATION OF ERROR BY YOUR COMPANY AND THE SUBMISSION OF COMPETENT EVIDENCE TO ESTABLISH THE EXISTENCE OF ERROR, THE AMOUNT OF ERROR, AND THE MANNER IN WHICH IT OCCURRED. 35 COMP. GEN. 279; 31 ID. 183.

IN VIEW OF THE ABOVE, WE MUST REAFFIRM THAT, PRIOR TO CONSIDERATION OF ERRORS WHICH WERE NOT OF A NATURE TO PERMIT CORRECTION BY THE CONTRACTING OFFICER, THE MCGREGOR BID WAS THE LOWEST BID RECEIVED. UNDER THE CIRCUMSTANCES, A DETERMINATION OF WHETHER MCGREGOR'S LOW BID WAS RESPONSIVE WAS BOTH PROPER AND NECESSARY BEFORE YOUR BID COULD BE GIVEN FURTHER CONSIDERATION.

CONCERNING THE QUESTION WHETHER OUR DECISION OF OCTOBER 7 IS CORRECT IN HOLDING THAT THE MCGREGOR BID COULD BE CONSIDERED RESPONSIVE TO THE INVITATION, YOU CONTEND THAT THE INVITATION MAKES IT MANDATORY TO REJECT ALL BIDS WHICH DO NOT INDICATE "1N/C" FOR ITEMS ON WHICH NO CHARGE IS CONTEMPLATED, AND THAT OUR DECISION, IN HOLDING THAT A BID WHICH FAILED TO INSERT EITHER A PRICE OR THE SYMBOL "1N/C" ON AN ITEM WHICH WAS NOT TO BE CONSIDERED IN EVALUATING BIDS, WILL TEND TO SUBVERT THE ENTIRE SYSTEM OF ADVERTISED BIDDING AND THE PRINCIPLES BEHIND SUCH SYSTEM. IN SUPPORT THEREOF, YOU EXPRESS THE BELIEF THAT THE REASONING FOLLOWED IN OUR DECISION WOULD NECESSARILY RESULT IN DECLARING A BID RESPONSIVE EVEN THOUGH THE BIDDER HAD FAILED TO INSERT EITHER A BID PRICE OR THE SYMBOL "1N/C" IN THE SPACES PROVIDED FOR ALL OF THE APPROXIMATELY 60 ITEMS WHICH WERE INCLUDED IN THE INVITATION BUT WERE NOT TO BE CONSIDERED IN EVALUATING THE BIDS.

WHETHER CERTAIN PROVISIONS OF AN INVITATION FOR BIDS ARE TO BE CONSIDERED MANDATORY OR DISCRETIONARY DEPENDS UPON THE MATERIALITY OF SUCH PROVISIONS AND WHETHER THEY WERE INSERTED FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT OR FOR THE PROTECTION OF THE RIGHTS OF BIDDERS. UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE OR MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURES TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.

APPLYING THESE PRINCIPLES TO THE FAILURE OF MCGREGOR TO INSERT "1N/C" IN ITS BID ON AN ITEM THAT WAS NOT TO BE CONSIDERED IN THE EVALUATED BID PRICE, AND HAVING IN MIND THAT THE CONTRACT TO BE AWARDED WAS OF A REQUIREMENT TYPE WITH NO ASSURANCE THAT THE SUCCESSFUL CONTRACTOR WOULD EVER BE CALLED UPON TO FURNISH SERVICES UNDER THAT ITEM, IT IS OUR CONSIDERED OPINION THAT, INSOFAR AS ITEMS WHICH WERE NOT TO BE USED IN EVALUATING BID PRICES ARE CONCERNED, THE REQUIREMENT THAT BIDDERS INSERT THE SYMBOL "1N/C" WHERE NO CHARGE WAS CONTEMPLATED MUST BE CONSTRUED AS A PROVISION FOR THE PROTECTION OF THE GOVERNMENT, AND A FAILURE TO DECLARE A BID NONRESPONSIVE WHICH DID NOT COMPLY THEREWITH CANNOT BE SAID TO AFFECT THE BID PRICE OR THE QUANTITY OR QUALITY OF WORK TO BE PERFORMED IN ANY MANNER WHICH WOULD RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO THE BIDDER AND THUS INFRINGE UPON THE ENFORCEABLE RIGHTS OF OTHER BIDDERS.

WHETHER, AS YOU CONTEND, THIS CONCLUSION WOULD REQUIRE SIMILAR TREATMENT OF A BID WHICH OMITTED BOTH PRICE AND THE SYMBOL "1N/C" ON ALL ITEMS WHICH ARE TO BE EXCLUDED FROM CONSIDERATION IN BID PRICE EVALUATION IS A QUESTION WHICH IS NOT BEFORE US IN THE PRESENT CASE. WHILE WE HAVE SERIOUS RESERVATIONS WITH RESPECT TO THE ACCURACY OF SUCH CONCLUSION, WE MUST DECLINE TO DISCUSS ITS MERITS ON A HYPOTHETICAL BASIS.

AS A FINAL POINT ON WHICH YOU BASE YOUR REQUEST FOR RECONSIDERATION, YOU POINT OUT THAT THE BID PRICES ON THE SERVICES TO BE PERFORMED UNDER SECTION 3, ITEM III, PARAGRAPH 14 (I) (7), WERE TO BE CONSIDERED IN ARRIVING AT THE EVALUATED BID PRICE, AND THAT MCGREGOR INSERTED THE SYMBOL "0" INSTEAD OF "1N/C" TO INDICATE THAT NO CHARGE WOULD BE MADE FOR SERVICES THEREUNDER. YOU THEREFORE CONTEND THAT THE FAILURE TO INSERT THE SYMBOL "1N/C" ON THIS ITEM RENDERED MCGREGOR'S BID NONRESPONSIVE AND REQUIRED ITS REJECTION.

WE ARE UNABLE TO AGREE WITH YOUR CONCLUSION ON THIS POINT. TO FOLLOW SUCH REASONING TO ITS LOGICAL CONCLUSION WOULD REQUIRE THE REJECTION OF A BID WHICH SUBSTITUTED THE WORDS "1NO CHARGE," OR ANY OTHER WORDS OR SYMBOLS CLEARLY INDICATIVE OF AN INTENT TO FURNISH WITHOUT CHARGE, FOR THE SYMBOL "1N/C" IN ITS BID ON AN EVALUATED ITEM. IT IS THEREFORE APPARENT THAT, WHILE THE INVITATION PRESCRIBED USE OF THE SYMBOL "1N/C" THE INTENT AND PURPOSE OF SUCH PROVISION CAN BE EXTENDED NO FURTHER THAN TO REQUIRE BIDDERS EITHER TO SUBMIT A BID PRICE ON SUCH ITEMS OR OTHERWISE CLEARLY INDICATE THAT NO CHARGE IS INTENDED. WHETHER THE "0" INSERTED BY MCGREGOR UNDER SECTION 3, ITEM III, PARAGRAPH 14 (I) (7) IS INTENDED TO REPRESENT A BID PRICE OF ZERO DOLLARS AND CENTS FOR SUCH SERVICES, OR WHETHER IT IS INTENDED AS A SUBSTITUTE FOR THE SYMBOL "1N/C" THEREFORE BECOMES ACADEMIC. THERE CAN BE NO DOUBT THAT MCGREGOR IS OFFERING SUCH SERVICES WITHOUT CHARGE, THAN AN AWARD BASED UPON THE BID AS SUBMITTED WOULD OBLIGATE MCGREGOR TO FURNISH THE SERVICES WITHOUT CHARGE, AND THAT IT WAS PROPER TO INCLUDE THEM IN THE EVALUATED BID PRICE ON THAT BASIS. REJECTION OF MCGREGOR'S BID AS NONRESPONSIVE BECAUSE OF ITS FAILURE TO INSERT "N/C" UNDER THIS ITEM WOULD THEREFORE HAVE BEEN IMPROPER.

IN VIEW OF THE ABOVE, OUR DECISION OF OCTOBER 7 HOLDING THAT REJECTION OF MCGREGOR'S BID WAS IMPROPER AND THAT THE CONTRACT AWARDED TO YOUR COMPANY SHOULD BE CANCELED IS AFFIRMED.