B-161063, JUN. 8, 1967

B-161063, JUN. 8, 1967

TO CHESAPEAKE INSTRUMENT CORPORATION:

REFERENCE IS MADE TO A TELEGRAM DATED MARCH 13, 1967, AND LETTERS DATED APRIL 4 AND MAY 17, 1967, PROTESTING AGAINST AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS NO. N00600-67-B-0441-S, ISSUED BY THE UNITED STATES NAVY PURCHASING OFFICE, WASHINGTON, D.C.

ENCLOSED IS A COPY OF OUR DECISION OF TODAY TO THE ATTORNEYS FOR ELECTROSPACE CORPORATION, WHEREIN THERE IS CONSIDERED ALSO YOUR CONTENTION THAT OTIS ELEVATOR COMPANY FAILED TO SUBMIT CERTAIN INFORMATION IN REGARD TO THE DATA ITEMS OF THE INVITATION.

CONSIDERING THE THREE REMAINING IRREGULARITIES IN THE OTIS BID RAISED BY YOU, WE CANNOT AGREE THAT THEY REQUIRE REJECTION OF THE OTIS BID WHEN VIEWED EITHER INDIVIDUALLY OR IN CONJUNCTION WITH THE OTHER DEFECTS. WITH RESPECT TO THE ERROR IN COMPUTATION OF THE TOTAL PRICE, AND THE FAILURE TO INITIAL A PRICE CHANGE, THE OTIS BID AS ADMINISTRATIVELY REPORTED REFLECTS AN INCREASE OF $1,060 OVER THE $1,015,472 STATED IN ITS BID AS THE TOTAL PRICE, EXCLUSIVE OF ITEMS 2, 16 AND 20. OTIS HAS CONFIRMED ITS UNIT PRICES FOR ITEM 1, ITEM 19A AND ITEM 19B--- THE ONLY ITEMS TO BE CONSIDERED IN ARRIVING AT THE TOTAL PRICE. AN EXAMINATION OF THE BID REVEALS THAT THE UNIT PRICES FOR THESE ITEMS WERE CORRECTLY EXTENDED, BUT THAT THERE WAS AN OBVIOUS ERROR IN THE ADDITION OF THESE EXTENDED PRICES. UNDER THE TERMS OF THE INVITATION, THE ONLY REASONABLE INFERENCE TO BE GAINED FROM THE VARIANCE IN THE EXTENDED PRICE AND THE TOTAL PRICE IS THE FACT OF MATHEMATICAL ERROR SINCE UNDER PARAGRAPH 1 (C) OF THE BIDDING INSTRUCTIONS INDIVIDUAL UNIT PRICES CONTROL AND THE BIDDER IS OBLIGATED TO FURNISH ALL OF THE ITEMS "AT THE PRICE SET OPPOSITE EACH ITEM.' CF. 43 COMP. GEN. 579; ID. 817. WE THEREFORE VIEW THE ADMINISTRATIVE CORRECTION OF THE TOTAL BID PRICE AS ENTIRELY PROPER. FURTHER, THE FAILURE OF OTIS TO INITIAL AN ERASURE OR CHANGE, AS REQUIRED IN PARAGRAPH 1 (B) OF THE INSTRUCTIONS TO BIDDERS, OCCURRED IN THE TOTAL PRICE COLUMN AND INVOLVED THE CROSSING OUT OF A PREVIOUS FIGURE AND THE ENTRY OF AN ERRONEOUS $1,015,472 TOTAL PRICE. THIS DEFECT WAS EFFECTIVELY WAIVED BY THE ADMINISTRATIVE CORRECTION OF THE TOTAL PRICE. SEE B-149134 DATED SEPTEMBER 20, 1962, WHEREIN WE HELD THAT THE FAILURE TO INITIAL CHANGES MAY BE WAIVED AS A MINOR IRREGULARITY WHERE THERE IS NO QUESTION OF THE FIGURE INTENDED.

THE FAILURE TO PRINT OR TYPE THE CORPORATE NAME ON THE SCHEDULE AND EACH CONTINUATION SHEET IS SIMILARLY A MINOR DEFECT. PARAGRAPH 1 (B) OF THE BIDDING INSTRUCTIONS, AS MODIFIED ON PAGE 25 OF THE INVITATION BY SECTION I, PARAGRAPH (4), PROVIDED THAT "THE BIDDER SHALL PRINT OR TYPE HIS NAME ON THE SCHEDULE AND EACH CONTINUATION SHEET THEREOF ON WHICH HE MAKES AN ENTRY" AND FURTHER ADVISED THAT "EACH PAGE OF THIS SCHEDULE ON WHICH AN ENTRY IS TO BE MADE HAS A BLOCK AT THE BOTTOM THEREOF FOR THIS PURPOSE.' OF THE PAGES IN THE SCHEDULE REQUIRING AN ENTRY AND PROVIDING THE BLOCK, OTIS FAILED TO COMPLY IN ONLY ONE INSTANCE, NAMELY, ON PAGE 2 OF THE SCHEDULE. IT CERTAINLY COULD NOT BE ARGUED FROM THIS FACT THAT THE SIGNATURES ON THE ORIGINAL BID AND AMENDMENT 0001 ARE INEFFECTIVE. SEE 42 COMP. GEN. 36.

CONCERNING THE CUMULATIVE EFFECT TO BE ASCRIBED TO THE IRREGULARITIES IN THE OTIS BID, YOU ARGUE, BY ANALOGY TO HEYER PRODUCTS COMPANY, INC. V UNITED STATES, 135 CT.CL. 63 (1956), AND GREEN MANOR CONSTRUCTION CO., INC. V UNITED STATES, 169 CT.CL. 413 (1965), THAT INCIDENT TO THE IMPLIED OBLIGATION ON THE PART OF THE GOVERNMENT TO FAIRLY EVALUATE ALL BIDS,"MUTUALITY * * * REQUIRES THE BIDDER TO ATTEMPT TO FOLLOW INSTRUCTIONS AND EXERCISE DUE CARE IN FILLING OUT HIS BID.' WE MAY AGREE THAT ERRORS OR OMISSIONS IN BIDS ARE ATTRIBUTABLE TO A LACK OF DUE CARE IN VARYING DEGREES. TO THE EXTENT THAT A BID AS SUBMITTED CONTAINS IRREGULARITIES, THE BIDDER BEARS THE NOT INCONSEQUENTIAL RISK THAT THE CHARACTER OF THE DEFECT WILL RENDER THE BID NONRESPONSIVE. IT IS THE POSITION OF OUR OFFICE THAT IT IS IN THE GOVERNMENT'S INTEREST TO PERMIT CORRECTION OR WAIVER IN THOSE INSTANCES NOT AFFECTING THE RESPONSIVENESS OF A BID.