B-147949, FEB. 2, 1962

B-147949, FEB. 2, 1962

TO SUPERIOR ELECTRONIC APPARATUS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1961, PROTESTING REJECTION OF YOUR BID UNDER INVITATION FOR BIDS NO. SC-36-039-62-96-A2 51, WHICH WAS FORWARDED TO OUR OFFICE BY DEPARTMENT OF THE ARMY LETTER OF JANUARY 12, 1962.

THE INVITATION, ISSUED SEPTEMBER 27, 1961, SOLICITED BIDS FOR ITEM 1, PANEL SIGNAL DISTRIBUTION AUDIO SB-448/) (GSQ, AND ANCILLARY ITEMS 2 AND 3, PROVISIONING DOCUMENTATION AND ITEM DESCRIPTION LIST FOR ITEM 1. ALSO INCLUDED IN THE INVITATION WAS ITEM 4, PANEL PATCHING COMMUNICATION SB- 447/) (GSQ, TOGETHER WITH ANCILLARY ITEMS 5 AND 6, PROVISIONING DOCUMENTATION AND ITEM DESCRIPTION LIST FOR ITEM 4. PROVISION T SPECIFIES THAT EACH END ITEM AND ITS ANCILLARY ITEMS WILL BE TREATED AS ITEM-GROUPS AND AWARD WILL BE MADE ONLY FOR ITEM-GROUPS AND NOT FOR INDIVIDUAL ITEMS.

CLAUSE 28 OF THE GENERAL PROVISIONS IN THE INVITATION STATES THE FOLLOWING REQUIREMENT:

28. DATA PRICING (APP 9-202.LA (1) ( (MAY 1960)

"WHERE DATA IS SPECIFIED FOR DELIVERY, BIDDERS ARE REQUESTED TO INSERT OPPOSITE THE DATA ITEMS THE PRICE OF SUCH DATA. IF THE PRICE OF THE DATA IS INCLUDED IN THE PRICE OF THE END ITEMS THE STATEMENT "DATA PRICE IS INCLUDED IN THE PRICE OF THE END ITEMS" MAY BE USED. IF THE BIDDER DOES NOT INSERT THE PRICE AS REQUESTED ABOVE, OR INSERTS THE WORDS "NO CHARGE FOR DATA," OR SIMILAR LANGUAGE, THE GOVERNMENT WILL CONSIDER AND THE BIDDER AGREES THAT THE DATA PRICE IS INCLUDED IN THE COST OF THE APPROPRIATE END ITEMS.

"NOTE: A "NO BID" FOR ANCILLARY ITEMS MAY RESULT IN A DETERMINATION THAT THE BID IS NON-RESPONSIVE. ANCILLARY ITEMS GENERALLY CONSIST OF DATA ITEMS, SUCH AS DRAWINGS, ITEM DESCRIPTION LISTS, REPAIR STANDARDS, TECHNICAL LITERATURE, ETC., AND MAY SOMETIMES INCLUDE GAGES AND ELECTRONIC TEST FIXTURES FOR USE WITH THE PRINCIPAL EQUIPMENT ITEMS.'

WHEN BIDS WERE OPENED ON OCTOBER 27, 1961, THE CONTRACTING OFFICER FOUND THAT YOUR FIRM DID NOT INSERT UNIT PRICES FOR ANCILLARY ITEMS 2 AND 3 UNDER ITEM 1, ALTHOUGH YOU DID SUBMIT UNIT PRICES FOR ANCILLARY ITEMS 5 AND 6 UNDER ITEM 4. THE CONTRACTING OFFICER, IN VIEW OF THIS INCONSISTENCY IN BIDDING, CONCLUDED THAT YOU DID NOT INTEND THE BID PRICE ON ITEM 1 TO INCLUDE THE COST OF DATA ITEMS 2 AND 3. HOWEVER, SINCE HE COULD NOT DETERMINE FROM YOUR BID AS SUBMITTED WHAT PRICE YOU INTENDED, HE FOUND YOUR BID TO BE NONRESPONSIVE. A CONTRACT FOR ITEMS 1, 2 AND 3 WAS AWARDED TO ELECTRONIC-METALS DEVELOPMENT CORPORATION ON NOVEMBER 30, 1961, AT A TOTAL PRICE OF $32,112, WHICH IS $1,637.22 MORE THAN YOUR UNCORRECTED BID FOR THE SAME NUMBER OF UNITS. THE PRICES QUOTED ON ITEM 4 AND ITS ANCILLARY ITEMS ARE NOT AT ISSUE, SINCE YOU WERE NOT LOW BIDDER FOR THOSE ITEMS.

THE CONTRACTING OFFICER DID NOT AFFORD YOU AN OPPORTUNITY TO VERIFY YOUR BID SINCE HE FELT THAT TO DO SO WOULD GIVE YOU TWO CHANCES AT THE AWARD BY ALLOWING YOU THE OPTION OF VERIFYING YOUR BID AND SECURING THE AWARD, OR ALLEGING MISTAKE AND AVOIDING THE AWARD.

YOUR LETTER OF DECEMBER 4, 1961, TO THE CONTRACTING OFFICER CONFIRMED HIS CONCLUSION THAT YOU HAD MADE AN ERROR IN OMITTING DATA PRICES FOR ITEMS 2 AND 3. YOU SUBMITTED A PHOTOSTAT OF YOUR FILE COPY OF THE BID SHOWING PRICES OF $250 AND $350 FOR THOSE TWO ITEMS,WHICH WOULD HAVE INCREASED YOUR BID BY THE AGGREGATE SUM OF $600. DESPITE THE ERROR OF OMITTING THE DATA PRICES FOR ITEMS 2 AND 3, YOU DID NOT REQUEST CORRECTION OF YOUR BID BUT SUGGESTED THAT CLAUSE 28 OF THE GENERAL PROVISIONS SHOULD BE APPLIED TO PERMIT AWARD OF A CONTRACT TO YOUR FIRM FOR ITEMS 1, 2 AND 3 AT THE PRICE QUOTED FOR ITEM 1.

THERE WOULD BE LITTLE QUESTION OF THE APPLICABILITY OF CLAUSE 28 IN A CASE WHERE A BIDDER OMITTED ALL DATA PRICES IN APPARENT AGREEMENT WITH THE PROVISIONS OF THE CLAUSE. HOWEVER, IN A CASE SUCH AS THE PRESENT ONE, IN WHICH YOU INSERTED PRICES FOR DATA ITEMS 5 AND 6 BUT OMITTED PRICES FOR DATA ITEMS 2 AND 3 THROUGH ERROR, IT CANNOT BE SAID THAT YOU WERE RELYING ON THE DATA PRICING PROVISIONS OF CLAUSE 28. THE GENERAL RULE IS THAT ACCEPTANCE OF A BID WITH KNOWLEDGE OF ERROR THEREIN DOES NOT CONSUMMATE A VALID AND BINDING CONTRACT. SEE NASON COAL COMPANY V. UNITED STATES, 64 CT.CL. 526; ALTA ELECTRIC AND MECHANICAL COMPANY V. UNITED STATES, 90 CT.CL. 466. THE CONTRACTING OFFICER COULD NOT PROPERLY ACCEPT YOUR OFFER NOR COULD HE DETERMINE THE PRICE YOU INTENDED FROM YOUR BID AS IT WAS SUBMITTED. IN OUR OPINION, THE CONTRACTING OFFICER HAD NO CHOICE BUT TO DECLARE YOUR BID NONRESPONSIVE.

THE QUESTION TO BE FACED AFTER THIS FINDING WAS WHETHER A BIDDER MAY BE REQUESTED TO CONFIRM A BID THAT HAS BEEN FOUND NONRESPONSIVE. CONFIRMATION HAS BEEN PERMITTED IN A CERTAIN LIMITED NUMBER OF CASES INVOLVING BIDS THAT WERE OTHERWISE RESPONSIVE, BUT SUCH CONFIRMATION MAY NOT BE INCONSISTENT WITH A REASONABLE INTERPRETATION OF THE BID AS SUBMITTED. SEE 39 COMP. GEN. 653. CONFIRMATION OF YOUR ERROR PRIOR TO AWARD WOULD NOT HAVE RENDERED YOUR BID RESPONSIVE AND TO HAVE PERMITTED YOU TO WAIVE THE CONSEQUENCES OF YOUR ERROR OR TO CHANGE YOUR BID BY INSERTING DATA PRICES IN ORDER TO MAKE YOUR BID RESPONSIVE WOULD HAVE BEEN TANTAMOUNT TO PERMITTING YOU TO SUBMITA NEW BID AFTER THE PRICES OF OTHER BIDDERS HAD BEEN EXPOSED AT THE BID OPENING. THE RULE IS NOW WELL SETTLED THAT AN ALLEGATION OF ERROR MAY BE CONSIDERED ONLY IN A CASE IN WHICH THE BID IS RESPONSIVE TO THE INVITATION AND IS OTHERWISE PROPER FOR ACCEPTANCE. 38 COMP. GEN. 819; 40 ID. 432. WE BELIEVE IT IS EQUALLY IMPORTANT TO THE PRESERVATION OF EQUAL COMPETITION UNDER THE BIDDING SYSTEM THAT A BIDDER NOT BE ALLOWED TO FOREGO A CLAIM OR ERROR IN ORDER TO BECOME ELIGIBLE FOR AWARD. SEE 37 COMP. GEN. 851. ANY CONDITION OR RESERVATION WHICH GIVES A BIDDER A CHANCE TO SECOND GUESS HIS COMPETITORS AFTER BID OPENING MUST BE REGARDED AS FATAL TO THE BID.

FOR THE REASONS STATED WE CONCUR WITH THE ACTION OF THE CONTRACTING OFFICER IN DECLARING YOUR BID NONRESPONSIVE. WE FIND NO LEGAL BASIS FOR DISTURBING THE AWARD TO ELECTRONIC-METALS DEVELOPMENT CORPORATION.