B-190502, NOV 30, 1977

B-190502, NOV 30, 1977

BIDDER ALLOWED TO CORRECT ERROR AFTER OPENING OF BIDS EVEN THOUGH CORRECTED BID BECAME LOWEST BID AND DISPLACED ANOTHER BID WHICH HAD BEEN LOW SINCE MISTAKE AND INTENDED BID PRICE WERE ASCERTAINABLE FROM INVITATION AND BID ITSELF.

FARBOIL COMPANY:

BY LETTER DATED OCTOBER 18, 1977, THE GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION (GSA), REQUESTED AN ADVANCE DECISION FROM OUR OFFICE IN CONNECTION WITH GSA'S RECOMMENDATION THAT FARBOIL COMPANY OF BALTIMORE, MARYLAND (FARBOIL), BE ALLOWED TO CORRECT AN ALLEGED MISTAKE IN ITEM 11A OF ITS BID SUBMITTED IN RESPONSE TO GSA SOLICITATION NO. 10PR-ZSS-6227.

THE SUBJECT SOLICITATION REQUESTED BIDS FOR SUPPLY REQUIREMENTS FOR VARIOUS GSA SUPPLY DEPOTS FOR ANTIFOULING PAINT, FSC 8010. THE SUPPLIES WERE CLASSIFIED IN 16 GROUPS OF ITEMS AND AWARDS WERE TO BE MADE ITEM-BY- ITEM, ON THE BASIS OF THE GOVERNMENT'S ESTIMATED PEAK MONTHLY REQUIREMENTS, THE LOW BIDDER TO BE DETERMINED BY MULTIPLYING THE UNIT PRICE SUBMITTED ON EACH ITEM BY THE ESTIMATED QUANTITY SPECIFIED AND ADDING THE RESULTING EXTENSIONS.

ITEM 11A COVERED 300 GALLONS OF ANTIFOULING PAINT, NSN-8010-00-753 4945, FOR DELIVERY TO NORFOLK, VIRGINIA. OPENING DATE WAS JULY 20, 1977, AND SIX BIDS WERE RECEIVED. THE APPARENT LOW BID OF $152,400 FOR ITEM 11 WAS SUBMITTED BY SEAGUARD CORPORATION, PORTSMOUTH, VIRGINIA (SEAGUARD).

THE CONTRACTING OFFICER STATES THAT SUBSEQUENT TO BID OPENING SHE REVIEWED THE BIDS AND CONCLUDED THAT THERE EXISTED A POSSIBILITY OF A MISTAKE IN FARBOIL'S BID. BY LETTER OF JULY 28, 1977, FARBOIL WAS REQUESTED TO VERIFY ITS PRICE AND, IF THERE WAS A MISTAKE, TO SUBMIT CONCLUSIVE EVIDENCE ESTABLISHING THE VALIDITY OF THE ERROR. IN ITS LETTER OF AUGUST 1, 1977, FARBOIL STATED THAT ITS UNIT PRICE FOR ITEM 11A SHOULD HAVE BEEN $15.14, RATHER THAN $75.70 AS SHOWN ON ITS BID. FARBOIL WAS AGAIN CONTACTED AND REQUESTED TO FURNISH WORKSHEETS AND ANY OTHER EVIDENCE WHICH WOULD SUPPORT THE ALLEGED MISTAKE. IN ITS LETTER OF AUGUST 9, 1977, FARBOIL ENCLOSED A COPY OF ITS PAGE 13 OF THE SOLICITATION, WHICH SHOWS HANDWRITTEN PRICES. THE OFFEROR EXPLAINED THAT THE ERROR WAS THE RESULT OF EXTENDING THE PRICE ON THE WORKSHEET TO A FIVE-GALLON CONTAINER AT $75.70, I.E., $15.14 X 5, INSTEAD OF LEAVING IT AT $15.14 FOR THE ONE- GALLON CONTAINEER. BIDS SUBMITTED BY OTHER BIDDERS RANGED IN PRICE FROM $14.00 TO $19.81. IF FARBOIL IS PERMITTED TO CORRECT ITS BID, TAKING INTO CONSIDERATION PROMPT PAYMENT DISCOUNTS, FARBOIL WILL DISPLACE SEAGUARD AS LOW BIDDER.

OUR OFFICE HAS HELD ON NUMEROUS OCCASIONS THAT IN ORDER FOR A BIDDER TO BE ALLOWED TO CORRECT AN ERROR AFTER BIDS ARE OPENED WHICH WOULD RESULT IN THE DISPLACEMENT OF A LOWER BID, THE EXISTENCE OF THE MISTAKE AS WELL AS THE INTENDED BID PRICE MUST BE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND BID ITSELF. 37 COMP.GEN. 210 (1957); 49 COMP.GEN. 48 (1969). IN THIS REGARD, SECTION 1-2.406-3(A) (2) OF THE FEDERAL PROCUREMENT REGULATIONS (1964 ED. CIRC. 1) STATES, IN PERTINENT PART, AS FOLLOWS:

"*** HOWEVER, IF SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER ACCEPTABLE BIDS, THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND BID ITSELF. ***"

WE ARE OF THE VIEW THAT A COMPARISON OF FARBOIL'S BID PRICE FOR ITEM 11A WITH THE PRICES OF OTHER BIDDERS FOR THIS ITEM, AS WELL AS FARBOIL'S BID PRICES FOR OTHER ONE-GALLON CANS ON OTHER ITEMS, INDICATES THAT FARBOIL'S BID PRICE FOR ITEM 11A WAS OUT OF LINE AND WAS SUFFICIENT TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR. THUS, THE EVIDENCE IS CLEAR AND CONVINCING WITH RESPECT TO THE FACT THAT A MISTAKE WAS MADE. REGARDING THE QUESTION OF WHETHER THE EVIDENCE WAS CLEAR AS TO THE BID ACTUALLY INTENDED, A REVIEW OF FARBOIL'S BID PRICES INDICATES THAT WHEREVER FARBOIL BID ON BOTH ONE AND FIVE-GALLON CANS, AS ON ITEMS 1 AND 13, THE COST PER GALLON FOR THE FIVE-GALLON CAN WAS $0.30 PER GALLON LESS THAN FOR THE ONE-GALLON CAN. LOOKING AT ITEM 11A OF FARBOIL'S BID, WE NOTE THAT THE UNIT PRICE IS $75.40, WHICH WE CAN ONLY CONCLUDE IS AN ERRONEOUS EXTENSION OF THE UNIT PRICE TO A FIVE-GALLON UNIT, AND WE SEE THAT THE DIFFERENCE BETWEEN THE UNIT PRICE FOR ITEM 11B, THE FIVE-GALLON UNIT, IS $1.50 LESS, OR $0.30 PER GALLON LESS THAN THE ERRONEOUS EXTENSION ON ITEM 11A. THUS, IT IS APPARENT FROM THE FACE OF THE BID WHAT FARBOIL INTENDED TO BID ON ITEM 11A.

ACCORDINGLY, CORRECTION OF FARBOIL'S BID PRICE FOR ITEM 11A IS ALLOWED.