B-153639, SEP. 4, 1964

B-153639, SEP. 4, 1964

TO THE HONORABLE BERNARD L. BOUTIN, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

BY CORRESPONDENCE FROM YOUR GENERAL COUNSEL DATED MAY 15, 1964, WE HAVE BEEN FURNISHED A REPORT CONCERNING AN ALLEGED ERROR IN BID BY ROBERTSHAW CONTROLS COMPANY, LUX TIME DIVISION, UNDER INVITATION FOR BIDS NO. FPWGC-W -54706-A.

ON OCTOBER 3, 1963, THE GENERAL SERVICES ADMINISTRATION ISSUED THE ABOVE INVITATION SOLICITING BIDS ON AN INDEFINITE QUANTITY OF GENERAL PURPOSE ALARM CLOCKS FOR THE PERIOD JANUARY 1, THROUGH DECEMBER 31, 1964. PROVIDED IN THE INVITATION, BIDS WERE PUBLICLY OPENED ON OCTOBER 24, 1963. ON NOVEMBER 15, 1963, A REPRESENTATIVE OF ROBERTSHAW ALLEGED THAT THE PRICES QUOTED IN THE FIRM'S BID WERE CALCULATED ON THE BASIS OF FURNISHING THE REQUIRED PRODUCT IN STANDARD COMMERCIAL PACKAGES RATHER THAN THAT REQUIRED BY THE FEDERAL SPECIFICATION. IN A FOLLOW-UP LETTER DATED NOVEMBER 25, 1963, ROBERTSHAW REITERATED THE ALLEGATION. THE LETTER, IN PART, STATES:

"WE WISH TO CONFIRM OUR CONVERSATION CONCERNING SUBJECT INVITATION, DURING WHICH WE POINTED OUT THAT WE OVERLOOKED THE NEW PACKAGING AND PACKING SPECIFICATIONS IN MAKING OUR BID COVERING STOCK NO. 6645-530 1096 GENERAL PURPOSE ALARM CLOCK UNDER SUBJECT BID.

"AS YOU ARE AWARE, WE HAVE SUPPLIED THE GENERAL PURPOSE ALARM CLOCK UNDER CONTRACT GS-00S-38882 FOR THE CALENDAR YEAR 1963. WE DID NOT HAVE A CONTRACT DURING THE CALENDAR YEAR 1962, BUT FOR SEVERAL YEARS PRIOR TO 1962 WE SUPPLIED THIS CLOCK REGULARLY. DURING THE COURSE OF THESE SEVERAL CONTRACTS WE SUPPLIED OUR CLOCK IN STANDARD DOMESTIC PACK. UNFORTUNATELY WHEN WE PREPARED OUR QUOTATION UNDER THE SUBJECT INVITATION, WE ASSUMED THAT PACKING SPECIFICATIONS WERE THE SAME AS PREVIOUSLY. WE THEREFORE BID ON OUR CLOCK IN A STANDARD DOMESTIC PACKING, AND YOU WILL NOTE THAT A STATEMENT TO THIS EFFECT WAS MADE A PART OF OUR BID ON PAGE 9.'

THE EVIDENCE SHOWS THAT OTHER BIDDERS HAVE INCREASED THEIR BIDS THIS YEAR OVER THE PRIOR YEAR PROCUREMENT WHEREAS ROBERTSHAW'S PRICES HAVE DECREASED. NEVERTHELESS, AWARD WAS MADE TO ROBERTSHAW ON DECEMBER 18, 1963, ON THE BASIS OF THIS LOW BID AS SUBMITTED.

WHILE IT IS TRUE THAT THE RESPONSIBILITY FOR THE PREPARATION OF A BID IS UPON THE BIDDER, WHO ORDINARILY MUST BEAR THE CONSEQUENCES OF AN ERROR IN THE BID UPON WHICH A CONTRACT IS BASED, THAT RULE DOES NOT ENTITLE THE GOVERNMENT TO TAKE ADVANTAGE OF A BIDDER'S ERROR WHEN, AS IN THE PRESENT CASE, IT HAS BEEN ALLEGED AND SATISFACTORILY ESTABLISHED PRIOR TO AWARD. THE GENERAL RULE IS THAT THE 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.CLS. 526; AND 5 WILLISTON ON CONTRACTS, REV. EDITION, SECTION 1578. WE HAVE GENERALLY HELD THAT THE DEGREE OF PROOF REQUIRED TO JUSTIFY WITHDRAWAL OF A BID BEFORE AWARD IS IN NO WAY COMPARABLE TO THAT NECESSARY TO ALLOW CORRECTION OF AN ERRONEOUS BID. COMP. GEN. 441.

IN VIEW THEREOF, THE CONTRACTOR SHOULD BE PAID THE ADDITIONAL 14 CENTS PER CLOCK CLAIMED IN HIS NOVEMBER 25 COMMUNICATION. THIS AMOUNT WHEN ADDED TO ROBERTSHAW'S ORIGINAL BID OF $1.67 DOES NOT ALTER THE RELATIVE POSITIONS OF THE BIDDERS.

PARENTHETICALLY, WE SHOULD LIKE TO NOTE THAT ALTHOUGH ROBERTSHAW HAS CONTINUED DELIVERY, IT CANNOT BE SAID THAT HE HAS WAIVED ANY RIGHTS IN THE MATTER SINCE IT WAS INFORMALLY AGREED THAT DELIVERY WOULD BE MADE WITHOUT PREJUDICE.

IN THE LETTER OF MAY 15, 1964, THE POSITION APPEARS TO BE TAKEN THAT UNDER FPR 1-2.406-3 (A) (1) A BID MAY NOT BE WITHDRAWN AFTER OPENING UPON ALLEGATION OF ERROR UNLESS THE ERROR IS ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE. THE REGULATION PROVIDES ONLY THAT AN ADMINISTRATIVE DETERMINATION TO PERMIT WITHDRAWAL OF THE BID MUST BE BASED ON CLEAR AND CONVINCING EVIDENCE. SEE ALSO 38 COMP. GEN. 177. HOWEVER, A VALID AWARD DOES NOT NECESSARILY RESULT EVEN WHERE THE STANDARD FOR EVIDENCE IS NOT MET BY THE BIDDER. IN DOUBTFUL CASES SUCH AS THIS, WHERE EVIDENCE EXISTS TO REASONABLY SUPPORT THE ALLEGATION OF ERROR, BUT SUCH EVIDENCE IS NOT CLEAR AND CONVINCING, THE MATTER SHOULD BE SUBMITTED TO OUR OFFICE FOR DETERMINATION.