B-173492, NOV 29, 1971

B-173492, NOV 29, 1971

BID PROTEST - CORRECTED MISTAKE IN BID - DISPLACEMENT OF OTHERWISE LOW BIDDER DECISION DENYING PROTEST AGAINST PROPOSED AWARD OF A CONTRACT TO TIDEWATER MANAGEMENT SERVICES, INC., UNDER AN IFB ISSUED BY LETTERKENNY ARMY DEPOT FOR CUSTODIAL AND DISINFECTANT SERVICES. UNDER ASPR 2-406.3, CORRECTION OF A MISTAKE IN BID IS PERMITTED, ALTHOUGH THE CORRECTED BID WILL DISPLACE AN OTHERWISE LOW BIDDER, IF THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. THEREFORE, WHERE THE TOTAL OF THE INDIVIDUAL ITEMS ON TIDEWATER'S UNIT PRICE SCHEDULE TOTALED $4,095 WHICH IS CLEARLY SUPPORTED BY ARITHMETIC, THIS FIGURE MAY REPLACE THE $7,094 INSERTED AS THE TOTAL. THEREFORE, BECAUSE THE INTENDED BID WAS CLEARLY DETERMINED FROM THE MATERIAL SUBMITTED WITH THE BID PACKAGE, CORRECTION IS PERMITTED EVEN THOUGH DISPLACEMENT OF A LOWER BIDDER RESULTS. IT SHOULD BE NOTED PARENTHETICALLY THAT PROTESTANT WOULD NOT HAVE BEEN LOW BIDDER, HAD THEY NOT VERIFIED A TOTAL BID LOWER THAN THE TOTALS OF THE UNIT PRICE SCHEDULE WHICH HAD RESULTED FROM THEIR ADMINISTRATIVE ERROR.

TO HUDSON, CREYKE, KOEHLER, BROWN & TACKE:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 14, 1971 AND SEPTEMBER 10, 1971, IN BEHALF OF JAYHAWK ENTERPRISE, PROTESTING AWARD OF A CONTRACT TO TIDEWATER MANAGEMENT SERVICES, INCORPORATED, UNDER INVITATION FOR BIDS NO. DAAG34-71-B-0029 ISSUED BY LETTERKENNY ARMY DEPOT, CHAMBERSBURG, PENNSYLVANIA.

THE INVITATION SOUGHT BIDS FOR FURNISHING CUSTODIAL AND DISINFECTANT SERVICES FOR ADMINISTRATIVE AREAS, SHOPS, WAREHOUSES, OFFICES AND LATRINES FOR FISCAL YEAR 1972. AS PART OF THE BID PACKAGE EACH OFFEROR WAS FURNISHED A UNIT PRICE SCHEDULE COVERING THE VARIOUS TASKS AND AREAS TO BE SERVICED UNDER THE SOLICITATION WITH PROVISION THEREIN FOR PRICE ENTRIES TO BE MADE ON EACH APPLICABLE ITEM IN THE SCHEDULE. THE SOLICITATION EXPRESSLY PROVIDED THAT THE UNIT PRICE SCHEDULES ARE MADE PART OF THE INVITATION AND MUST BE RETURNED WITH THE OFFEROR'S BID.

PARAGRAPH D-7 OF THE INVITATION, PROVIDES, INSOFAR AS IS PERTINENT TO THIS MATTER, AS FOLLOWS:

"D-7 UNIT PRICE SCHEDULE: THE UNIT PRICE SCHEDULES ATTACHED ARE HEREBY MADE A PART OF THIS INVITATION AND ANY RESULTING CONTRACT AND MUST BE RETURNED IN TRIPLICATE WITH THE BID. AN ENTRY MUST BE MADE FOR EACH INDIVIDUAL ITEM OF THESE SCHEDULES, EITHER THE APPLICABLE PRICE, OR CLEARLY MARKED NO CHARGE.

"THE TOTAL PRICE OF COLUMNS NUMBER 1 AND 2 OF THE UNIT PRICE SCHEDULE, PART XII AND COLUMN NUMBER 1 OF THE UNIT PRICE SCHEDULE, PART XIII WILL EQUAL THE UNIT PRICE PER MONTH FOR ITEM NUMBER 0001 OF THE INVITATION SCHEDULE.

"THE TOTAL PRICE OF COLUMN NUMBER 6 OF THE UNIT PRICE SCHEDULE, PART XII AND COLUMN NUMBER 3 OF THE UNIT PRICE SCHEDULE, PART XIII WILL EQUAL THE UNIT PRICE AND AMOUNT PER YEAR FOR ITEM NUMBER 0004 OF THE INVITATION SCHEDULE.

FIVE BIDS WERE RECEIVED AND OPENED. JAYHAWK WAS THE APPARENT LOW BIDDER (AFTER DEDUCTION OF 1/2 PERCENT PROMPT PAYMENT DISCOUNT), WITH A NET TOTAL OF $454,429.61. TIDEWATER SUBMITTED THE NEXT LOW BID (AFTER DEDUCTION OF 1/4 PERCENT PROMPT PAYMENT DISCOUNT) OF $454,676.95 NET, A DIFFERENCE OF $247.34. OTHER BIDS RANGED FROM $523,153.21 TO A HIGH OF $709,820.00. LETTERS DATED MAY 17, 1971, JAYHAWK AND TIDEWATER WERE REQUESTED TO VERIFY THEIR BID PRICES. IN ADDITION, JAYHAWK'S ATTENTION WAS INVITED TO THE FACT THAT THE UNIT PRICE SCHEDULES FOR ITEMS 0001 AND 0003 THROUGH 0006 DO NOT AGREE WITH THE BID PRICE NOTWITHSTANDING THE REQUIREMENTS IN THE INVITATION. SIMILARLY, TIDEWATER WAS ADVISED THAT ITS UNIT PRICE SCHEDULES FOR ITEMS 0001, 0004 AND 0007 DO NOT AGREE WITH ITS BID PRICE. NOTWITHSTANDING THE FACT THAT UNIT PRICE SCHEDULE COLUMN TOTALS WERE GREATER THAN THE AMOUNTS INSERTED IN THE BID SCHEDULE, AND WERE EXPLAINED AS ADMINISTRATIVE ERRORS IN TRANSCRIBING, JAYHAWK ADVISED THE CONTRACTING OFFICER BY LETTER DATED MAY 24, 1971, THAT THE BID PRICES WERE FIRM.

IN THE CASE OF TIDEWATER, THE SUBSTANTIVE ERROR WAS IN CONNECTION WITH ITEM 0004, VENETIAN BLIND CLEANING. IN THE BID SCHEDULE THE AMOUNT OF $7,094.00 HAD BEEN INSERTED, WHEREAS THE SUM OF THE PRICES ON THE UNIT PRICE SCHEDULE TOTALED $4,095.00, WHICH TIDEWATER STATES IS THE INTENDED BID TOTAL FOR ITEM 0004. IN ITS LETTER DATED JUNE 8, 1971, TIDEWATER ADVISED THE CONTRACTING OFFICER THAT THE SUBTOTALS OF THE SEVERAL PAGES OF THE UNIT PRICE SCHEDULE WERE LISTED CORRECTLY BUT HAD BEEN TOTALED INCORRECTLY ON ITS WORKSHEETS AND THE INCORRECT TOTAL CARRIED OVER TO THE BID SCHEDULE. TIDEWATER ALSO ADVISED THAT A 39 CENTS ERROR WAS MADE IN TOTALING THE MONTHLY UNIT PRICE RESULTING IN AN OVERSTATEMENT OF THE BID PRICE BY $4.68 (12 X .39). THE BID PRICE ON ITEM 0007 WAS STATED TO BE CORRECT. A CORRECTION OF THE TIDEWATER BID WOULD LOWER ITS TOTAL BID BY $3003.68 ($7094 LESS $4095 PLUS $4.68) AND WOULD RESULT IN THE DISPLACEMENT OF JAYHAWK AS LOW BIDDER ON THE PROCUREMENT.

AN EXAMINATION OF THE RECORD HERE INDICATES THE FOLLOWING CONCERNING THE UNIT PRICE SCHEDULES AND BID SCHEDULES OF JAYHAWK AND TIDEWATER:

JAYHAWK

UNIT PRICE SCHEDULE BID SCHEDULE

ITEM NO. TOTALS PERIOD UNIT PRICE AMOUNT

0001 $35,491.44 12 MO. $35,122.98 $421,475.76

0002 13,890.87 1 YR. 13,895.87 13,895.87

0003 8,302.80 1 YR. 8,302.80 8,302.80

0004 2,270.00 1 YR. 2,270.00 2,270.00

0005 3,726.54 1 YR. 3,726.54 3,726.54

0006 2,987.69 1 YR. 2,897.89 2,897.89

0007 102.00 12 MO. 102.00 1,224.00

0008 56.16 52 DAYS 56.16 2,920.32

IF THE UNIT PRICES AS SHOWN IN THE UNIT PRICE SCHEDULE ARE PROPERLY EXTENDED AND TOTALED, THE GROSS AMOUNT WOULD BE $461,219.50, WHICH, WHEN SUBJECTED TO A 1/2 PERCENT TIME DISCOUNT, WOULD LEAVE A NET FIGURE OF $458,913.40 AS COMPARED TO THE FIGURES OF $458,713.18 AND $454,429.61, RESPECTIVELY, ON THE BID SCHEDULE.

TIDEWATER

UNIT PRICE SCHEDULE BID SCHEDULE

ITEM NO. TOTALS PERIOD UNIT PRICE AMOUNT

0001 $35,472.13 12 MO. $35,472.52 $425,670.24

0002 5,348.85 1 YR. 5,348.85

0003 5,907.00 1 YR. 5,907.00

0004 4,095.00 1 YR. 7,094.00

0005 1,714.00 1 YR. 1,714.00

0006 6,270.00 1 YR. 6,270.00

0007 80.58 12 MO. 80.58 966.96

0008 54.72 52 DAYS 54.72 2,845.44

AS IN THE CASE OF JAYHAWK, IF THE UNIT PRICES AS SHOWN IN THE UNIT PRICE SCHEDULE ARE PROPERLY EXTENDED AND TOTALED, THE GROSS RESULT WOULD AMOUNT TO $452,812.81, WHICH, WHEN SUBJECTED TO A 1/4 PERCENT TIME DISCOUNT, WOULD LEAVE A NET FIGURE OF $451,680.78 AS COMPARED TO THE FIGURES OF $455,816.49 AND $454,676.95, RESPECTIVELY, ON THE BID SCHEDULE.

IT IS YOUR CONTENTION THAT TIDEWATER IS INELIGIBLE FOR AWARD FOR THREE REASONS: (1) ITS AGGREGATE BID WAS NOT THE LOWEST BID RECEIVED, (2) ITS BID IS AMBIGUOUS AND MAY NOT BE CONSIDERED FOR AWARD, AND (3) CORRECTION OF THE AMBIGUOUS BID IS IMPROPER UNDER THE PROCUREMENT REGULATIONS. AS TO YOUR REASON (3), IT IS YOUR CONTENTION THAT THE PROVISIONS OF PARAGRAPH 2- 406.3 OF THE ARMED SERVICES PROCUREMENT REGULATION ARE DISPOSITIVE OF THIS MATTER, PARTICULARLY SINCE IT CONCERNS THE QUESTION OF DISPLACEMENT OF AN OTHERWISE LOWER BIDDER.

ASPR 2-406.3 PROVIDES IN PERTINENT PART AS FOLLOWS:

"(A) THE DEPARTMENTS ARE AUTHORIZED TO MAKE THE FOLLOWING ADMINISTRATIVE DETERMINATIONS IN CONNECTION WITH MISTAKES IN BIDS, OTHER THAN APPARENT CLERICAL MISTAKES, ALLEGED AFTER OPENING OF BIDS AND PRIOR TO AWARD.

"(2) *** , IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO EXISTENCE OF THE MISTAKE AND AS TO THE BID ACTUALLY INTENDED, AND IF THE BID, BOTH AS UNCORRECTED AND AS CORRECTED, IS THE LOWEST RECEIVED, A DETERMINATION MAY BE MADE TO CORRECT THE BID AND NOT PERMIT ITS WITHDRAWAL.

"(3) WHERE THE BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE; PROVIDED, THAT, IN THE EVENT SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER 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 THE BID ITSELF. IF THE EVIDENCE IS CLEAR AND CONVINCING ONLY AS TO THE MISTAKE, BUT NOT AS TO THE INTENDED BID, A DETERMINATION PERMITTING THE BIDDER TO WITHDRAW HIS BID MAY BE MADE."

YOUR INITIAL AND THIRD CONTENTIONS ARE SO INTERWOVEN THAT A RESOLUTION OF ONE RESOLVES THE OTHER.

AS INDICATED BY THE QUOTED PROVISION, THE UNIT PRICE SCHEDULE IS AN INTEGRAL PART OF THE SUBMITTED BID, AND MUST BE CONSIDERED IN CALCULATING THE UNIT PRICE OF EACH ITEM ON THE BID SCHEDULE, WHICH IS ESSENTIALLY A COMBINATION OF ELEMENTS FROM THE UNIT PRICE SCHEDULE. SPECIFIC INSTRUCTIONS ARE GIVEN AS TO THE COMPUTATION OF THE UNIT PRICES, AND THE UNIT PRICE OF EACH ITEM IS REQUIRED TO EQUAL THE SUM OF APPROPRIATE COLUMNS OF THE UNIT PRICE SCHEDULE. HENCE THE UNIT PRICES OF THE SEVERAL ITEMS OF THE BID SCHEDULE AND THE EXTENSIONS THEREOF FOR THE PERIOD TO BE COVERED, DAYS, WEEKS, MONTHS OR YEAR, ARE READILY ASCERTAINABLE WITHOUT REFERENCE TO SOURCES BEYOND THE SUBMITTED BID DOCUMENTS.

AT THIS POINT IT MUST BE NOTED, AS IT APPEARS IN THE RECORD BEFORE US, THAT BUT FOR THE ERRORS IN ADDITION AND TRANSPOSITION OF FIGURES FROM THE UNIT PRICE SCHEDULE TO THE BID SCHEDULE IN THE JAYHAWK BID, THE JAYHAWK BID WOULD NOT HAVE BEEN LOW NOTWITHSTANDING THE ERROR IN THE TIDEWATER BID. IT IS THE CONFIRMATION BY JAYHAWK OF ITS COMPUTED BID, IN DISAGREEMENT WITH THE UNIT PRICE SCHEDULE, WHICH MAKES IT THE APPARENT LOW BID. HOWEVER THAT MAY BE, WE MUST CONSIDER THE APPLICATION OF THE REGULATIONS TO THE TIDEWATER BID.

WHEN A MISTAKE HAS BEEN ALLEGED BEFORE AWARD OF A CONTRACT, OUR OFFICE HAS PERMITTED CORRECTION IF CLEAR AND CONVINCING EVIDENCE IS PRESENTED TO ESTABLISH (1) THAT A MISTAKE WAS MADE, (2) THE NATURE OF THE MISTAKE AND HOW IT AROSE, AND (3) WHAT THE BID WOULD HAVE BEEN EXCEPT FOR THE ERROR. CF. 37 COMP. GEN. 210 (1957). FURTHER, WHEN CORRECTION WILL DISPLACE ANOTHER BIDDER, THIS EVIDENCE MUST BE FOUND IN THE INVITATION AND BID DOCUMENTS, NOT BY THE AID OF EXTRINSIC EVIDENCE SUPPLIED BY THE BIDDER. SEE ASPR 2-406.3(A)(3), SUPRA.

IN THE PRESENT CASE THE EXISTENCE OF A MISTAKE ON BID ITEM 0004 AND THE INTENDED BID IS CLEAR FROM THE BID DOCUMENTS. WITH THE EXCEPTION OF ITEMS 0001 AND 0004, THE CALCULATIONS FROM THE UNIT PRICE SCHEDULE ARE POSTED CORRECTLY TO THE BID SCHEDULE. THE ERROR ON ITEM 0001 IS OF A MINOR NATURE (39 CENTS PER MONTH FOR 12 MONTHS) AND NEED NOT BE CONSIDERED FURTHER. AS TO ITEM 0004, THE TOTAL OF THE INDIVIDUAL ITEMS ON THE UNIT PRICE SCHEDULES TOTALS $4,095, THE FIGURE TIDEWATER CLAIMS IT INTENDED. THIS INTENTION IS CLEARLY SUPPORTED BY THE ARITHMETIC. THE FIGURE SAID TO BE INTENDED IS ALSO MUCH MORE CLEARLY IN LINE WITH THE OTHER BIDS FOR THE ITEM THAN IS THE HIGHER FIGURE ACTUALLY INSERTED IN THE BID SCHEDULE. FINALLY, THE BID SCHEDULE FIGURE COULD BE CORRECT ONLY IF A PROFUSION OF SUBSTANTIAL ERRORS HAD BEEN MADE IN THE UNIT PRICE SCHEDULE. IN SUMMARY, THE BID SCHEDULE AND THE UNIT PRICE SCHEDULE TOTAL FOR ITEM 0004 ARE SUBSTANTIALLY INCONSISTENT WITH EACH OTHER EVEN THOUGH THE BID INSTRUCTIONS CALL FOR THEM TO BE THE SAME. THE VALIDITY OF THE LATTER FIGURE IS SUPPORTED BOTH BY THE DETAIL UNIT PRICES IN THE UNIT PRICE SCHEDULE AND THE REASONABLENESS OF THE FIGURE AS COMPARED TO THE OTHER BIDS. CF. 49 COMP. GEN. 12 (1969).

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE DECISIONS OF OUR OFFICE CITED IN YOUR LETTER OF JULY 14, 1971. SUFFICE IT TO SAY THAT THE FACTS OF EACH ARE DISTINGUISHABLE FROM THOSE AT HAND. THE CITED CASES CONCERN, IN THE MAIN, ERRORS IN EXTENSIONS OF LISTED UNIT PRICES TO THE TOTAL COLUMN ON THE SCHEDULE OR AGGREGATE TOTALS IN DISAGREEMENT WITH THE SUM OF ITEM TOTALS. IN ANY EVENT THE CONCLUSION TO BE DRAWN FROM THE DECISIONS IS THAT THE RESULT IS DETERMINED BY THE TERMS OF THE SOLICITATION AND THE INFORMATION REQUIRED TO BE FURNISHED IN CONJUNCTION WITH THE TOTAL BID. WHERE THE INTENDED BID CAN CLEARLY BE DETERMINED FROM THE MATERIAL SUBMITTED WITH THE BID PACKAGE, CORRECTION IS PERMITTED EVEN WHERE DISPLACEMENT OF A LOWER BIDDER RESULTS.

IN LIGHT OF THE FOREGOING, WE CONCLUDE THAT THE POSITION OF THE ADMINISTRATIVE OFFICE, THAT THE SUM OF THE APPROPRIATE UNIT PRICE SCHEDULE COLUMNS IS THE INTENDED BID AMOUNT FOR ITEM 0004, AND THE ERROR OCCURRED IN TRANSFERRING THE TOTAL FROM ONE SCHEDULE TO ANOTHER, IS REASONABLE AND SHOULD NOT BE DISTURBED. SEE 41 COMP. GEN. 160, 163 (1961). FOR THE REASONS STATED WE ALSO CONCLUDE THAT THE TIDEWATER BID IS NOT AMBIGUOUS.

ACCORDINGLY, WE FIND NO BASIS ON WHICH TO OBJECT TO AN AWARD TO TIDEWATER MANAGEMENT SERVICES, INCORPORATED, AS PROPOSED BY THE CONTRACTING OFFICER. THEREFORE, YOUR PROTEST IS DENIED.