B-157063, SEP. 14, 1965

B-157063, SEP. 14, 1965

TO SKAGGS LANDSCAPE GARDENS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 22, 1965, AND TO YOUR SUBSEQUENT COMMUNICATIONS TO THIS OFFICE PROTESTING AGAINST THE AWARD OF A CONTRACT TO BLOUNTSTOWN MEMORIAL SERVICE FOR LANDSCAPE REPAIR OF THE CAPEHART HOUSING AREA AT TYNDALL AIR FORCE BASE, FLORIDA, UNDER INVITATION FOR BIDS NO. 08-637-65-178 ISSUED MAY 5, 1965.

THE PROCUREMENT WAS SET ASIDE FOR THE EXCLUSIVE PARTICIPATION OF SMALL BUSINESS CONCERNS AND FOUR FIRMS SUBMITTED BIDS SETTING FORTH AGGREGATE PRICES FOR ALL OF THE VARIOUS ITEMS INVOLVED AS FOLLOWS:

TABLE

MCCLELLAND LANDSCAPE SERVICE $39,500.80

SKAGGS LANDSCAPE GARDENS, INC. 87,636.65

BOUNTSTOWN MEMORIAL SERVICE 95,200.60

MANN TREE SURGEON AND NURSERY 97,963.30

THE BIDS, HOWEVER, WERE NOT REQUESTED OR SUBMITTED ON A LUMP SUM BASIS, BUT AS UNIT PRICES ON EACH OF A NUMBER OF ITEMS LISTED IN THE BID FORM, WHICH CONTAINED AN EXPRESS STIPULATION THAT IN THE EVENT OF ANY ERROR IN EXTENSION THE UNIT PRICES STATED SHOULD CONTROL.

DUE TO A MISTAKE IN BID, THE LOW BIDDER, MCCLELLAND LANDSCAPE SERVICE, WAS ALLOWED TO WITHDRAW ITS BID IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 2-406.3 (A) (1) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH AUTHORIZE AN ADMINISTRATIVE DETERMINATION PERMITTING A BIDDER TO WITHDRAW HIS BID WHERE HIS REQUEST TO DO SO IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE OF A MISTAKE THEREIN.

IN EVALUATING YOUR BID, THE CONTRACTING OFFICER DISCOVERED MISTAKES IN THE EXTENDED AMOUNTS SHOWN FOR ITEMS 2C, 2M, 2W AND 5. USING THE CORRECT EXTENDED AMOUNTS FOR SUCH ITEMS ON THE BASIS OF THE UNIT PRICES QUOTED, THE CONTRACTING OFFICER DETERMINED THAT THE ACTUAL TOTAL AMOUNT OF YOUR BID WAS $95,763.65, RATHER THAN $87,636.65 SHOWN BY YOU AS THE TOTAL. BOUNTSTOWN MEMORIAL SERVICE'S BID OF $95,200.60 THUS APPEARED TO BE THE LOWEST ACCEPTABLE BID. THE CONTRACTING OFFICER, ON THE BASIS OF A PRE- AWARD SURVEY CONDUCTED BY THE ORLANDO CONTRACT MANAGEMENT DISTRICT, CONCLUDED THAT HE COULD NOT MAKE AN AFFIRMATIVE DETERMINATION THAT BLOUNTSTOWN WAS A RESPONSIBLE CONTRACTOR. HOWEVER, SINCE THAT FIRM WAS A SMALL BUSINESS CONCERN THE MATTER WAS REFERRED TO THE LOCAL SMALL BUSINESS ADMINISTRATION OFFICE, PURSUANT TO THE PROVISIONS OF ASPR 1-705.4, FOR CONSIDERATION OF THE ISSUANCE OF A CERTIFICATE OF COMPETENCY. A SBA CERTIFICATE OF COMPETENCY WAS ISSUED ON JUNE 29, 1965, AS REQUIRED BY SECTION 2 (8) OF THE SMALL BUSINESS ACT OF 1958, P.L. 85-836, AS AMENDED (15 U.S.C. 637 (B) (7) ( AND WAS ACCEPTED BY THE CONTRACTING OFFICER AS ESTABLISHING BLOUNTSTOWN'S ABILITY TO FULFILL THE REQUIREMENTS OF THE PROPOSED CONTRACT. AWARD WAS THEN MADE ON JUNE 30 TO BLOUNTSTOWN MEMORIAL SERVICE AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER UNDER THE INVITATION.

IN YOUR TELEGRAM OF JUNE 22 AND YOUR SUBSEQUENT COMMUNICATIONS YOU PROTEST THAT YOUR TOTAL BID PRICE WAS ACTUALLY INTENDED TO BE $87,636.65, AS SET FORTH IN YOUR BID AND AS EVIDENCED BY YOUR WORK SHEETS CONTAINING THE CORRECT UNIT PRICES. YOU ALSO EXPLAIN THE MANNER IN WHICH THE ERRONEOUS UNIT PRICES WERE INCORPORATED INTO THE BID AND HOW THE TOTAL AMOUNT OF $87,636.65 WAS COMPUTED. IN ADDITION, YOU CONTEND THAT BLOUNTSTOWN SHOULD BE DISQUALIFIED FOR THE REASON THAT IT IS NOT A LICENSED LANDSCAPE CONTRACTOR AND IT DOES NOT HAVE THE NECESSARY EQUIPMENT AND EXPERIENCE QUALIFICATIONS TO DEMONSTRATE AN ADEQUATE FINANCIAL AND TECHNICAL ABILITY TO PERFORM AS OUTLINED IN PARAGRAPH 6 OF THE IFB COVER PAGE CONTINUATION.

CONCERNING YOUR BELIEF THAT YOU SHOULD BE PERMITTED TO CORRECT THE ERRONEOUS UNIT PRICES LISTED IN YOUR BID AND THEREBY EFFECT A SAVINGS TO THE GOVERNMENT OF $7,563.95 BY REPLACING BLOUNTSTOWN AS LOW BIDDER, ASPR 2 -406.3 (A) (3) PROVIDES AS FOLLOWS:

"/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.'

SINCE YOUR REQUESTED CORRECTION OF THE SUBJECT UNIT PRICES TO THE UNIT PRICES ACTUALLY INTENDED TO BE QUOTED BY YOU ON THE SUBJECT ITEMS WOULD RESULT IN YOUR DISPLACING BLOUNTSTOWN AS LOW BIDDER, AND AS THE INTENDED PRICES ARE NOT ASCERTAINABLE, SUBSTANTIALLY FROM THE BID DOCUMENT ITSELF, (NOR DOES ANYTHING ON THE FACE OF YOUR BID EVEN SUGGEST A QUESTION AS TO THE CORRECTNESS OF THE UNIT PRICES QUOTED) THEREBY NECESSITATING REFERENCE TO YOUR WORK PAPERS AND OTHER SECONDARY MATERIAL IN ORDER TO DETERMINE THE INTENDED UNIT PRICES, THE CONTRACTING OFFICER WAS PRECLUDED BY THE EXPRESS PROVISIONS OF THE ABOVE-QUOTED PARAGRAPH FROM MAKING A DETERMINATION THAT WOULD PERMIT YOU TO MAKE SUCH CORRECTIONS IN YOUR BID. SEE 37 COMP. GEN. 210 AND 42 ID. 257, 260. ALTHOUGH MCCLELLAND LANDSCAPE SERVICE WAS PERMITTED TO WITHDRAW ITS BID PURSUANT TO ASPR 2-406.3 (A) (1) AND IN ACCORDANCE WITH THE WELL-ESTABLISHED RULE THAT ACCEPTANCE OF A BID WITH KNOWLEDGE OF ERROR THEREIN DOES NOT CONSUMMATE A BINDING CONTRACT (SEE 42 COMP. GEN. 723), IT IS OUR VIEW THAT A GREATER DEGREE OF PROOF IS NECESSARY TO ALLOW CORRECTION OF A BID THAN IS REQUIRED TO JUSTIFY WITHDRAWAL OF A BID, AND THAT THE ACTION TAKEN IN PERMITTING MCCLELLAND TO WITHDRAW ITS BID MAY IN NO WAY SERVE AS A BASIS FOR AUTHORIZING THE CORRECTIONS REQUESTED BY YOU.

WITH REGARD TO YOUR CONTENTION CONCERNING BLOUNTSTOWN'S QUALIFICATIONS AND ABILITY TO SATISFACTORILY PERFORM UNDER THE CONTRACT, A DETERMINATION BY THE SMALL BUSINESS ADMINISTRATION AS TO THE COMPETENCE OF A SMALL BUSINESS FIRM TO PERFORM A PARTICULAR CONTRACT IS, BY THE STATUTE CITED ABOVE, MADE CONCLUSIVE UPON THE PROCUREMENT OFFICERS OF THE GOVERNMENT, AND WE DO NOT CONSIDER SUCH DETERMINATIONS AS SUBJECT TO OUR REVIEW.

IN CONNECTION WITH YOUR ALLEGATION THAT BLOUNTSTOWN IS NOT A LICENSED LANDSCAPE CONTRACTOR, THERE WAS NO REQUIREMENT OR RESTRICTION IN THE INVITATION FOR BIDS MAKING SUCH A QUALIFICATION NECESSARY, AND STATE AND LOCAL REQUIREMENTS CONCERNING LICENSING OF PARTICULAR OCCUPATIONS DO NOT CONTROL THE ELIGIBILITY OF BIDDERS TO OBTAIN GOVERNMENT CONTRACTS. ANY ACTION ON THE PART OF A STATE PREVENTING BIDDING ON GOVERNMENT CONTRACTS OR PREVENTING A CONTRACTOR FROM CARRYING OUT GOVERNMENT WORK WOULD BE IN DEROGATION OF THE GOVERNMENT'S RIGHT TO SELECT CONTRACTORS OF ITS OWN CHOOSING AND, UNDOUBTEDLY, WOULD TEND TO DISCOURAGE BIDDING AND RESTRICT THE FREE AND OPEN COMPETITION TO WHICH THE GOVERNMENT IS ENTITLED AND WHICH, UNDER FEDERAL STATUTES, IS REQUIRED IN CONNECTION WITH THE AWARD OF CONTRACTS FOR SERVICES AND SUPPLIES. SEE 19 COMP. GEN. 735, 737; AND COURT CASES CITED THEREIN HOLDING THAT THE POLICE AND TAXING POWERS OF A STATE CANNOT RIGHTFULLY BE SO EXERCISED AS TO IMPEDE, OBSTRUCT, BURDEN, OR INTERFERE WITH THE EXECUTION OF FEDERAL POWERS.

WE ARE NOT UNSYMPATHETIC TO YOUR SITUATION IN THIS MATTER, AND RECOGNIZE THAT IT MAY OFTEN SEEM UNDULY HARSH NOT TO PERMIT CORRECTION AFTER BID OPENING OF THOSE UNFORTUNATE ERRORS MADE IN HASTE DURING THE FINAL MINUTES PRIOR TO SUBMITTING A BID. HOWEVER, ONE OF THE PURPOSES FOR THE REQUIREMENT OF STRICT ADHERENCE TO THE ABOVE REGULATIONS PERTAINING TO CORRECTION OF MISTAKES IS TO PREVENT ANY SUSPICION OF FAVORITISM AND TO MAINTAIN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WHICH HAS BEEN CONSISTENTLY RECOGNIZED AS BEING MORE BENEFICIAL TO THE GOVERNMENT THAN A PECUNIARY GAIN IN A GIVEN CASE. ALSO, IT HASBEEN CONSISTENTLY HELD (9 COMP. DEC. 663 (1903); 7 COMP. GEN. 167 (1927) ( THAT ACCOUNTING OFFICERS OF THE GOVERNMENT ARE WITHOUT AUTHORITY TO SETTLE QUESTIONS BEFORE THEM ON AN EQUITABLE--- AS DISTINGUISHED FROM A LEGAL--- BASIS. 42 COMP. GEN. 142. ACCORDINGLY, ACTION BY THIS OFFICE REQUIRING CANCELLATION OF THE CONTRACT AWARDED TO BLOUNTSTOWN COULD BE TAKEN ONLY UPON THE LEGAL PREMISE THAT THE ACCEPTANCE OF THAT FIRM'S BID DID NOT RESULT IN A VALID CONTRACT. AS INDICATED ABOVE, WE DO NOT PERCEIVE ANY IMPROPRIETY IN THE AWARD ACTIONS WHICH WOULD NEGATE THE APPARENT VALIDITY OF THE CONTRACT, AND CANCELLATION OF THE CONTRACT WOULD THEREFORE AMOUNT TO A BREACH BY THE GOVERNMENT, WHICH WOULD BE SUBJECT THE GOVERNMENT TO LIABILITY FOR DAMAGES. IN SUCH CIRCUMSTANCES WE WILL NOT ATTEMPT TO INTERFERE WITH AN AWARDED CONTRACT WHEN, AS IN THE CASE AT HAND, WE ARE NOT CONVINCED THAT A COURT OF LAW WOULD FIND THE AWARD SO INCOMPATIBLE WITH GOVERNING STATUTES AND REGULATIONS AS TO RENDER THE CONTRACT A NULLITY. SEE 41 COMP. GEN. 788 AND 44 COMP. GEN. 221, 223.