B-101323, SEPTEMBER 3, 1958, 38 COMP. GEN. 177

B-101323, SEPTEMBER 3, 1958, 38 COMP. GEN. 177

BIDS - MISTAKES ALLEGED PRIOR TO AWARD - ADMINISTRATIVE DETERMINATION THE FOLLOWING CATEGORIES OF CASES INVOLVING MISTAKES IN BIDS ALLEGED PRIOR TO THE AWARD OF GOVERNMENT CONTRACTS MAY BE ADMINISTRATIVELY HANDLED WITHOUT SUBMISSION TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION SUBJECT TO UNIFORM PROCEDURES AND CENTRALIZED DETERMINATION CONTROLS PRESCRIBED BY THE ADMINISTRATOR OF GENERAL SERVICES: BIDDER PRIOR TO AWARD ALLEGES MISTAKE IN BID AND; (1) REQUESTS BID BE DISREGARDED AND OFFERS CLEAR, CONVINCING EVIDENCE OF MISTAKE. (2) REQUESTS BID BE DISREGARDED OR CORRECTED BUT DOES NOT OFFER CLEAR, CONVINCING EVIDENCE OF MISTAKE. (3) REQUESTS CORRECTION OF BID AND OFFERS CLEAR, CONVINCING EVIDENCE BOTH OF MISTAKE AND OF ACTUALLY INTENDED BID PRICE. (4) REQUESTS CORRECTION OF BID AND OFFERS CLEAR, CONVINCING EVIDENCE OF MISTAKE BUT FAILS TO OFFER CLEAR, CONVINCING EVIDENCE OF ACTUALLY INTENDED BID PRICE.

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, SEPTEMBER 3, 1958:

IN YOUR LETTER OF AUGUST 15, 1958, IT IS STATED THAT THE INTERAGENCY TASK FORCE FOR REVIEW OF GOVERNMENT PROCUREMENT POLICIES AND PROCEDURES HAS FOUND THAT INCONSISTENCIES AND DELAYS IN THE PROCEDURES AMONG THE DIFFERENT GOVERNMENT AGENCIES FOR RESOLVING ALLEGATIONS OF MISTAKES IN BIDS IN CERTAIN SITUATIONS CONTRIBUTE TO CONFUSION AND THE COSTLINESS OF PROCUREMENT.

IN ORDER TO REMEDY THE SITUATION, THE TASK FORCE PROPOSES TO PREPARE UNIFORM PROCEDURES FOR HANDLING MISTAKE IN BID CASES WHICH THEY WILL RECOMMEND BY PRESCRIBED BY THE GENERAL SERVICES ADMINISTRATION IF WE WILL DELEGATE AUTHORITY SIMILAR TO THAT GIVEN IN DECISION B-101323, OF MARCH 21, 1951, AND B-120281, OF JUNE 29, 1954, TO THE GENERAL SERVICES ADMINISTRATION AND THE DEPARTMENT OF DEFENSE.

WE ARE IN AGREEMENT WITH THE PROPOSAL. THEREFORE, SO FAR AS OUR OFFICE IS CONCERNED, YOU, AS ADMINISTRATOR OF GENERAL SERVICES, MAY PRESCRIBE UNIFORM REGULATIONS FOR DETERMINING ADMINISTRATIVELY, WITHOUT THE SUBMISSION THEREOF TO THIS OFFICE FOR ADVANCE DECISION, THE ACTION TO BE TAKEN IN MISTAKE IN BID CASES WHERE ERROR IS ALLEGED PRIOR TO AWARD WHICH COME WITHIN THE FOUR CATEGORIES DESCRIBED IN YOUR LETTER AS FOLLOWS:

1. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE IN BID, REQUESTS THAT THE BID BE DISREGARDED, AND OFFERS CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE.

2. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE IN THE BID, REQUESTS THAT THE BID BE DISREGARDED OR CORRECTED, BUT DOES NOT OFFER CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE.

3. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE IN BID, REQUESTS CORRECTION OF THE BID, AND OFFERS CLEAR AND CONVINCING EVIDENCE BOTH OF THE MISTAKE AND OF THE ACTUALLY INTENDED BID PRICE.

4. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE, REQUESTS CORRECTION OF THE BID AND OFFERS CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE, BUT FAILS TO OFFER CLEAR AND CONVINCING EVIDENCE OF THE ACTUALLY INTENDED BID PRICE.

THE PROPOSED REGULATIONS SHOULD PROVIDE THAT THE AUTHORITY TO MAKE THE DETERMINATIONS MUST BE CENTRALIZED IN EACH AGENCY AND, AS YOU SUGGEST, SHOULD BE APPROVED BY ITS GENERAL COUNSEL, ASSOCIATE GENERAL COUNSEL, ASSISTANT GENERAL COUNSEL, OR COMPARABLE OFFICIAL. A STATEMENT OF THE FACTS IN EACH CASE SHOULD BE INCLUDED IN OR ATTACHED TO STANDARD FORM NO. 1036, STATEMENT AND CERTIFICATE OF AWARD. THE PROPOSED REGULATIONS SHOULD ALSO PROVIDE THAT ADMINISTRATIVE ACTION IS TO BE TAKEN ONLY IN THOSE CASES WHERE ACTION IS DEEMED TO BE CLEARLY JUSTIFIED; THAT THE PROCEDURE IS NOT TO DEPRIVE A BIDDER OF HIS RIGHT TO HAVE THE MATTER DETERMINED BY THIS OFFICE SHOULD HE SO REQUEST; AND THAT THIS OFFICE RESERVES THE RIGHT TO QUESTION THE CORRECTNESS OF THE DETERMINATION IN ITS AUDIT ACTIVITIES.