B-124269, JUN. 17, 1955

B-124269, JUN. 17, 1955

TO THE SECRETARY OF LABOR:

REFERENCE IS MADE TO LETTER DATED JUNE 9, 1955, WITH ENCLOSURES, FROM JAMES E. DODSON, ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO THE PROPRIETY OF MAKING AN AWARD OF A CONTRACT TO MRS. JULIA MCPHAIL ON THE BASIS OF HER BID SUBMITTED IN RESPONSE TO INVITATION NO. L-3542 (56) REQUESTING BIDS FOR FURNISHING MEALS FOR MEXICAN LABORERS.

THE RECORD SHOWS THAT BIDS WERE REQUESTED FOR PROVIDING MEALS AS MIGHT BE REQUIRED FOR MEXICAN WORKERS BY THE DEPARTMENT OF LABOR, FARM PLACEMENT SERVICE, AT ONE OR MORE OF THE RECEPTION CENTERS LISTED IN THE INVITATION DURING THE PERIOD FROM JULY 1, 1955, TO JUNE 30, 1956. PROSPECTIVE BIDDERS WERE REQUESTED TO QUOTE PRICES IN THE SPACES PROVIDED FOR BREAKFAST, DINNER AND SUPPER AT EACH RECEPTION CENTER AS WELL AS A PRICE FOR EACH BOX LUNCH WITH DRINK AT EACH CENTER AND A PRICE FOR EACH BOX LUNCH WITHOUT DRINK AT EACH CENTER. WITH RESPECT TO PRICES FOR BOX LUNCHES TO BE SOLD TO EMPLOYERS, BIDDERS WERE ADVISED ON PAGE 10 OF THE INVITATION AS FOLLOWS:

"* * * BOX LUNCHES PREPARED BY THE CONTRACTOR AT THE CENTER FOR THE ACCOUNT OF THE CONTRACTOR AND OF THE SAME QUANTITY AND QUALITY AS ARE PROVIDED FOR IN THIS CONTRACT MAY BE SOLD TO THE EMPLOYER AT A RATE NOT TO EXCEED 15 PERCENT HIGHER THAN THE CONTRACT PRICE SHOWN HEREIN, ROUNDED TO THE NEXT HIGHER CENT. * * *"

MRS. JULIA MCPHAIL OF BERNALILLO, NEW MEXICO, WHO SUBMITTED THE LOWEST BID, QUOTED PRICES OF 22 CENTS EACH FOR BREAKFAST, DINNER AND SUPPER AT EACH CENTER BUT LEFT BLANK THE SPACES PROVIDED FOR QUOTATIONS OF PRICES FOR BOX LUNCHES WITH DRINK AND INSERTED THE WORDS "FIFTEEN PERCENT PLUS" IN THE SPACE OPPOSITE BOX LUNCH WITHOUT DRINK. THE SECOND-LOW BID BY A WIDE MARGIN WAS SUBMITTED BY THE OMAHA BOARDING COMPANY.

IT IS STATED IN THE LETTER OF JUNE 9, 1955, THAT MRS. MCPHAIL WAS REQUESTED TO EXPLAIN HER INTENT BY THE ENTRY "FIFTEEN PERCENT PLUS" AND THAT SHE IMMEDIATELY REPLIED THAT SHE WAS UNCERTAIN AS TO THE MANNER IN WHICH TO EXPRESS HERSELF IN THE VIEW OF THE LANGUAGE ON PAGE 10 OF THE SPECIFICATIONS. SHE EXPLAINED FURTHER THAT THE "FIFTEEN PERCENT PLUS" WAS TO HAVE BEEN APPLIED TO 30 CENTS AND 26 CENTS RESPECTIVELY FOR THE TWO TYPES OF BOX LUNCHES. IT IS STATED ALSO IN THE LETTER THAT THERE WAS NO WAY BY WHICH MRS. MCPHAIL COULD HAVE BEEN AWARE OF THE PRICES QUOTED BY THE OTHER BIDDERS SINCE ONLY ONE BIDDER WAS REPRESENTED AT THE OPENING OF THE BIDS, AND A DECISION IS REQUESTED AS TO WHETHER THE MISTAKE OR OMISSION IS OF SUCH NATURE THAT THE BIDDER MAY HAVE HER BID CORRECTED AND CONSIDERED ALONG WITH THE OTHERS.

ONE OF THE PURPOSES OF THE STATUTORY REQUIREMENT OF ADVERTISING FOR BIDS IN MATTERS OF THIS TYPE IS TO SECURE TO ALL QUALIFIED BUSINESS CONCERNS AN EQUAL OPPORTUNITY FOR OBTAINING CONTRACTS WITH THE GOVERNMENT, THEREBY ELIMINATING ANY POSSIBILITY OF CHARGES OF FAVORITISM AND COLLUSION IN THE AWARD OF GOVERNMENT CONTRACTS. TO THAT END, IT HAS CONSISTENTLY BEEN HELD BY OUR OFFICE AND THE COURTS THAT-- EXCEPT IN CERTAIN CASES INVOLVING OBVIOUS ERROR WHERE THE INTENDED BID IS CONCLUSIVELY ESTABLISHED--- BIDDERS SHOULD NOT BE PERMITTED TO VARY THEIR PROPOSALS AFTER THE BIDS ARE OPENED, IT BEING CONSIDERED THAT THE PRESERVATION OF THE COMPETITIVE-BID SYSTEM IS INFINITELY MORE IN THE PUBLIC INTEREST THAN OBTAINING AN APPARENTLY PECUNIARY ADVANTAGE IN A PARTICULAR CASE. AS WAS SAID BY THE COURT IN CITY OF CHICAGO V. MOHR, 216 ILL. 320, 74 N.E. 1056 "WHEN A BID IS PERMITTED TO BE CHANGED (AFTER THE OPENING), IT IS NO LONGER THE SEALED BID SUBMITTED IN THE FIRST INSTANCE, AND, TO SAY THE LEAST, IS FAVORITISM, IF NOT FRAUD--- A DIRECT VIOLATION OF THE LAW--- AND CANNOT BE TOO STRONGLY CONDEMNED.'

IN THE PRESENT MATTER IT IS NOT EVEN ESTABLISHED THAT MRS. MCPHAIL MADE A MISTAKE. FURTHER, IT APPEARS THAT HER BID WAS SUBMITTED IN THE FORM INTENDED AFTER CONSIDERATION OF THE PERTINENT PROVISIONS OF THE INVITATION. THE FACT REMAINS, HOWEVER, THAT MRS. MCPHAIL NOT ONLY FAILED TO QUOTE PRICES FOR BOX LUNCHES WITH DRINK TO BE FURNISHED THE GOVERNMENT AT THE CENTERS BUT DID NOT STATE HOW THE PRICE OF "FIFTEEN PERCENT PLUS" WHICH SHE INSERTED IN THE BID FORM FOR BOX LUNCHES WITHOUT DRINK WOULD BE COMPUTED. WHILE SHE HAS INDICATED THAT HER QUOTATION FOR THE LATTER ITEM WAS INTENDED TO BE APPLIED TO 26 CENTS AND 30 CENTS FOR THE BOX LUNCHES, THIS INTENTION IS NOT APPARENT FROM THE BID ITSELF AND THE BIDDER HAS NOT OTHERWISE ESTABLISHED HER INTENDED BID ON EITHER OF THE TWO ITEMS IN QUESTION. THE BID IS NEITHER COMPLETE IN ITS PRESENT FORM, NOR RESPONSIVE, DEFINITE AND CERTAIN, AND TO PERMIT THE BIDDER TO COMPLETE AND EXPLAIN HER BID AFTER THE OPENING DATE WOULD GIVE HER THE UNFAIR ADVANTAGE OF PERMITTING HER TO MAKE AN ELECTION AS TO WHETHER SHE WISHED TO HAVE IT CONSIDERED, OR REJECTED AS BEING DEFECTIVE.

THE BID SHOULD, THEREFORE, BE DISREGARDED.

THE ENCLOSURES TRANSMITTED WITH THE SUBMISSION ARE RETURNED HEREWITH.