B-131629, JUN. 6, 1957

B-131629, JUN. 6, 1957

TO HOFMAN LABORATORIES, INC.:

BY TELEGRAM RECEIVED APRIL 24, 1957, YOU PROTESTED THE AWARD OF A CONTRACT PURSUANT TO INVITATION FOR BIDS NO. 600-1280-57 ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C., FOR LIQUID OXYGEN TRAILERS TO THE NATIONAL COOLER CORPORATION OF CLEVELAND, OHIO, OR TO ANY OTHER BIDDER WHOSE BID WAS NOT IN STRICT CONFORMANCE WITH THE TERMS OF THE INVITATION.

THE REPORT RECEIVED FROM THE DEPARTMENT OF THE NAVY INDICATES THAT UPON OPENING OF BIDS ON MARCH 11, 1957, IT WAS APPARENT THAT THE UNITED MANUFACTURING AND ENGINEERING CORPORATION BID OF $703 ON ITEM 1 AND $712 ON ITEM 2 WAS SIGNIFICANTLY LOW, THE NEXT HIGHER BID BEING IN EXCESS OF 2 1/2 TIMES THE LOW BID IN EACH CASE. THE REPORT FURTHER INDICATES THAT AFTER OPENING AND PRIOR TO AWARD THE LOW BIDDER ALLEGED BY TELEGRAM OF MARCH 12 AND LETTER OF MARCH 23 THAT AN ERROR HAD BEEN MADE IN ITS BID ON EACH ITEM AND THAT EACH PRICE SHOULD HAVE BEEN PREFIXED BY THE NUMERAL "1" TO READ $1,703 AND $1,712 RESPECTIVELY. THE LOW BIDDER SUBMITTED PHOTOSTATIC COPIES OF WORKSHEETS TO SUBSTANTIATE ITS ALLEGATION OF ERROR. THE REPORT CONTINUES THAT THE CONTRACTING OFFICER DETERMINED THAT, WHILE 30-GALLON OXYGEN TRAILERS HAD NOT BEEN PREVIOUSLY PROCURED, 50-GALLON CAPACITY TRAILERS WERE PROCURED IN MAY 1956 AT A UNIT PRICE OF $1,980.24, F.O.B. ORIGIN, AND THAT THE SPARE PARTS LISTED UNDER INVITATION NO. 600- 1280-57 WERE INTERCHANGEABLE WITH THOSE OF THE LARGER CAPACITY TRAILER. ON APRIL 22, 1957, THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, DEPARTMENT OF THE NAVY, MADE THE FOLLOWING DETERMINATION:

"IT IS HEREBY DETERMINED THAT THE ABOVE FACTS AND EVIDENCE CLEARLY ESTABLISH BOTH THAT UNITED MFG. AND ENGR.CORP. SUBMITTED AN ERRONEOUS BID AND THAT THE BID ACTUALLY INTENDED WAS $1.703 FOR ITEM 1 AND $1,712 FOR ITEM 2. ACCORDINGLY, SINCE THE ERROR WAS ALLEGED AND SATISFACTORILY EXPLAINED PRIOR TO AWARD, THE BID SHOULD BE CORRECTED AND CONSIDERED AS INTENDED.'

IN ACCORDANCE WITH THE DETERMINATION QUOTED ABOVE, AWARD WAS MADE TO UNITED ON APRIL 29, 1957, AT PRICES FOR ITEMS 1 AND 2 AS CORRECTED.

PARAGRAPH 2-405.2 OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES, IN PERTINENT PART THAT THE MILITARY DEPARTMENTS, IN CONNECTION WITH MISTAKES IN BIDS OF OTHER THAN AN OBVIOUS OR APPARENT CLERICAL NATURE, ARE AUTHORIZED TO PERMIT THE BIDDER TO CORRECT HIS BID UPON SUBMISSION OF CLEAR AND CONVINCING EVIDENCE ESTABLISHING BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. SUCH AUTHORITY MAY BE DELEGATED UNDER THE PARAGRAPH TO THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, AND WAS SO DELEGATED BY PARAGRAPH 2.405.1B OF THE NAVY PROCUREMENT DIRECTIVES. THE AUTHORITY TO MAKE SUCH CORRECTIONS IS ENTIRELY CONSISTENT WITH OUR DECISIONS, 29 COMP. GEN. 393 AND B-120281, JUNE 29, 1954.

IT APPEARS FROM THE FOREGOING, THAT THE AWARD WAS MADE TO UNITED ON THE BASIS OF ITS BID AS CORRECTED WHICH CORRECTION WAS AUTHORIZED BY COMPETENT AUTHORITY UPON THE SUBMISSION OF CLEAR AND CONVINCING EVIDENCE ESTABLISHING THE FACT OF THE ERROR AND THE INTENDED BID PRICE. IN THE ABSENCE OF ANY EVIDENCE TENDING TO ESTABLISH THAT THE DETERMINATION MADE BY THE ASSISTANT CHIEF FOR PURCHASING WAS ERRONEOUS OR WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, WE WOULD NOT BE JUSTIFIED IN TAKING ANY FURTHER ACTION IN THIS MATTER.

IN YOUR LETTER OF MAY 28, 1957, YOU ALSO ALLEGE THAT THE UNITED BID WAS DEFECTIVE FOR FAILURE TO SHOW UNIT PRICES FOR SPARE PARTS UNDER ITEM 3 OF THE INVITATION CONTRARY TO PARAGRAPH 1 (C) OF THE TERMS AND CONDITIONS WHICH REQUIRES THAT UNIT AND EXTENDED PRICES SHALL BE SHOWN FOR EACH ITEM. WE HAVE BEEN INFORMALLY ADVISED BY A REPRESENTATIVE OF THE DEPARTMENT OF THE NAVY THAT ALTHOUGH UNITED ORIGINALLY SUBMITTED A BID WHICH SHOWED ONLY A LUMP SUM FOR ITEM 3, THE UNIT-PRICE BREAKDOWN WAS SUPPLIED IMMEDIATELY AFTER OPENING. THE SPARE PARTS PURCHASED UNDER THE CONTRACT WERE IDENTICAL TO THOSE FOR WHICH PRICES WERE REQUESTED IN THE INVITATION. THE OMISSION, CONSEQUENTLY, CANNOT BE REGARDED AS GOING TO THE SUBSTANCE OF THE BID OR WORKING AN INJUSTICE ON THE OTHER BIDDERS AND COULD PROPERLY BE WAIVED AS AN IMMATERIAL VARIATION. SEE 30 COMP. GEN. 179 AND B-116448, AUGUST 13, 1953.