B-136251, JUL. 31, 1958

B-136251, JUL. 31, 1958

TO SHIPLEY, AKERMAN AND PICKETT:

BY YOUR LETTER OF JULY 8, 1958, YOU REQUEST RECONSIDERATION OF OUR DECISION, B-136251, JUNE 30, 1958, IN WHICH IT WAS HELD THAT THE BID SUBMITTED BY COSMOS INDUSTRIES, INC., PURSUANT TO INVITATION FOR BIDS NO. 30-635-58-389, ISSUED BY THE ROME AIR FORCE DEPOT ON APRIL 18, 1958, MAY NOT BE CONSIDERED FOR AWARD.

THE DELIVERY SCHEDULE OFFERED IN THE COSMOS BID CONCEDEDLY WAS NOT WITHIN THE TIME REQUIRED UNDER THE INVITATION. IT WAS ALLEGED, HOWEVER,IN YOUR LETTERS OF MAY 21 AND 23, THAT THE FAILURE OF THE BID TO COMPLY WAS DUE SOLELY TO A CLERICAL ERROR AND IT WAS REQUESTED THAT THE BID BE CORRECTED IN ACCORDANCE WITH THE BIDDER'S STATED INTENTION. IN SUPPORT OF THE ALLEGATION OF ERROR AFFIDAVITS FROM TWO COSMOS EMPLOYEES WERE PRESENTED. WE CONCLUDED IN OUR EARLIER DECISION THAT THE INCONSISTENCY BETWEEN THE TWO AFFIDAVITS PRECLUDED A CONCLUSION THAT THE INTENDED BID HAD BEEN CONCLUSIVELY ESTABLISHED AS REQUIRED TO PERMIT CORRECTIONS AFTER OPENING.

IN YOUR LETTER OF JULY 8, IT IS STATED THAT THE INITIAL PROTEST WAS "FILED HURRIEDLY BECAUSE OF THE JUNE 30 DEADLINE WHICH MAY HAVE NECESSITATED AWARD OF THE CONTRACT BEFORE THAT DATE.' IN SUPPORT OF THE REQUEST FOR RECONSIDERATION, THERE ARE NOW SUBMITTED ADDITIONAL AFFIDAVITS FROM OFFICIALS OF THE COSMOS FIRM AND WORKSHEETS WHICH WOULD APPEAR TO INDICATE THAT THE OFFICIALS WERE SATISFIED THAT THEY COULD COMPLETE THE CONTRACT SATISFACTORILY WITHIN THE TIME STIPULATED IN AN INVITATION AND THAT THEY HAD INTENDED SUBMITTING A BID CONSISTENT WITH THE DELIVERY TERMS THEREIN STATED.

THE RECORD INDICATES THAT THE INVITATION FOR BIDS IN QUESTION WAS ISSUED ON APRIL 18, 1958, AND WAS OPENED AS SCHEDULED ON MAY 19, 1958. ERROR WAS PROMPTLY ALLEGED BY COSMOS AFTER RECEIPT OF ADVICE FROM THE CONTRACTING OFFICER THAT ITS BID AS ORIGINALLY SUBMITTED WAS NONRESPONSIVE. THE MATTER WAS FIRST BROUGHT TO THE ATTENTION OF THIS OFFICE BY YOUR LETTER OF MAY 21, 1958, AND IN SUPPORT OF THE ALLEGATION OF ERROR, THERE WAS SUBMITTED, BY LETTER OF MAY 23, 1958, THE TWO AFFIDAVITS REFERRED TO ABOVE.

AS INDICATED, WE CONCLUDED IN OUR PRIOR DECISION THAT THE AFFIDAVITS SUBMITTED WITH THE LETTER OF MAY 23 WERE NOT OF THE CONCLUSIVE NATURE REQUIRED TO PERMIT CORRECTION OF BIDS AFTER OPENING. IN THE LETTER OF JULY 8, ADDITIONAL PROOF IS PRESENTED. IT IS NOT ALLEGED THAT THE PROOF INITIALLY PRESENTED WAS ADEQUATE; RATHER, IT APPEARS TO BE CONCEDED THAT THE INITIAL PRESENTATION WAS LESS THAN WOULD OTHERWISE HAVE BEEN FURNISHED BUT FOR THE APPARENT NECESSITY THAT AWARD BE MADE PRIOR TO JUNE 30. THE AFFIDAVITS AND WORKSHEETS SUBMITTED WITH THE LETTER OF JULY 8, IT APPEARS, ARE THOSE PROOFS WHICH WOULD HAVE BEEN SUBMITTED INITIALLY EXCEPT FOR THE MISUNDERSTANDING AS TO THE TIME WITHIN WHICH THE AWARD HAD TO BE MADE. THE NET RESULT OF THESE ACTIONS IS THAT PRESENTATION OF SUBSTANTIAL EVIDENCE IN SUPPORT OF THE REQUEST FOR A CORRECTION OF BID WAS NOT MADE UNTIL APPROXIMATELY ONE AND ONE HALF MONTHS AFTER THE ERROR WAS ORIGINALLY ALLEGED.

TO PERMIT THE CHANGING OF SIGNIFICANT PORTIONS OF BIDS AFTER OPENING WITHOUT THE EXERCISE OF A HIGH DEGREE OF CAUTION AND CONTROL WOULD OBVIOUSLY RENDER THE COMPETITIVE BID SYSTEM INOPERABLE. ON THE OTHER HAND, IN CERTAIN SITUATIONS, THERE IS NO QUESTION AS TO THE BID WHICH WAS ACTUALLY INTENDED. THEREFORE, THE CORRECTION OF BIDS AFTER OPENING IS PERMITTED UNDER CERTAIN CIRCUMSTANCES, BUT IS STRINGENTLY LIMITED TO THOSE SITUATIONS IN WHICH THE PRESCRIBED RULES OF PROCEDURE HAVE BEEN STRICTLY ADHERED TO. ONE OF THESE RULES IS THAT CORRECTION IS PERMITTED ONLY WHERE THE ALLEGATION OF ERROR IS FOLLOWED BY "AN IMMEDIATE SUBMISSION OF SUCH PROOF AND EXPLANATION" AS TO LEAVE NO ROOM FOR DOUBT THAT A MISTAKE WAS MADE AND HOW IT OCCURRED. 17 COMP. GEN. 599, 600. IN VIEW OF THE FOREGOING PRINCIPLE, WE DO NOT THINK THAT THE PROOF WAS SUBMITTED IN THIS INSTANCE WITHIN SUCH TIME AS TO PERMIT CORRECTION AND WE THEREFORE CONCLUDE THAT CORRECTION OF THE COSMOS BID IN THIS INSTANCE MAY NOT BE PERMITTED.