B-154579, SEP. 15, 1964

B-154579, SEP. 15, 1964

TO BASIC-WITZ FURNITURE INDUSTRIES, INC.:

BY LETTER DATED JUNE 26, 1964, YOU PROTESTED AGAINST ANY AWARD OF A CONTRACT TO THE C. B. ATKIN COMPANY UNDER INVITATION FOR BIDS NO. FPNFH T- 61195-A-5-5-64, ISSUED BY THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION (GSA), ON APRIL 3, 1964, FOR FOUR ITEMS OF HOUSEHOLD FURNITURE.

SPECIAL PROVISION NO. 1 OF THE INVITATION, ENTITLED "METHOD OF AWARD," PROVIDED THAT AWARD WOULD BE MADE IN THE AGGREGATE TO THE LOW RESPONSIVE BIDDER "FOB ORIGIN OR FOB ONE OF THE U.S. PORTS OF EXIT * * * WHICHEVER RESULTS IN THE LOWEST COST TO THE GOVERNMENT, DELIVERED TO ULTIMATE DESTINATION, HAWAII.' SPECIAL PROVISION 1 (B) PROVIDED:

"GUARANTEED WEIGHTS AND CUBIC MEASUREMENTS: THE COST OF GOVERNMENT TRANSPORTATION FROM POINT OF ORIGIN TO PORT AND COMBINED OCEAN AND PORT HANDLING COST FACTORS WILL BE USED IN EVALUATING BIDS. WEIGHTS AND CUBIC MEASUREMENTS ARE, THEREFORE, ESSENTIAL. THE METRIC SYSTEM SHALL NOT BE USED. BIDDERS SHALL STATE THE TOTAL ACTUAL OR ESTIMATED MAXIMUM GROSS WEIGHT AND CUBIC MEASUREMENT FOR THE UNIT SPECIFIED AND THE NUMBER OF PACKAGES IN A SHIPMENT OF A SINGLE UNIT. DIMENSIONS SHALL BE THOSE UPON WHICH CHARGES WOULD BE BASED BY COMMON CARRIERS. WHERE DIFFERENT FREIGHT RATES ARE APPLICABLE, CONTENTS OF EACH PACKAGE SHALL BE SPECIFIED. FAILURE TO STATE SUCH WEIGHTS AND CUBIC MEASUREMENTS SHALL CAUSE REJECTION OF A BID. THE GOVERNMENT SHALL DEDUCT FROM ANY PAYMENT DUE THE CONTRACTOR ANY EXCESS COST RESULTING FROM WEIGHT AND/OR CUBAGE OF EACH SHIPMENT WHICH EXCEEDS SUCH STATED ACTUAL OR ESTIMATED MAXIMUM GROSS WEIGHT AND CUBIC MEASUREMENT PER SINGLE UNIT, MULTIPLIED BY THE NUMBER OF UNITS SHIPPED.'

BIDS WERE OPENED ON MAY 5, 1964, WITH THE FOLLOWING RESULTS.

TABLE

BASIC-WITZ ATKIN

FOB ORIGIN $188,083.78 $185,355.50

FOB SEATTLE - 209,103.00

UPON EVALUATION OF THE BIDS, CONSIDERING THE COST TO THE GOVERNMENT OF TRANSPORTATION TO HAWAII, IT WAS DETERMINATED THAT THE ATKIN F.O.B. SEATTLE BID REPRESENTED THE LOWEST AGGREGATE BID EVALUATED TO DESTINATION. IT IS THEREFORE PROPOSED TO MAKE AWARD TO ATKIN AS THE LOWEST RESPONSIBLE BIDDER. THE EVALUATION OF BIDS TO DETERMINE THE LOWEST OVERALL COST TO THE GOVERNMENT, TRANSPORTATION COSTS TO DESTINATION CONSIDERED, WAS IN ACCORDANCE WITH SPECIAL PROVISION 1 OF THE INVITATION. SINCE WE FIND NO REASON TO DISAGREE WITH THE TRANSPORTATION COST FACTORS USED BY GSA TO DETERMINE THE LOWEST AGGREGATE BIDDER UNDER THE INVITATION, WE ARE UNABLE TO OBJECT IF AN AWARD IS MADE TO ATKIN AS THE LOWEST RESPONSIBLE BIDDER. SEE 39 COMP. GEN. 684, 693-694.

YOU CONTEND THAT ATKIN BECAME THE LOWEST AGGREGATE BIDDER BECAUSE IT WAS PERMITTED TO CORRECT, AFTER BID OPENING, THE CUBIC MEASUREMENT OF ITEM 4 OF THE INVITATION, WHICH MEASUREMENT WAS AN ESSENTIAL FACTOR IN EVALUATING THE TRANSPORTATION COSTS TO THE GOVERNMENT. IN EFFECT, YOU ARGUE THAT THE FAILURE OF A BIDDER TO FURNISH THE CORRECT CUBIC MEASUREMENT OF THE ITEM IT PROPOSES TO FURNISH PRECLUDES THE CORRECTION OF THE ERROR TO THE DETRIMENT OF AN OTHERWISE LOW EVALUATED BIDDER. FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.406-3 (A) (2), 41 U.S.C. APPENDIX, AUTHORIZES THE CORRECTION OF RESPONSIVE BIDS IF---

"A DETERMINATION MAY BE MADE PERMITTING THE BIDDER TO CORRECT HIS BID WHERE THE BIDDER REQUESTS PERMISSION TO DO SO AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. HOWEVER, IF SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER ACCEPTABLE 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 BID ITSELF. * * *"

THE ERROR MADE BY ATKIN WAS PROMPTLY ALLEGED ON THE DAY OF BID OPENING AND THE BIDDER ADVISED THAT IT MADE AN ARITHMETICAL ERROR IN COMPUTING THE CUBIC MEASUREMENT OF ITEM 4 DESCRIBED AS A DINING ROOM TABLE. BASED ON THE CONTAINER DIMENSIONS STATED IN THE BID AS 62 TIMES 44 TIMES 31, THE CUBE PER CONTAINER SHOULD BE 48.94 CUBIC FEET RATHER THAN THE 63.9 CUBIC FEET ERRONEOUSLY STATED IN THE BID. BY LETTER DATED MAY 26, 1964, TO THE PROCUREMENT OFFICE, ATKIN ADVISED THE CONTAINER DIMENSIONS OF 62 TIMES 44 TIMES 31 WHEN MULTIPLIED AND THEN DIVIDED BY 1,728--- THE NUMBER OF CUBIC INCHES IN ONE CUBIC FOOT--- EQUALS 48.94 CUBIC FEET. THUS, BY APPLICATION OF A RECOGNIZED MATHEMATICAL FORMULA, IT WAS READILY APPARENT THAT A BONA FIDE MISTAKE HAD BEEN MADE. ATKIN OFFERED CLEAR AND CONVINCING EVIDENCE OF ITS MISTAKE IN COMPUTATION, AND THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE READILY ASCERTAINABLE FROM THE BID ITSELF. UNDER SUCH CIRCUMSTANCES, THE CORRECTION OF THE MISTAKE CONSTITUTED A PROPER ADMINISTRATIVE ACTION WHICH WE WILL NOT QUESTION. MOREOVER, IT IS CLEAR THAT SUCH CORRECTION DID NOT DISPLACE YOU AS THE LOWEST BIDDER SINCE ATKIN'S BID ON AN F.O.B. ORIGIN BASIS WAS LOWER THAN YOUR BID ON THAT SAME BASIS. NEITHER DO WE FEEL THAT ATKIN SUBMITTED A NONRESPONSIVE BID. UNDER THIS INVITATION, ATKIN WOULD HAVE BEEN NONRESPONSIVE IF IT HAD FAILED TO FURNISH THE "ACTUAL OR ESTIMATED * * * CUBIC MEASUREMENT.' BUT IT DID FURNISH THE REQUIRED INFORMATION AND ONLY THROUGH MATHEMATICAL ERROR, ASCERTAINABLE FROM THE BID ITSELF, DID ATKIN FAIL TO FURNISH THE CORRECT CUBIC MEASUREMENT. THUS, THE ATKIN BID WAS RESPONSIVE TO THE TRANSPORTATION DATA REQUIREMENTS OF THE INVITATION. THE CASES CITED BY YOU, B-144298, OCTOBER 28, 1960, AND B-153626, APRIL 30, 1964, ARE NOT APPLICABLE HERE SINCE THERE IS NOT INVOLVED HERE LOW BID DISPLACEMENT OR NON-RESPONSIVENESS OF A BID.

ACCORDINGLY, AND SINCE CORRECTION OF THE ATKIN BID DID NOT DISPLACE A LOW BIDDER AND WAS OTHERWISE PROPER FOR CORRECTION UNDER FPR 1-2.406 3 (A) AS A RESPONSIVE BID, WE WOULD NOT OBJECT IF THE LOW AGGREGATE BID OF ATKIN WERE CONSIDERED FOR AWARD, IF OTHERWISE PROPER. YOUR PROTEST IS THEREFORE REJECTED.