B-154726, NOV. 20, 1964

B-154726, NOV. 20, 1964

TO WARREN PAINTING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1964, PROTESTING AGAINST THE AWARD OF CONTRACTS FOR PAINTING THE EXTERIORS OF 115 BUILDINGS AT FORT WAINWRIGHT, ALASKA, UNDER INVITATION FOR BIDS (IFB) NO. ASK 95-517 -64-82.

THE INVITATION WAS ISSUED MAY 20, 1964, AND WAS SCHEDULED FOR OPENING ON JUNE 19, 1964. A TELEGRAPHIC AMENDMENT TO THE INVITATION WAS DISPATCHED ON JUNE 19, 1964, IN WHICH THE METHOD OF APPLYING "SUBSEQUENT" COSTS OF PAINT WAS CHANGED FROM "MAY BE APPLIED BY BRUSH OR SPRAY" TO ,SHALL BE APPLIED BY SPRAY METHOD," AND THE OPENING DATE WAS EXTENDED TO 11:00 A.M. JUNE 23, 1964.

IN REGARD TO WHETHER THE OPENING DATE WAS EXTENDED A SUFFICIENT LENGTH OF TIME IN VIEW OF THE AMENDMENT, THE CONTRACTING OFFICER HAS STATED THAT DUE TO EXCESSIVELY HEAVY WORKLOAD AT THE FISCAL YEAR END OF CONTRACTS, THE SHORT EXTENDED TIME WAS CONSIDERED JUSTIFIED. ALTHOUGH IT IS CONCEDED THAT NORMALLY A LONGER EXTENSION WOULD BE MORE IN KEEPING WITH GOOD PROCUREMENT PRACTICES, FOUR COMPETITIVE BIDS WERE RECEIVED AND THERE IS NO INDICATION THAT ANY OTHER PROSPECTIVE BIDDERS WERE PRECLUDED FROM BIDDING. IN THESE CIRCUMSTANCES WE DO NOT THINK THERE IS SUFFICIENT JUSTIFICATION FOR OUR OFFICE TO QUESTION THE VALIDITY OF THE CONTRACTS AWARDED.

THE BID SCHEDULE WAS COMPRISED OF SCHEDULES A THROUGH D, AND EACH SCHEDULE CONSISTED OF A NUMBER OF BUILDINGS EACH OF WHICH WAS IDENTIFIED BY AN ITEM NUMBER AND DESCRIPTION, WITH A SPACE OPPOSITE EACH ITEM FOR INSERTION OF A BID AMOUNT. AT THE END OF THE LIST OF ITEMS IN EACH SCHEDULE A BLANK WAS PROVIDED FOR THE TOTAL BID AMOUNT ON THAT SCHEDULE, AND AT THE END OF ALL SCHEDULES SPACE WAS PROVIDED TO RECAPITULATE THE TOTAL AMOUNT BID ON EACH SCHEDULE AS WELL AS FOR THE TOTAL SUM OF SUCH AMOUNTS. THE FOLLOWING PROVISIONS APPEAR ON PAGES 6 AND 8, RESPECTIVELY, OF THE BID SCHEDULE:

"A BIDDER MAY BID ON ANY SINGLE BID ITEM OR ANY COMBINATION OF BID ITEMS. THE GOVERNMENT RESERVES THE RIGHT TO AWARD A CONTRACT TO THAT BIDDER OFFERING THE LOWEST AGGREGATE BID PRICE FOR A SINGLE BID ITEM OR COMBINATION OF BID ITEMS, OR ON THE TOTAL OF ALL ITEMS AWARDED.

"EVALUATION OF BIDS: IN ADDITION TO OTHER FACTORS, BIDS WILL BE EVALUATED ON THE BASIS OF ADVANTAGES OR DISADVANTAGES TO THE GOVERNMENT THAT MIGHT RESULT FROM MAKING MORE THAN ONE AWARD (MULTIPLE AWARDS). FOR THE PURPOSE OF MAKING THIS EVALUATION, IT WILL BE ASSUMED THAT THE SUM OF $50 WOULD BE THE ADMINISTRATIVE COST TO THE GOVERNMENT FOR ISSUING AND ADMINISTERING EACH CONTRACT AWARDED UNDER THIS INVITATION, AND INDIVIDUAL AWARDS WILL BE FOR THE ITEMS AND COMBINATION OF ITEMS WHICH RESULT IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT, INCLUDING SUCH ADMINISTRATIVE COSTS. (MAR. 1964)"

ALTHOUGH YOU STATE THAT YOU DID NOT RECEIVE THE TELEGRAPHIC AMENDMENT UNTIL JUNE 20, YOU ADVISE THAT YOU DID NOT SUBMIT YOUR BID ON JUNE 19 BECAUSE YOUR FAIRBANKS REPRESENTATIVE HAD INFORMED YOU BY TELEPHONE ON THE AFTERNOON OF JUNE 18 OF THE AMENDMENT AND EXTENSION OF THE OPENING DATE. BECAUSE YOUR ORIGINAL ESTIMATE HAD BEEN BASED ON BRUSH APPLICATION, THE AMENDMENT NECESSITATED RECOMPUTATION OF YOUR BID WHICH, ALTHOUGH NOT COMPLETED, WAS MAILED AIR EXPRESS ON THE 22ND TO YOUR FAIRBANKS REPRESENTATIVE IN ORDER TO ASSURE IT WOULD BE DELIVERED AT FORT WAINWRIGHT BY 11:00 A.M. ON THE 23RD. THE BID WAS HAND DELIVERED BY SAID REPRESENTATIVE AT 10:30 A.M., JUNE 23. YOUR BID AS SUBMITTED QUOTED A TOTAL AMOUNT FOR EACH SCHEDULE, WITHOUT QUOTATIONS ON THE INDIVIDUAL ITEMS THEREOF, AND A SUM TOTAL OF ALL SCHEDULES AS FOLLOWS:

TABLE

SCHEDULE A $60,000

SCHEDULE B 75,000

SCHEDULE C 30,000

SCHEDULE D 30,000 TOTAL

$195,000

APPARENTLY HAVING COMPLETED THE RECOMPUTATION OF YOUR BID PRICE AFTER THE FORMAL BID HAD BEEN MAILED, YOU SENT THE FOLLOWING TELEGRAM:

"REVISE OUR BID ON ASK 64-82 OPENING 11 AM JUNE 23 1964 TO READ AS FOLLOWS SCHEDULE A $41,000 SCHEDULE B $52,000 SCHEDULE C $23,000 SCHEDULE D $6,000 TOTAL $122,000 WARREN PAINTING CO"

THIS TELEGRAM WAS RELAYED TO THE CONTRACTING OFFICER BY TELEPHONE AT 9:52 A.M. JUNE 23. BIDS WERE OPENED AT 11:00 A.M. AND THE FIGURES IN YOUR FORMAL BID AS WELL AS THOSE IN THE TELEGRAM WERE RECORDED. YOU WERE CALLED, APPARENTLY ON THE 23RD, AND ASKED TO VERIFY THE TELEGRAPHED BID PRICE FOR SCHEDULE D, AS IT WAS CONSIDERED EXCESSIVELY LOW. YOUR LETTER OF THE SAME DATE CONFIRMED YOUR BID ON SCHEDULES A AND B AT $41,000 AND $52,000, RESPECTIVELY, BUT ASKED THAT C AND BE CORRECTED TO READ $18,845 AND $10,155, RESPECTIVELY, IT BEING EXPLAINED THAT AN ERROR HAD BEEN MADE BY INADVERTENTLY INCLUDING YOUR ESTIMATE ON FIVE BUILDINGS IN SCHEDULE C WHEN THEY SHOULD HAVE BEEN INCLUDED IN THE SCHEDULE D QUOTATION.

THE CONTRACTING OFFICER MADE AN EVALUATION OF BIDS AND DETERMINATION OF AWARD JUNE 25, 1964, IN WHICH HE CONCLUDED THAT BECAUSE OF THE "LANGUAGE" USED IN YOUR TELEGRAM OF THE 23RD OF JUNE IT WAS IN EFFECT A BID WHICH WAS NOT PERMITTED BY THE INVITATION, STANDARD FORM 22, JANUARY 1961 EDITION, INSTRUCTIONS TO BIDDERS, PARAGRAPH 5/A). HE THEREFORE CONSIDERED YOUR BID AS ORIGINALLY SUBMITTED, AND SINCE HE DETERMINED THE LOW BIDS ON EACH SCHEDULE BY TAKING THE LOWEST INDIVIDUAL ITEM BIDS THIS RESULTED IN YOU BEING HIGH BIDDER ON EACH SCHEDULE. HE FURTHER DETERMINED THAT YOUR ORIGINAL BID WAS NONRESPONSIVE FOR FAILING TO INCLUDE AN INDIVIDUAL BID ON EACH ITEM, WHICH HE CONSIDERED TO BE REQUIRED BY PARAGRAPH 5/B) OF THE INSTRUCTIONS TO BIDDERS. ALSO, HE APPARENTLY CONSIDERED THAT EVEN IF YOUR TELEGRAM WAS VIEWED AS A MODIFICATION OF YOUR ORIGINAL BID, IT WOULD BE NONRESPONSIVE AS IT REVEALED "THE AMOUNT OF THE ORIGINAL OR REVISED BID" CONTRARY TO PARAGRAPH 5/D) OF THE INSTRUCTIONS TO BIDDERS. THEREFORE, AWARD WAS MADE ON THE LOWEST COMBINATIONS OF INDIVIDUAL ITEMS, RESULTING IN THE FOLLOWING AGGREGATE CONTRACT PRICES FOR THE WORK COVERED BY THE SEVERAL SCHEDULES:

TABLE

SCHEDULE A $31,438.62

SCHEDULE B 47,102.14

SCHEDULE C 15,380.08

SCHEDULE D 12,065.24 TOTAL

$105,986.08

YOU CONTEND IN YOUR LETTER OF JULY 11, 1964, TO OUR OFFICE THAT YOUR TELEGRAM WAS A MODIFICATION OF YOUR BID AND NOT A BID IN ITSELF; THAT IT SHOULD NOT BE CONSIDERED NONRESPONSIVE SIMPLY BECAUSE IT REVEALED YOUR REVISED BID; THAT YOUR BID AND THE MODIFICATION THEREOF SHOULD NOT BE CONSIDERED NONRESPONSIVE FOR FAILING TO INCLUDE BID PRICES ON EACH ITEM, AS IT WAS THE INTENTION OF THE GOVERNMENT TO AWARD BY SCHEDULES OR COMBINATIONS OF SCHEDULES; AND THAT AN INSUFFICIENT EXTENSION IN THE OPENING DATE WAS PROVIDED IN THE AMENDMENT.

ASSUMING THAT YOUR TELEGRAM WAS PROPERLY FOR CONSIDERATION AS A MODIFICATION OF YOUR ORIGINAL BID, AND THAT IT WAS NOT SUBJECT TO REJECTION FOR FAILING TO BID ON THE INDIVIDUAL ITEMS COMPRISING EACH SCHEDULE, WE DO NOT AGREE WITH YOUR CONTENTION THAT IT WAS THE INTENT OF THE GOVERNMENT TO MAKE AWARD BY SCHEDULES WITHOUT REGARD TO THE LOWEST PRICES OFFERED ON INDIVIDUAL ITEMS. WE THINK IT IS CLEAR FROM THE PROVISIONS APPEARING ON PAGES 6 AND 8 OF THE INVITATION, AS HERETOFORE QUOTED, AND FROM THE FIRST SENTENCE OF PARAGRAPH 5/B) OF THE INSTRUCTIONS TO BIDDERS, WHICH PROVIDES FOR "SUBMISSION OF A PRICE OR PRICES FOR ONE OR MORE ITEMS, WHICH MAY BE LUMP-SUM BIDS, ALTERNATE PRICES, SCHEDULED ITEMS RESULTING IN A BID ON A UNIT OF CONSTRUCTION OR A COMBINATION THEREOF, ETC., " THAT AWARDS BASED ON ANY COMBINATIONS OF ITEMS AND/OR SCHEDULES RESULTING IN THE LOWEST AGGREGATE PRICE TO THE GOVERNMENT WAS INTENDED AND REQUIRED. THIS WAS IN FACT THE BASIS OF THE AWARDS MADE, AND NO BIDDER RECEIVED AWARD OF ALL ITEMS OF ANY SCHEDULE.

IT IS THUS CLEAR FROM THE AWARDS MADE THAT YOUR BID, BECAUSE OF ITS FAILURE TO INCLUDE ITEM PRICES, WOULD HAVE TO BE EVALUATED ON THE BASIS OF TOTAL BID PRICE FOR EACH SCHEDULE AGAINST THE LOWEST COMBINATION OF THE BID PRICES SUBMITTED BY OTHER BIDDERS ON THE INDIVIDUAL ITEMS CONTAINED IN SUCH SCHEDULE. EVALUATED ON THIS BASIS YOUR BID WOULD NOT HAVE BEEN LOW ON ANY SCHEDULE EXCEPT SCHEDULE D. ON THAT SCHEDULE, HOWEVER, YOUR BID PRICE AS STATED IN YOUR TELEGRAM WAS SO FAR OUT OF LINE WITH OTHER BIDS AS TO INDICATE THAT IT WAS ERRONEOUS AND THEREFORE NOT FOR ACCEPTANCE WITHOUT VERIFICATION. UPON RECEIPT OF THE CONTRACTING OFFICER'S REQUEST FOR VERIFICATION YOU REPUDIATED THE $6,000 FIGURE AND ALLEGED ERROR. WHILE YOU UNDERTOOK TO EXPLAIN THE ERROR ALLEGED AND TO CORRECT THE AMOUNT OF THE BID, CORRECTION OF A BID AFTER OPENING CANNOT BE PERMITTED MERELY AT THE REQUEST OF A BIDDER, BUT ONLY UPON TIMELY PRODUCTION OF CONVINCING PROOF, NOT ONLY OF THE FACT THAT THERE WAS AN ERROR, BUT ALSO OF THE EXACT NATURE THEREOF AND THE EXACT AMOUNT INTENDED TO BE BID. SEE PARAGRAPH 2- 406.3 OF THE ARMED SERVICES PROCUREMENT REGULATION.

IT MAY BE THAT THE CONTRACTING OFFICER SHOULD HAVE AFFORDED YOU AN OPPORTUNITY TO SUBMIT ADDITIONAL EVIDENCE TO SUPPORT YOUR REQUESTED CORRECTION, THERE IS NO CERTAINTY THAT THE CORRECTION WOULD HAVE BEEN ALLOWABLE IF HE HAD DONE SO, AND WE BELIEVE THAT IT IS NOW TOO LATE TO GIVE FURTHER CONSIDERATION TO THE QUESTION. WE DO NOT FEEL THAT THE FAILURE OF THE CONTRACTING OFFICER TO REQUEST THAT YOU FURNISH PROOF OF YOUR ALLEGED ERROR--- WHICH, UNDER THE REGULATION CITED, SHOULD HAVE BEEN SUBMITTED WITH YOUR REQUEST FOR CORRECTION--- WOULD JUSTIFY THE CONCLUSION THAT THE AWARDS MADE FOR THE ITEMS OF SCHEDULE D WERE VOID OR THAT IT WOULD NOW BE IN THE INTEREST OF THE GOVERNMENT TO REQUIRE TERMINATION OF THE CONTRACTS.