B-158695, MAR. 28, 1966

B-158695, MAR. 28, 1966

TO DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO A LETTER DATED MARCH 7, 1966, FILE REFERENCE DSAH-G, FROM YOUR ASSISTANT COUNSEL, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING THE PROTEST OF THE UDELSON EQUIPMENT COMPANY, CLEVELAND, OHIO, AGAINST THE DECISION OF THE DEFENSE SUPPLY AGENCY TO ALLOW THE UNITED ROAD MACHINERY COMPANY, MEMPHIS, TENNESSEE, TO CORRECT ITS BID SUBMITTED IN RESPONSE TO SALES INVITATION FOR BIDS NO. 41-6061, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, DEFENSE DEPOT OGDEN, OGDEN, UTAH.

THE INVITATION REQUESTED BIDS TO BE OPENED ON JANUARY 20, 1966, ON 78ITEMS OF SURPLUS PROPERTY OFFERED FOR SALE BY THE GOVERNMENT. RESPONSE THE UNITED ROAD MACHINERY COMPANY SUBMITTED A BID IN WHICH PRICES WERE SHOWN OPPOSITE ITEMS 1, 2, 5 AND 6. ITEM 2 CONSISTED OF ONE SHOVEL CRANE FOR WHICH THE COMPANY INSERTED A TYPED UNIT BID PRICE OF $6,487 AND A CORRECTED TOTAL BID PRICE OF $5,487. OPPOSITE THE LATTER FIGURE THERE APPEARED IN INK THE FIGURE $5,487 AND THE INITIALS ,S.I.J.' THE FIGURE AND THE INITIALS WERE CIRCLED IN INK WITH AN ARROW POINTING TO THE "TOTAL PRICE BID" COLUMN.

IT IS REPORTED THAT UPON BEING REQUESTED BY TELEPHONE TO VERIFY ITS BID, A REPRESENTATIVE OF UNITED WHO SIGNED THE BID REPLIED THAT THE HIGHER FIGURE, $6,487, AS INDICATED BY THE UNIT BID PRICE WAS THE INTENDED BID; THAT A NOTICE OF AWARD OF CONTRACT NO. 41-6061-104 COVERING ITEM 2, AMONG OTHERS, WAS MAILED TO THE UNITED ROAD MACHINERY COMPANY; AND THAT 2 DAYS LATER A "CORRECTED" NOTICE OF AWARD WAS MAILED TO UNITED WITH ITEM 2 DELETED, TOGETHER WITH A COVERING LETTER ADVISING THAT THE BID WOULD BE FORWARDED TO HIGHER AUTHORITY FOR DETERMINATION. THE LETTER ALSO CONTAINED A REQUEST FOR VERIFICATION OF THE BID AND FOR SUBMISSION OF EVIDENCE IN SUPPORT OF ITS INTENDED BID PRICE.

IN SUPPORT OF ITS ALLEGATION OF ERROR, UNITED SUBMITTED ITS WORKSHEET AND A LETTER AND AN AFFIDAVIT DATED JANUARY 28, 1966, IN WHICH IT EXPLAINED THAT AN OVERTYPE IN THE FIRST FIGURE OF THE TOTAL PRICE BID HAD CAUSED THE PRESIDENT OF THE FIRM TO CORRECT THIS FIGURE ERRONEOUSLY WITH INK. THE COMPANY POINTED OUT THAT ITS AGGREGATE TOTAL PRICE FOR ALL ITEMS BID UPON AND THE AMOUNT OF THE BID DEPOSIT SUBMITTED BY IT SUBSTANTIATES THAT ITS INTENDED BID PRICE FOR ITEM 2 WAS $6,487.

PROTEST IS MADE AGAINST THE CORRECTION OF AN ERROR WHICH ALLEGEDLY RESULTED IN A BID NOT THE HIGHEST BID SUBMITTED ON ITEM 2 BECOMING THE HIGHEST. WE HAVE HELD THAT WHERE THE CORRECTION PREJUDICES ANOTHER BIDDER IN THE MANNER ALLEGED, THE CORRECTION MAY BE ALLOWED ONLY IN THOSE INSTANCES WHERE NOT ONLY THE ERROR BUT THE AMOUNT OF THE INTENDED BID IS ASCERTAINABLE FROM THE INVITATION AND THE BID ITSELF. 37 COMP. GEN. 210, 212; B-136927 DATED AUGUST 26, 1958. WHILE THE AGGREGATE TOTAL PRICE FOR ALL ITEMS BID UPON BY UNITED AND THE AMOUNT OF ITS BID DEPOSIT, BOTH OF WHICH WERE TYPED ON ITS BID, TEND TO SHOW THE COMPANY'S INTENTION TO QUOTE A PRICE OF $6,487 FOR ITEM 2, CONSIDERATION MUST ALSO BE GIVEN TO THE FACT THAT THE PRESIDENT OF THE COMPANY WROTE IN INK A PRICE OF $5,487 OPPOSITE THAT ITEM.

IT IS A WELL-SETTLED RULE OF LAW IN THE CONSTRUCTION OF CONTRACTS PARTLY WRITTEN AND PARTLY TYPED THAT IF THERE IS REPUGNANCE OR CONFLICT BETWEEN THE TYPED AND WRITTEN PROVISIONS THEREOF, THE WRITING WILL PREVAIL SINCE IT IS PRESUMED TO EXPRESS THE SPECIFIC INTENTION OF THE PARTIES. 17A C.J.S., CONTRACTS, SECTION 310; H. AND B. AMER. MACHINE CO. V. UNITED STATES, 81 CT.CL. 584, 593, CERTIORARI DISMISSED PER STIPULATION OF COUNSEL, 297 U.S. 726; DAVIS V. DUMIGAN, 205 P.2D 839, 841. SINCE UNDER THE ABOVE RULE THE WRITTEN PROVISIONS IN THE COMPANY'S BID PREVAIL OVER THE TYPEWRITTEN PROVISIONS, THE WRITTEN AMOUNT OF $5,487 MUST BE REGARDED AS THE COMPANY'S INTENDED BID PRICE FOR ITEM 2.

IN THESE CIRCUMSTANCES, THE CONTRACTING OFFICER HAD NO AUTHORITY TO CORRECT THE COMPANY'S BID ON ITEM 2 TO READ $6,487 SO AS TO DISPLACE THE HIGH BIDDER ON THAT ITEM. ACCORDINGLY, THE ORIGINAL AWARD TO UNITED ROAD MACHINERY COMPANY WHICH INCLUDED ITEM 2 SHOULD BE CANCELED AND THE CORRECTED AWARD MAY BE REGARDED AS THE VALID AWARD TO THE COMPANY.