B-166795, JULY 3, 1969, 49 COMP. GEN. 12

B-166795, JULY 3, 1969, 49 COMP. GEN. 12

BIDS -- MISTAKES -- UNIT PRICE V EXTENSION DIFFERENCES -- NOT APPARENT ON FACE OF BID AN OBVIOUS DISCREPANCY BETWEEN UNIT AND TOTAL PRICES IN A BID FOR THE CARE OF THE REMAINS OF DECEASED PERSONNEL SUBMITTED UNDER AN INVITATION FOR BIDS THAT REQUESTED UNIT AND EXTENDED PRICES ON ESTIMATED QUANTITIES OF 22 DIFFERENT ITEMS AND/OR SUBITEMS OF SERVICES AND SUPPLIES AND THAT PROVIDED THE UNIT PRICE WILL PREVAIL IN CASE OF DISCREPANCY BETWEEN UNIT AND EXTENDED PRICES, SUBJECT TO CORRECTION IN THE SAME MANNER AS ANY OTHER MISTAKE, MAY NOT BE CORRECTED PURSUANT TO PARAGRAPH 2-406.2 OF THE ARMED SERVICES PROCUREMENT REGULATION AS AN ERROR "APPARENT ON THE FACE OF THE BID," ABSENT EVIDENCE OF WHETHER THE ERROR OCCURRED IN THE UNIT PRICE OR THE EXTENDED PRICE. TO PERMIT CORRECTION OF THE ERROR WOULD GIVE THE BIDDER AN OPPORTUNITY TO SELECT EITHER THE UNIT PRICE OR THE PURPORTED EXTENDED PRICE, THUS ADVERSELY AFFECTING CONFIDENCE IN THE COMPETITIVE BIDDING SYSTEM.

TO THE JACK LEWIS, INC., JULY 3, 1969:

REFERENCE IS MADE TO YOUR TELEGRAM OF APRIL 29, 1969, AND SUBSEQUENT CORRESPONDENCE, PROTESTING AGAINST AN AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. F07603-69-B-0177, ISSUED AT THE DOVER AIR FORCE BASE, DELAWARE.

THIS SOLICITATION, ISSUED FEBRUARY 28, 1969, INVITED BIDS FOR FURNISHING SERVICES, SUPPLIES AND TRANSPORTATION REQUIRED DURING THE PERIOD JULY 1, 1969, THROUGH JUNE 30, 1970, FOR THE CARE OF REMAINS OF DECEASED PERSONNEL AT DOVER AIR FORCE BASE, IN ACCORDANCE WITH CERTAIN ARMED SERVICES SPECIFICATIONS ENTITLED "CARE OF REMAINS OF DECEASED PERSONNEL (PORT OF ENTRY REQUIREMENTS)," DATED JANUARY 3, 1969.

BIDS WERE REQUESTED ON 22 DIFFERENT ITEMS AND/OR SUBITEMS OF SERVICES AND SUPPLIES, EACH OF WHICH SHOWED THE ESTIMATED QUANTITY OF UNITS OF SERVICES OR SUPPLIES THAT WOULD BE ORDERED DURING THE CONTRACT PERIOD AND REQUESTED BIDDERS TO SHOW THEIR UNIT BID PRICE AND TOTAL EXTENDED BID PRICE FOR EACH ITEM. THE SOLICITATION PROVIDED THAT BIDS WOULD BE EVALUATED ON THE BASIS OF THE ESTIMATED QUANTITIES AND THE AWARD WOULD BE MADE TO THE RESPONSIVE AND RESPONSIBLE BIDDER WHOSE TOTAL AGGREGATE PRICE FOR ALL ITEMS IS LOW.

SIX BIDS WERE RECEIVED AND OPENED ON APRIL 1, 1969, AS SCHEDULED. THE AGGREGATE AMOUNTS OF THE TWO LOWEST BIDS WERE AS FOLLOWS:

JACK LEWIS, INC., $923,900 NET

BALTIMORE, MARYLAND

FAIRFAX FUNERAL HOME, INC., $974,900 NET

T/A COVINGTON MARTIN,

FALLS CHURCH, VIRGINIA

THE OTHER BIDS WERE $1,060,500, $1,100,000 (AFTER CORRECTION OF ERROR IN ADDITION), $1,316,000, AND $1,694,625.

IN THE APPARENT LOW BID OF $923,900 SUBMITTED BY JACK LEWIS, INC., THE CONTRACTING OFFICER NOTED AN OBVIOUS DISCREPANCY IN ITEM 7, WHICH WAS AS FOLLOWS:

7. FOR MAJOR RESTORATIVE ART IN ACCORDANCE WITH SPECIFICATIONS; ESTIMATED QUANTITY, 10,000 EACH; UNIT, 1/4 HOUR; UNIT PRICE, $7.00; ESTIMATED (TOTAL) AMOUNT, $17,500.

THE TOTAL AGGREGATE PRICE OF $923,900 WAS ARRIVED AT BY USING $17,500 AS THE CORRECT TOTAL PRICE FOR ITEM 7.

PARAGRAPH 2(C) OF STANDARD FORM 33 ENTITLED "SOLICITATION INSTRUCTIONS AND CONDITIONS," WHICH WAS A PART OF THE SOLICITATION, PROVIDES AS FOLLOWS:

IN CASE OF DISCREPANCY BETWEEN A UNIT PRICE AND EXTENDED PRICE, THE UNIT PRICE WILL BE PRESUMED TO BE CORRECT, SUBJECT, HOWEVER, TO CORRECTION TO THE SAME EXTENT AND IN THE SAME MANNER AS ANY OTHER MISTAKE.

AFTER BID OPENING, THE CONTRACTING AGENCY BY TELEPHONE REQUESTED JACK LEWIS, INC., TO VERIFY ITS BID PRICE ON ITEM 7. THE BIDDER ALLEGED THAT A CLERICAL ERROR HAD BEEN MADE IN STATING THE UNIT PRICE OF THE ITEM AS $7, WHICH WAS ITS INTENDED HOURLY RATE, BUT THAT BOTH THE EXTENSION OF THE ITEM AND THE AGGREGATE BID PRICE WERE CORRECT. BY LETTER DATED APRIL 4, 1969, THE BIDDER STATED:

IN OUR BID OF $923,900 AS WAS STATED THE ARITHMETIC WAS CORRECT, BUT OUR BOOKKEEPER MADE THE MISTAKE OF UNIT PRICING BY THE HOUR RATHER THAN 1/4 HOUR. LINE 7 SHOULD READ AS FOLLOWS:

FOR MAJOR RESTORATIVE AREA IN 10,000 EACH 1/4 $1.75 $17,500

ACCORDANCE WITH SPECIFICATIONS. HOUR.

THE CONTRACTING OFFICER FORWARDED THE MATTER ON APRIL 15 TO HEADQUARTERS AFLC AS A MISTAKE IN BID WITH RECOMMENDATION THAT THE UNIT PRICE BE CORRECTED TO $1.75 AS REQUESTED. UNDER DATE OF APRIL 25 THE CASE WAS RETURNED BY THE ACTING STAFF JUDGE ADVOCATE WITH AN ADMINISTRATIVE DETERMINATION IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3(A)(4) "THAT CLEAR AND CONVINCING EVIDENCE HAS NOT BEEN PRESENTED ESTABLISHING THE EXISTENCE OF A MISTAKE OR THE ALLEGED INTENDED BID PRICE. *** THAT THE BID OF JACK LEWIS, INC., SHOULD BE CONSIDERED FOR AWARD AS SUBMITTED WITHOUT CHANGE."

THE RESULT OF THIS DETERMINATION WAS THAT YOUR CONCERN'S BID ON ITEM 7 WAS CONSIDERED ON THE BASIS OF $7 PER 1/4 HOUR, CORRECTED TO AN EXTENDED AMOUNT OF $70,000 PURSUANT TO THE PROVISIONS OF PARAGRAPH 2(C) OF STANDARD FORM 33A QUOTED ABOVE. THIS RESULTED IN A TOTAL AGGREGATE BID OF $976,400, AND MADE THE BID OF FAIRFAX FUNERAL HOME IN THE AMOUNT OF $974,900 THE LOW BID.

YOU CONTEND THAT YOUR MISTAKE WAS AN APPARENT CLERICAL MISTAKE, AND THAT THE CONTRACTING OFFICER WAS THEREFORE AUTHORIZED TO CORRECT YOUR UNIT BID PRICE TO $1.75 UNDER ASPR 2-406.2 AFTER YOU WERE REQUESTED TO VERIFY, AND DID VERIFY, THAT $1.75 WAS YOUR INTENDED UNIT BID PRICE. YOU THEREFORE REQUEST THAT THE CONTRACTING OFFICER BE SO ADVISED AND THAT HE BE DIRECTED TO ACCEPT YOUR BID PRICE OF $923,900, BASED UPON $17,500 AS YOUR CORRECT EXTENDED BID PRICE FOR ITEM 7, AS THE LOW BID, AND TO MAKE AN AWARD PURSUANT THERETO.

WHILE ASPR 2-406.2 AUTHORIZES THE CORRECTION OF A CLERICAL MISTAKE WHICH IS "APPARENT ON THE FACE OF A BID," WE ARE OF THE VIEW THAT SUCH A SITUATION IS NOT PRESENT HERE, SINCE IT IS NOT APPARENT FROM THE FACE OF THE BID WHETHER THE ERROR OCCURRED IN THE UNIT PRICE OR IN THE EXTENDED PRICE.

IN THIS CONNECTION, THE RECORD SHOWS THAT THE UNIT PRICES BID FOR ITEM 7 IN THE SIX BIDS RECEIVED RANGED FROM $7 TO $1.25, WITH TWO BIDDERS QUOTING $7; ONE BIDDER QUOTING $5; ONE BIDDER QUOTING $3; ONE BIDDER QUOTING $2.50; AND ONE BIDDER QUOTING $1.25. THE PROCURING ACTIVITY HAD ESTIMATED A REASONABLE PRICE OF $5 A UNIT FOR THIS ITEM. THE REASONABLENESS OF THIS ESTIMATE IS FURTHER ESTABLISHED BY THE BIDS RECEIVED ON ITEM 7 IN RESPONSE TO THE IFB FOR THE REQUIREMENTS OF FISCAL YEAR 1969 WHEREIN FOUR BIDDERS BID $10 PER HALF HOUR; ONE BIDDER BID $15 PER HALF HOUR; AND ONE BIDDER BID $16.25 PER HALF HOUR. IT IS INTERESTING TO NOTE THAT IN THAT PROCUREMENT YOUR COMPANY BID $10 PER HALF HOUR, WHICH WOULD APPEAR TO PRECLUDE A DETERMINATION IN THE INSTANT CASE THAT IT WAS APPARENT FROM THE FACE OF YOUR BID THAT YOU INTENDED TO BID $1.75 RATHER THAN $7, PER 1/4 HOUR.

FURTHERMORE, IF THE PROCEDURES FOR WHICH YOUR ATTORNEY CONTENDS HAD BEEN FOLLOWED IT WOULD HAVE GIVEN YOU THE OPPORTUNITY TO SELECT EITHER THE UNIT PRICE BID OR THE PURPORTED EXTENSION THEREOF, WHICHEVER MAY HAVE OPERATED TO YOUR ADVANTAGE. TO ILLUSTRATE, HAD FAIRFAX'S TOTAL BID BEEN $1,501 HIGHER IT WOULD HAVE EXCEEDED YOUR TOTAL BID PRICE COMPUTED ON THE BASIS OF $7 PER 1/4 HOUR FOR ITEM 7 AND AN EXTENDED PRICE OF $70,000 FOR THAT ITEM. IN THAT EVENT, YOU COULD CLEARLY HAVE CONTENDED THAT YOUR EXTENDED PRICE OF $17,500 WAS IN ERROR, AND INSISTED ON AN AWARD BASED UPON A UNIT PRICE OF $7 FOR ITEM 7.

WE MUST THEREFORE CONCLUDE THAT THE CORRECTION FOR WHICH YOU CONTEND WOULD CONFER AN UNFAIR COMPETITIVE ADVANTAGE UPON YOUR COMPANY.

WE DO NOT QUESTION THAT YOU MADE A MISTAKE AS ALLEGED. HOWEVER, AS WE STATED IN 48 COMP. GEN. 748, MAY 14, 1969, REGARDLESS OF THE GOOD FAITH OF THE BIDDER MAKING A MISTAKE, CORRECTION SHOULD BE DENIED IN ANY CASE IN WHICH THERE EXISTS A REASONABLE BASIS FOR ARGUMENT THAT PUBLIC CONFIDENCE IN THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM WOULD BE ADVERSELY AFFECTED THEREBY. IN OUR OPINION, THIS IS SUCH A CASE. ACCORDINGLY, FOR THE REASONS STATED YOUR PROTEST IS DENIED.