B-169688, AUG. 12, 1970

B-169688, AUG. 12, 1970

CONTRACTS -- MISTAKES AFFIRMING DECISION OF MAY 27, 1970, HOLDING THAT SINCE INTENDED BID PRICE COULD NOT BE ASCERTAINED FROM BID FORM ALONE, WITHOUT RESORT TO EXTRANEOUS DOCUMENTS, CORRECTION COULD NOT BE PERMITTED, SINCE TO ALLOW SUCH CORRECTION WOULD DISPLACE SUCCESSFUL BIDDER.

TO SELTZER, CAPLAN, WILKINS & MCMAHON:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 3, 1970, AS ATTORNEYS FOR M. D. GOODRICH AND COMPANY, REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 27, 1970, WHEREIN WE DENIED YOUR CLIENT'S REQUEST FOR CORRECTION OF ITS BID ON ITEM 37 UNDER INVITATION FOR BIDS (IFB) NO. 46-0083, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, SAN DIEGO, CALIFORNIA.

IN OUR DECISION OF MAY 27, 1970, WE HELD THAT SINCE THE INTENDED BID PRICE BY M.D. GOODRICH AND COMPANY COULD NOT BE ASCERTAINED FROM THE BID FORM ALONE, WITHOUT RESORT TO EXTRANEOUS DOCUMENTS, CORRECTION COULD NOT BE PERMITTED, SINCE TO ALLOW SUCH CORRECTION WOULD RESULT IN THE DISPLACEMENT OF THE OSTENSIBLY SUCCESSFUL BIDDER.

IN YOUR REQUEST FOR RECONSIDERATION, YOU CONTEND THAT YOUR INTENDED BID PRICE WAS OBVIOUS FROM THE BID FORM ALONE, AND IN SUPPORT THEREOF YOU ADVISE AS FOLLOWS:

" *** THUS, IT WAS NOT MR. GOODRICH'S OFFICE THAT INITIALLY ADVISED OF THE NATURE OF THE ERROR AND HOW IT WAS TO BE CORRECTED, BUT RATHER IT WAS THE SALES CONTRACTING OFFICER OF THE DEFENSE SURPLUS SALES OFFICE IN SAN DIEGO WHO, UPON REVIEWING ONLY THE BID AS SUBMITTED, CONTACTED MR. GOODRICH'S OFFICE AND INFORMED HIS SECRETARY NOT ONLY THAT AN ERROR HAD BEEN MADE BUT ALSO THAT THE SPECIFIC ERROR WAS THAT THE UNIT PRICE HAD BEEN EXTENDED AT 50,000 POUNDS INSTEAD OF 150,000 POUNDS AS CALLED FOR IN THE INVITATION TO BID. IT WAS THEREFORE QUITE OBVIOUS TO THE SALES CONTRACTING OFFICER, AFTER REVIEWING ONLY THE BID AS SUBMITTED AND WITHOUT HAVING THE BENEFIT OF ANY OTHER EVIDENCE, THAT THE SPECIFIC ERROR WAS THAT MR. GOODRICH'S OFFICE HAD EXTENDED THE UNIT PRICE AT 50,000 POUNDS RATHER THAN 150,000 POUNDS, WHICH MISTAKE COULD BE READILY CORRECTED."

MR. PEACOCK, THE CONTRACTING OFFICER IN QUESTION, ANSWERS THESE ALLEGATIONS AS FOLLOWS:

"I CALLED M. D. GOODRICH TO VERIFY THEIR BID ON THE ITEM AS THE UNIT PRICE AND TOTAL PRICE WERE NOT COMPATIBLE. AT THE TIME I HAD NO IDEA WHETHER THE ERROR WAS IN THE UNIT PRICE OR EXTENSION, BUT RATHER SUSPECTED THAT THE WRONG ITEM MAY HAVE BEEN ENTERED SINCE THERE WERE ITEMS OF 50,000 POUNDS ON THE SALE (SEE ITEM 33).

"WHEN THE SECRETARY INFORMED ME SHE HAD INTENDED THE BID FOR ITEM 37 BUT HAD THROUGH AN ERROR EXTENDED BY ONLY 50,000 POUNDS IN LIEU OF 150,000 POUNDS, I AGREED THAT SUCH AN ERROR COULD HAVE BEEN MADE AND INFORMED HER OF THE INFORMATION AND DOCUMENTS REQUIRED TO PROCESS THEIR CLAIM OF ERROR IN BID." HENCE IT WOULD APPEAR THE CONTRACTING OFFICER NOTICED THAT FOR THE QUANTITY REQUIRED BY THE INVITATION YOUR CLIENT'S UNIT PRICE WAS NOT CONSISTENT WITH HIS EXTENDED PRICE. HOWEVER, YOUR CLIENT'S INTENDED BID PRICE WAS NOT CLEAR FROM THE FOUR CORNERS OF THE BID FORM ITSELF, AND TO SOLVE THIS PROBLEM THE CONTRACTING OFFICER ASKED YOUR CLIENT TO SUBMIT EXTRANEOUS EVIDENCE.

WITH REGARD TO YOUR ALLEGATION THAT MR. HOMANN OF THE DEFENSE SUPPLY AGENCY IN WASHINGTON, D. C., ADVISED YOUR CLIENT THAT EXTENDED BID PRICES WERE UNNECESSARY BECAUSE BIDS WERE BASED UPON THE UNIT PRICE, MR. HOMANN STATED IN A REPORT TO THE COMMANDER, DEFENSE LOGISTICS SERVICES CENTER, IN PERTINENT PART AS FOLLOWS:

"THEREFORE, CORRECTION CANNOT BE ALLOWED BECAUSE THE MISTAKE AND THE INTENDED BID ARE NOT SUBSTANTIALLY ASCERTAINABLE FROM THE INVITATION AND BID ITSELF. HERE THE ERROR COULD HAVE BEEN IN EITHER THE UNIT OR THE TOTAL PRICE. *** IT IS NOT POSSIBLE TO TELL FROM THE BID WHICH PRICE WAS IN ERROR OR WHICH WAS INTENDED.

"ACCORDINGLY, IT IS HEREBY DETERMINED PURSUANT TO AUTHORITY DELEGATED TO COUNSEL BY THE DIRECTOR, DSA, THAT THE BID OF M. D. GOODRICH & COMPANY ON ITEM 37 MAY BE WITHDRAWN."

WITH SPECIFIC REFERENCE TO THE QUESTION OF WHETHER THE CONTRACT WAS TO BE AWARDED ON A UNIT, OR A TOTAL, PRICE BASIS, IT SHOULD BE NOTED THAT STANDARD FORM 114-A, SALE OF GOVERNMENT PROPERTY, BID AND AWARD, PROVIDED FOR BID ACCEPTANCE BY THE GOVERNMENT IN A TOTAL AMOUNT, AND PARAGRAPH 12 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDED THAT "THE PURCHASE PRICE WILL BE ADJUSTED UPWARDS OR DOWNWARDS IN ACCORDANCE WITH THE UNIT PRICE AND ON THE BASIS OF THE QUANTITY OR WEIGHT ACTUALLY DELIVERED."

IN THIS CONNECTION, YOUR ATTENTION IS ALSO INVITED TO PARAGRAPH 3, PART 2, OF THE GENERAL SALE TERMS AND CONDITIONS IN THE DOCUMENT ENTITLED "SALE BY REFERENCE" (DISC FORM 436 (REV) MAR 69) WHICH WAS A PART OF THE IFB, AND WHICH STATES IN PART AS FOLLOWS:

"HOWEVER, UNLESS THE INVITATION OTHERWISE PROVIDES, A BID COVERING ANY LISTED ITEM MUST BE SUBMITTED ON THE BASIS OF THE UNIT SPECIFIED FOR THAT ITEM AND MUST COVER THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM."

IN VIEW OF THE ABOVE PROVISION IT COULD REASONABLY BE PRESUMED FROM A READING OF THE BID DOCUMENTS STANDING ALONE THAT YOUR CLIENT FOLLOWED THE INSTRUCTIONS WHICH REQUIRED A BID ON THE TOTAL NUMBER OF UNITS DESIGNATED FOR THAT ITEM, IN WHICH EVENT IT WOULD NECESSARILY FOLLOW THAT HIS TOTAL BID PRICE REFLECTED HIS INTENDED BID PRICE. THIS CONCLUSION WOULD CERTAINLY BE SUPPORTED BY THE FACT THAT YOUR CLIENT, PURSUANT TO THE REQUIREMENT THAT A PURCHASER DEPOSIT 20 PERCENT OF THE TOTAL AMOUNT BID, SUBMITTED A CHECK IN THE AMOUNT OF $7,500 WHICH IS SLIGHTLY IN EXCESS OF THE 20 PERCENT REQUIREMENT FOR YOUR CLIENT'S TOTAL PRICE AS SUBMITTED (INCLUDING $6,770 FOR ITEM 37), BUT CONSIDERABLY BELOW THAT REQUIRED HAD THE UNIT PRICE BEEN THE ONE INTENDED BY MR. GOODRICH. IN LIGHT OF THIS EVIDENCE, WE ARE UNABLE TO CONCLUDE THAT IT WAS APPARENT FROM THE FACE OF THE BID THAT YOUR CLIENT'S INTENDED TOTAL BID FOR ITEM 37 WAS NOT $6,770.

WITH REFERENCE TO THE TWO DECISIONS OF THIS OFFICE WHICH YOU CITE (B 128175, JUNE 19, 1956, AND B-147881, JUNE 22, 1962), WE NOTE THAT IN BOTH OF THOSE CASES THE ALLEGED MISTAKE COULD BE DETERMINED FROM THE BID FORM ALONE. THUS, ALTHOUGH WORKSHEETS AND OTHER DOCUMENTS WERE SUBMITTED AS PROOF OF ERROR IN BOTH CASES, THE AMOUNT OF THE ERROR AND THE INTENDED PRICE WERE READILY ASCERTAINABLE FROM THE BID FORM ITSELF IN EACH CASE. WE THEREFORE ARE UNABLE TO ACCEPT THOSE DECISIONS AS CONTROLLING IN THE PRESENT CASE. SIMILARLY, WE BELIEVE THE CASE OF EDMUND J. RAPPOLI COMPANY, INC. V UNITED STATES, 98 CT. CL. 499 (1943), WHICH YOU CITE, IS INAPPLICABLE SINCE IN THAT CASE THE BIDDER HAD ENTERED INTO A CONTRACT WITH THE GOVERNMENT ON THE EXPRESS REPRESENTATION BY A GOVERNMENT AGENT THAT, AFTER THE CONTRACT WAS ENTERED INTO, THE PRICE OF THE CONTRACT PRICE WOULD BE ADJUSTED TO REFLECT ANY ERROR IN THE BID PRICE.

ACCORDINGLY, UPON RECONSIDERATION, OUR DECISION OF MAY 27, 1970, IS AFFIRMED.

FOR YOUR INFORMATION, WE ARE ADVISED BY THE DEFENSE SUPPLY AGENCY THAT AWARD WAS MADE TO WESTERN NON-FERROUS METALS ON MAY 28, AND THE PROPERTY WAS REMOVED ON JUNE 25, 1970.