B-171794, MAY 21, 1971

B-171794, MAY 21, 1971

BID PROTEST - ERROR IN BID - CONFIRMATION DENYING PROTEST OF WOLVERINE DIESEL POWER COMPANY AGAINST THE AWARD OF A CONTRACT TO LIBBY WELDING COMPANY UNDER AN IFB ISSUED BY THE U.S. ARMY MOBILITY EQUIPMENT COMMAND, ST. LOUIS, MISSOURI, FOR PROCUREMENT OF 95 UTILITY ELEMENTS. LIBBY, AFTER BEING ADVISED OF THE POSSIBILITY OF ERROR IN ITS BID BY REASON OF THE DISPARITY IN BIDS, CONFIRMED ITS BID PRICE. THE PRE AWARD SURVEY DISCLOSED NO EVIDENCE OF POSSIBLE MISTAKE. IN THE CIRCUMSTANCES, THERE IS NO BASIS ON WHICH TO CONCLUDE THAT THE PRICE WAS COMPUTED IN ERROR. EVEN IF LIBBY CANNOT PERFORM THE CONTRACT AT ITS BID PRICE, NO LEGAL PRINCIPLE PRECLUDES AWARD MERELY BECAUSE THE LOW BIDDER SUBMITTED AN UNPROFITABLE PRICE.

TO WOLVERINE DIESEL POWER COMPANY:

REFERENCE IS MADE TO YOUR TELEFAX DATED JANUARY 28, 1971, AND LETTERS DATED FEBRUARY 15 AND MARCH 9, 1971, PROTESTING THE AWARD OF A CONTRACT TO LIBBY WELDING COMPANY UNDER INVITATION FOR BIDS NO. DAAK01-71-B 1732, ISSUED BY THE UNITED STATES ARMY MOBILITY EQUIPMENT COMMAND (MECOM), ST. LOUIS, MISSOURI.

THE SOLICITATION, FOR A FORMALLY ADVERTISED PROCUREMENT, WAS ISSUED ON OCTOBER 1, 1970, FOR 95 UTILITY ELEMENTS, WITH RELATED ITEMS. A PRE BID CONFERENCE WAS HELD AT MECOM ON OCTOBER 15, 1970, FOR THE PURPOSE OF BRIEFING PROSPECTIVE BIDDERS AND EXPLAINING SPECIFICATIONS AND REQUIREMENTS. ALL PROSPECTIVE BIDDERS WERE FURNISHED COPIES OF THE PRE BID CONFERENCE MINUTES. SIX AMENDMENTS WERE ISSUED TO THE SOLICITATION INCORPORATING A PRE-PRODUCTION AND PRODUCTION EVALUATION CLAUSE, ANSWERING PRE-BID CONFERENCE QUESTIONS, AND OF PARTICULAR IMPORTANCE, SUBSTITUTING THE REQUIREMENT THAT BIDS BE BASED ON STATED GOVERNMENT FURNISHED, SOLE- SOURCE EQUIPMENT IN LIEU OF CONTRACTOR-FURNISHED EQUIPMENT. THE BID OPENING DATE WAS EXTENDED TO DECEMBER 4, 1970.

OF THE NINE BIDS RECEIVED, LIBBY'S, AS EVALUATED, WAS OVER $600,000 LESS THAN THE NEXT LOW BID OF WOLVERINE DIESEL POWER COMPANY, AND OVER ONE MILLION DOLLARS LESS THAN THE THIRD LOW BID.

NOTING THE PRICE DISPARITY BETWEEN THE LIBBY BID AND THE NEXT BIDS, THE CONTRACTING OFFICER ADVISED LIBBY BY TELEGRAM OF THE POSSIBILITY OF A MISTAKE IN BID. LIBBY, BY TELEGRAM OF DECEMBER 11, 1970, REPLIED IN RESPONSE THAT "WE HAVE REVIEWED OUR BID WORKSHEETS AND DATA USED TO PREPARE OUR BID AND WE CONFIRM OUR PRICES AS BID." AWARD WAS MADE TO LIBBY ON JANUARY 21, 1971.

YOU CONTEND THAT THERE IS NO WAY FOR LIBBY TO PERFORM AND DELIVER THE EQUIPMENT AT THE AWARD PRICE BECAUSE YOU AND THE THIRD LOW BIDDER, TECHNICALLY COMPETENT AND EXPERIENCED COMPANIES, BID $700,000 TO $1,000,000 HIGHER.

THE RECORD SHOWS THAT A PRE-AWARD SURVEY WAS CONDUCTED ON LIBBY BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES, KANSAS CITY, MISSOURI. THE SURVEY REPORT CONFIRMS THAT COMMITMENTS HAD BEEN RECEIVED BY LIBBY ON ALL PARTS AND MATERIALS REQUIRED BY THE DRAWINGS WITH DELIVERY DATES PROVIDED ON EACH AND THAT LIBBY WAS CAPABLE OF MEETING THE FINANCIAL COMMITMENTS NECESSARY TO COMPLETE THE CONTRACT. THE SURVEY TEAM RECOMMENDED COMPLETE AWARD TO LIBBY.

LIBBY, AFTER BEING ADVISED OF THE POSSIBILITY OF ERROR IN ITS BID BY REASON OF THE DISPARITY IN BIDS, CONFIRMED ITS BID PRICE. ALSO THE PRE AWARD SURVEY DISCLOSED NO EVIDENCE OF POSSIBLE MISTAKE. IN THE CIRCUMSTANCES, WE FIND NO BASIS ON WHICH TO CONCLUDE THAT THE PRICE WAS COMPUTED IN ERROR. EVEN IF LIBBY CANNOT PERFORM THE CONTRACT AT ITS BID PRICE, WE ARE AWARE OF NO LEGAL PRINCIPLE ON WHICH AN AWARD MAY BE PRECLUDED OR DISTURBED MERELY BECAUSE THE LOW BIDDER SUBMITTED AN UNPROFITABLE PRICE. B-149551, AUGUST 16, 1962; B-150318, MARCH 25, 1963. SEE ALSO B-170360, APRIL 6, 1971.

YOU CONTEND THAT THE CONTRACT ADMINISTRATOR FOR WOLVERINE MADE A VISIT TO MECOM ON JANUARY 14, 1971, AND WAS NOT GIVEN THE OPPORTUNITY TO PERSONALLY DISCUSS THE BID WITH MECOM REPRESENTATIVES. THE ADMINISTRATIVE REPORT INDICATES THAT A REPRESENTATIVE OF THE CONTRACTING OFFICER, TO WHOM YOUR CONTRACT ADMINISTRATOR WAS REFERRED WAS NOT ABLE TO MEET WITH THE LATTER BECAUSE OF SCHEDULING CONFLICTS, BUT THE TWO DID DISCUSS THE MATTER BY PHONE. IT IS REGRETTABLE THAT ARRANGEMENTS COULD NOT HAVE BEEN MADE FOR THE PERSONAL MEETING WHICH YOU APPARENTLY HAD EXPECTED AND DESIRED. HOWEVER, THE FAILURE TO OBTAIN THE MEETING CAN HAVE NO EFFECT ON THE VALIDITY OF THE AWARD. YOUR PROTEST IS ACCORDINGLY DENIED.