B-173717, OCT 6, 1971

B-173717, OCT 6, 1971

BID PROTEST - MISTAKE - ESTABLISHING INTENDED BID PRICE DECISION DENYING PROTEST OF KILLALY ASSOCIATES, INC., LOW BIDDER, AGAINST WITHDRAWAL BY THE NAVY PURCHASING OFFICE OF A REQUEST FOR A CERTIFICATE OF COMPETENCY AND REJECTION OF ITS BID. A FINDING AND DETERMINATION CONCERNING PROTESTANT'S ALLEGED MISTAKE CONCLUDED THAT THE EVIDENCE, WHILE CLEAR AND CONVINCING THAT A MISTAKE HAD BEEN MADE, FAILED TO ESTABLISH WHAT THE INTENDED BID WAS AND THEREFORE, THE BID WAS REJECTED. IT IS INCUMBENT ON A BIDDER WHO ALLEGES MISTAKE TO ESTABLISH THE INTENDED BID, UNDER THE CIRCUMSTANCES IT CANNOT BE SAID THAT THE PROCURING AGENCY ACTED IMPROPERLY.

TO KILLALY ASSOCIATES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 27, 1971, WITH ENCLOSURE, PROTESTING THE WITHDRAWAL BY THE NAVY PURCHASING OFFICE OF A REQUEST FOR A CERTIFICATE OF COMPETENCY (COC) FOR YOUR COMPANY UNDER INVITATION FOR BIDS N00600-71-B-0224, ISSUED BY THE NAVY PURCHASING OFFICE, WASHINGTON, D.C.

THE SUBJECT INVITATION, ISSUED ON FEBRUARY 26, 1971, REQUESTED BIDS ON A NUMERICALLY CONTROLLED TURRET-TYPE PUNCHING MACHINE WITH THE PLACE OF DELIVERY SPECIFIED AS F.O.B. PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON. BIDS IN RESPONSE TO THE INVITATION WERE OPENED MARCH 30, 1971, WITH YOUR FIRM'S BID OF $99,987.63 BEING THE LOWEST RECEIVED. THE SECOND AND THIRD LOWEST BIDS WERE $128,793 AND $133,192, RESPECTIVELY.

BY LETTER OF APRIL 5, 1971, THE CONTRACTING OFFICER ADVISED YOU THAT BECAUSE OF THE GREAT DISPARITY BETWEEN YOUR BID PRICE AND THOSE OF THE OTHER BIDDERS, AN ERROR WAS SUSPECTED AND YOU WERE REQUESTED TO EITHER CONFIRM THE BID PRICE OR, IF A MISTAKE IN BID HAD BEEN MADE, A STATEMENT TO THAT EFFECT AND SUBMISSION OF DATA IN SUPPORT THEREOF.

BY LETTER OF APRIL 13, 1971, YOU ADVISED THE PROCUREMENT ACTIVITY THAT YOU HAD MADE A MISTAKE IN YOUR BID AND REQUESTED PERMISSION TO CORRECT YOUR BID UPWARD TO $117,468.93. YOU ALLEGED MISTAKES IN CALCULATING THE DELIVERY COST OF THE ITEM AND IN OMITTING SOME ITEMS OF NUMERICAL CONTROL EQUIPMENT REQUIRED IN THE SPECIFICATION AND WITH YOUR LETTER OF APRIL 13, 1971, AND IN SUBSEQUENT CORRESPONDENCE, YOU SUBMITTED DATA TO SUPPORT YOUR ALLEGATIONS.

IN ORDER TO MINIMIZE DELAY IN PROCESSING THE PROCUREMENT, ON APRIL 5, 1971, THE PROCUREMENT ACTIVITY REQUESTED THE PHILADELPHIA, PENNSYLVANIA, DEFENSE CONTRACT ADMINISTRATION SERVICE REGION (DCASR), TO CONDUCT A PREAWARD SURVEY ON YOUR FIRM WHILE THE ABOVE-MENTIONED BID VERIFICATION PROCEDURES WERE TAKING PLACE. ON APRIL 23, 1971, DCASR, PHILADELPHIA, ISSUED ITS PREAWARD SURVEY REPORT RECOMMENDING NO AWARD TO YOUR FIRM BECAUSE OF A LACK OF FINANCIAL RESOURCES. ON JUNE 11, 1971, THE PROCUREMENT ACTIVITY, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-705.4(C), FORWARDED THE NEGATIVE PREAWARD REPORT TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR POSSIBLE ISSUANCE OF A COC AS TO YOUR CAPACITY AND CREDIT. THEREAFTER, YOU ELECTED TO FILE WITH SBA FOR A COC BY LETTER OF JUNE 14, 1971, AND SBA NOTIFIED THE PROCURING ACTIVITY ACCORDINGLY.

PURSUANT TO ASPR 2-406.3(A), A FINDINGS AND DETERMINATION CONCERNING YOUR ALLEGED MISTAKE WAS ISSUED BY THE PROCUREMENT ACTIVITY ON JUNE 30, 1971. THE FINDING AND DETERMINATION STATED THAT WHILE THE EVIDENCE YOU SUBMITTED WAS CLEAR AND CONVINCING THAT YOU HAD MADE MISTAKES IN YOUR BID, YOU FAILED TO ESTABLISH WHAT YOUR INTENDED BID WAS AND, THEREFORE, YOUR BID WOULD BE DISREGARDED. IN THIS REGARD, THE FINDINGS AND DETERMINATION STATED, IN PART, THAT:

"IN CONNECTION WITH THE BIDDER'S REQUEST FOR CORRECTION, THE BIDDER SUBMITTED EVIDENCE REGARDING HIS ERRORS, EXPLAINING THAT HIS FREIGHT COST WAS ERRONEOUSLY BASED ON DELIVERY OF THE SUPPLIES FROM HIS WILLOW GROVE, PENNSYLVANIA PLANT TO ANNAPOLIS, MARYLAND (THE LOCATION OF THE REQUISITIONING ACTIVITY). AS A RESULT, HE ALLEGES THE BID PRICE INCLUDES ONLY $510 FOR FREIGHT, BASED ON DELIVERY OF 60,000 POUNDS AT $.85/C. HE CLAIMS THAT THE FREIGHT RATE FOR DELIVERY TO BREMERTON, WASHINGTON IS NOW $7.53/C AND THAT HIS FREIGHT COST SHOULD HAVE BEEN $4,518. HOWEVER, HE SUBMITTED A COPY OF BELLEVUE TRUCKING COMPANY'S (A FIRM DIFFERENT FROM THE ORIGINAL QUOTER) LETTER STATING THAT ITS QUOTATION OF $7.53/C ON 60,000 POUNDS HAS BEEN SUPERSEDED BY $8.31/C (WHICH WOULD RESULT IN A DIFFERENT COST OF $4,986 FOR FREIGHT). EVEN THOUGH THE BIDDER CLAIMS HE INCLUDED $510 IN HIS BID PRICE FOR FREIGHT, IT APPEARS FROM HIS ALLEGED ORIGINAL WORKSHEET THAT HE MAY HAVE OMITTED THE FREIGHT COST ENTIRELY. AN ADDITION OF THE COSTS ON THAT WORKSHEET REVEALS AN INCONSISTENT DIFFERENCE OF $510 LESS THAN THE BID PRICE SUBMITTED.

"REGARDING THE NUMERICAL CONTROL EQUIPMENT, THE BIDDER EXPLAINED THAT HIS BID PRICE WAS BASED ON WESTINGHOUSE ELECTRIC CORPORATION'S QUOTATION OF $7,650 FOR ITS MODEL W23 CONTROL WHICH HE NOW DISCOVERS WOULD NOT HAVE MET SPECIFICATION REQUIREMENTS. HE NOW REQUESTS THAT HE BE PERMITTED TO REVISE HIS PRICE BASED ON USING WESTINGHOUSE MODEL W20 CONTROL. SUBMITTED A COPY OF THE SUPPLIER'S QUOTATION OF 16 JUNE 1971, SHOWING $22,410 FOR MODEL W20 AND $16,700 FOR MODEL W23, SUBJECT TO 18% DISCOUNT. WESTINGHOUSE STATED THAT THE PRICE FOR MODEL W23 REFLECTS A 5.2% INCREASE ON ALL CONTROLS AND OPTIONS. IT IS NOT CLEAR FROM THE BIDDER'S WORKSHEETS, NOR HIS EXPLANATION, HOW HE ARRIVED AT THE REQUESTED INCREASE OF $13,473.30 FOR NUMERICAL CONTROL EQUIPMENT, NOR THE PRICE OF $7,650 INCLUDED IN THE BID SUBMITTED. NEITHER PRICE RESULTS WHEN THE 18% DISCOUNT IS IS APPLIED AND THE 5.2% INCREASE DEDUCTED WITH RESPECT TO MODEL W23."

WE ARE UNABLE TO SUBSCRIBE TO YOUR CONTENTION THAT THE PROCUREMENT ACTIVITY ACTED IMPROPERLY IN ITS DETERMINATION TO DISREGARD YOUR BID AND IN WITHDRAWING ITS REQUEST FOR A COC. IN THE CIRCUMSTANCES, IT APPEARS THAT THE REQUEST FOR RECISION OF THE COC WAS PROPER AS YOUR BID COULD NOT BE CONSIDERED FOR AWARD DUE TO YOUR FAILURE TO CLEARLY ESTABLISH YOUR INTENDED BID PRICE. OUR OFFICE HAS CONSISTENTLY HELD THAT IT IS INCUMBENT ON THE PART OF A BIDDER WHO ALLEGES MISTAKE TO BE ABLE TO ESTABLISH HIS INTENDED BID PRICE. 47 COMP. GEN. 507 (1968); B 164620, SEPTEMBER 3, 1968. IF HE FAILS TO DO THIS, THE BID MAY NOT BE ACCEPTED, ESPECIALLY WHERE, AS HERE, A SUBSTANTIAL DIFFERENCE EXISTS BETWEEN HIS BID AND OTHER BIDS RECEIVED. SEE 42 COMP. GEN. 723 (1963); 41 ID. 289 (1961).

FROM THE FOREGOING, IT MUST BE CONCLUDED THAT THE ACTIONS THE PROCUREMENT ACTIVITY TOOK IN REGARD TO YOUR BID WAS PROPER IN THE CIRCUMSTANCES. ACCORDINGLY, YOUR PROTEST IS DENIED.