B-177707, APR 3, 1973, 52 COMP GEN 624

B-177707, APR 3, 1973, 52 COMP GEN 624

BIDS - ALL OR NONE - OMISSION OF ITEM EFFECT UNDER AN INVITATION FOR BIDS FOR THE PREPARATION OF PERSONAL PROPERTY OF MILITARY PERSONNEL FOR SHIPMENT OR STORAGE THAT DIVIDED DELIVERY REQUIREMENTS INTO SCHEDULES I, II, AND III, EACH SCHEDULE FURTHER DIVIDED INTO THREE GEOGRAPHICAL AREAS, A BIDDER WHO WHEN AWARDED A CONTRACT FOR SCHEDULES II AND III AS LOW BIDDER ALLEGED INTENT TO BID ON AN "ALL-OR- NONE" BASIS, EXCEPT FOR THE INDICATED EXCLUSION OF AREA I, SCHEDULE III, MAY NOT HAVE ITS BID CORRECTED AS FOR A MINOR ERROR, NOR MAY THE BID BE DISREGARDED, SINCE THE ERROR IN DESIGNATING THE ALL OR-NONE PORTION OF THE BID IS NOT ASCERTAINABLE FROM THE BID DOCUMENTS AND CORRECTIONS WOULD DISPLACE THE LOW BIDDER ON SCHEDULE I (ASPR 2 406.3(A)(3)). ALTHOUGH AN AWARD FOR THE THREE SCHEDULES ON AN ALL-OR NONE BASIS WOULD BE PECUNIARILY ADVANTAGEOUS TO THE GOVERNMENT, THE PRESERVATION OF THE COMPETITIVE SYSTEM REQUIRES THE RIGHTS OF OTHER BIDDERS TO BE CONSIDERED.

TO DENNING & WOHLSTETTER, APRIL 3, 1973:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 21, 1973, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST AWARD TO ANY FIRM OTHER THAN THE DE WITT TRANSFER AND STORAGE COMPANY UNDER INVITATION FOR BIDS NO. N00244 73- B-0300, ISSUED BY THE NAVAL SUPPLY CENTER, SAN DIEGO, CALIFORNIA.

BIDDERS WERE REQUESTED TO SUBMIT BIDS ON A REQUIREMENT FOR PREPARATION OF PERSONAL PROPERTY OF MILITARY PERSONNEL FOR SHIPMENT OR STORAGE AND FOR INTRA-CITY/INTRA-AREA MOVEMENT FOR A 1-YEAR PERIOD ENDING DECEMBER 31, 1973. THE REQUIREMENT WAS DIVIDED INTO SCHEDULES I, II AND III, EACH SCHEDULE BEING FURTHER DIVIDED INTO THREE GEOGRAPHICAL AREAS. THE INVITATION PROVIDED FOR THE EVALUATION OF BIDS ON THE BASIS OF THE TOTAL AGGREGATE PRICE OF ALL ITEMS WITHIN AN AREA OF PERFORMANCE UNDER A GIVEN SCHEDULE.

AT BID OPENING, DE WITT WAS FOUND TO BE LOW BIDDER ON SCHEDULES II AND III ONLY. UPON LEARNING THAT THE CONTRACTING OFFICER INTEDED TO MAKE AN AWARD ON THAT BASIS, DE WITT QUERIED WHY IT WOULD NOT RECEIVE AN AWARD ON SCHEDULE I ALSO. THE CONTRACTING OFFICER NOTED THAT THE COVER LETTER WITH THE DE WITT BID STATED AS FOLLOWS:

PLEASE BE ADVISED, ENCLOSED SOLICITATION NUMBER N00244-73-B-0300, PRESENTED AS FOLLOWS:

SCHEDULE I AREA 1, 2 & 3 ALL OR NONE

SCHEDULE II AREA 1, 2, & 3 ALL OR NONE

SCHEDULE III AREA 2 AND 3 ALL OR NONE

NO SECONDARY OR TRITARY, SCHEDULE III, AREA 1.

DE WITT ALLEGED THAT THIS LANGUAGE RESULTED FROM A SECRETARIAL ERROR IN TRANSFERRING THE LIMITATIONS FROM DICTATED NOTES TO THE COVER LETTER. WITT CONTENDED THAT IT INTENDED TO BID ON AN ALL-OR-NONE BASIS FOR THE COMBINED SCHEDULES I, II AND III, EXCLUDING AREA I OF SCHEDULE III.

THE CONTRACTING OFFICER DETERMINED THE ALLEGED ERROR NOT TO BE MINOR UNDER ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405 AND ACCORDINGLY DENIED DE WITT'S REQUEST FOR CORRECTION OF THE BID. DE WITT PROTESTED THE DECISION. UPON RECEIPT OF THE PROTEST BY THE DEPUTY COMMANDER, PROCUREMENT MANAGEMENT, NAVAL SUPPLY SYSTEMS COMMAND, IT WAS RECOGNIZED THAT THE REGULATION APPLICABLE TO AN ALLEGED MISTAKE WAS ASPR 2-406 AND THE AUTHORITY TO DECIDE WHETHER CORRECTION COULD BE MADE LAY WITH THE DEPUTY COMMANDER. THE PROTESTANT WAS ADVISED OF THIS AND REQUESTED TO SUBMIT A STATEMENT AS TO THE NATURE OF THE MISTAKE, HOW IT OCCURRED AND THE INTENDED BID PRICE, AND A WRITTEN REQUEST INDICATING THE FIRM'S DESIRE TO WITHDRAW OR MODIFY THE BID. IN RESPONSE TO THIS ADVICE, THE ATTORNEY FOR DE WITT BY LETTER OF JANUARY 22, 1973, ALLEGED THAT THE BIDDER INTENDED AT ALL TIMES TO BID "ALL OR NONE" AS REGARDED ALL ITEMS BID UPON, AND IT WAS REQUESTED THAT THE BID BE CHANGED ACCORDINGLY OR BE DISREGARDED. AN AFFIDAVIT FROM THE SECRETARY WHO ALLEGEDLY MADE THE ERROR EXPLAINING HOW IT HAD OCCURRED WAS ALSO FURNISHED.

AFTER CONSIDERING THE EVIDENCE, THE DEPUTY COMMANDER NOTED THAT THE GOVERNING REGULATION IN THE MATTER, ASPR 2-406.3(A)(3), STATES AS FOLLOWS:

(3) WHERE THE BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE; PROVIDED THAT, IN THE EVENT SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER BIDS, THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF.***.

ALTHOUGH THE EXTRINSIC EVIDENCE FURNISHED BY THE BIDDER OUTSIDE THE INVITATION AND THE BID WAS CONSIDERED CONVINCING AS TO THE FACT THAT A MISTAKE IN BID HAD BEEN MADE, CORRECTION OF THE ALLEGED MISTAKE WAS NOT ALLOWED IN VIEW OF ASPR 2-406.3(A)(3) BECAUSE IT WOULD RESULT IN DISPLACING THE LOW AGGREGATE BIDDER ON SCHEDULE I. THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED WERE NOT CONSIDERED TO BE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID. FURTHER, THE EVIDENCE WAS CONSIDERED TO CONFLICT AS TO WHETHER AN ALL-OR-NONE BID WAS INTENDED ON ALL THREE SCHEDULES IN TOTO OR ON ALL THREE SCHEDULES LESS AREA I OF SCHEDULE III.

THE ORIGINAL REQUEST OF THE ATTORNEY FOR DE WITT BY LETTER OF JANUARY 8, 1973, WAS "THAT EITHER AN AWARD OF CONTRACT COVERING ALL WORK REQUIRED UNDER SCHEDULES I, II, AND III BE MADE TO DE WITT OR IF SUCH AN AWARD IS NOT TO BE MADE TO DEWITT THEN IT IS URGED THAT DEWITT BE PERMITTED TO WITHDRAW ITS BID." THE ATTORNEY FURTHER CONTENDED THAT BECAUSE THE INTENDED BID PRICES ARE THOSE IN THE BID ORIGINALLY SUBMITTED BY DE WITT AND BECAUSE THE COVER LETTER, WHICH IS ALSO A PART OF THE BID, NOTES THE ALL-OR-NONE QUALIFICATIONS WITH WHICH THE ALLEGATION OF MISTAKE IS CONCERNED, THE EXISTENCE OF AN ERROR AND OF THE INTENDED BID PRICES IS CLEARLY ESTABLISHED FROM THE BID AND THEREFORE CORRECTION MAY BE ALLOWED EVEN IF THE DISPLACEMENT OF ANOTHER LOW BID SHOULD OCCUR THEREBY. IT WAS ALSO STATED THAT THE FACT THAT THE DE WITT BIDS ON AREAS II AND III OF SCHEDULE III WERE OUT OF LINE WITH THE PRICES SUBMITTED BY THE OTHER BIDDERS SHOULD HAVE PLACED THE CONTRACTING OFFICER ON NOTICE AS TO THE ALL -OR-NONE ERROR.

WE ARE UNABLE TO CONCUR WITH YOUR CONTENTIONS. EVEN IF THE CONTRACTING OFFICER SHOULD HAVE BEEN PLACED ON NOTICE AS TO THE POSSIBILITY OF ERROR IN THE DE WITT BID BY THE LOWNESS OF THE DE WITT PRICES FOR AREAS II AND III OF SCHEDULE III, THIS FACT COULD EQUALLY POINT TO A MISTAKE HAVING BEEN MADE BY THE BIDDER IN THE COMPUTATION OF ITS BID PRICES ON THOSE ITEMS. THAT THE ERROR OCCURRED IN DESIGNATING THE ALL-OR-NONE PORTION OF THE BID IS, IN OUR OPINION, NOT ASCERTAINABLE FROM THE BID DOCUMENTS. RATHER, THE NATURE OF THE ERROR IS PROVEN ONLY BY RESORTING TO EXTRINSIC EVIDENCE. CONSEQUENTLY, SINCE CORRECTION WOULD DISPLACE THE LOW BIDDER ON SCHEDULE I, UNDER ASPR 2 406.3(A)(3), WE BELIEVE THAT CORRECTION WAS PROPERLY DISALLOWED. FURTHER, INASMUCH AS THE EXTRINSIC EVIDENCE SHOWED THAT ALL-OR-NONE BIDS WERE NOT INTENDED AS TO EACH SCHEDULE INDIVIDUALLY, IT IS PROPER THAT THE DE WITT BID BE WITHDRAWN. ALTHOUGH AN AWARD TO DE WITT FOR THE THREE SCHEDULES ON AN ALL-OR-NONE BASIS WOULD BE PECUNIARILY ADVANTAGEOUS TO THE GOVERNMENT, OUR OFFICE HAS HELD THAT, WHERE THE CORRECTION WOULD RESULT IN DISPLACEMENT OF ONE OR MORE BIDDERS, THE INTEREST OF THE GOVERNMENT IN PRESERVING AND MAINTAINING THE COMPETITIVE BIDDING SYSTEM REQUIRES THAT THE RIGHTS OF OTHER BIDDERS BE CONSIDERED AS CALLING FOR DENIAL OF THE CORRECTION, EXCEPT WHERE IT CAN BE ASCERTAINED SUBSTANTIALLY FROM THE INVITATION AND BID ITSELF. 37 COMP. GEN. 210(1957); B-166523, AUGUST 5, 1969; AND B-169986, JUNE 18, 1970.

ACCORDINGLY, THE PROTEST IS DENIED.