B-145954, JUL. 6, 1961
Highlights
NOTWITHSTANDING A CLAUSE IN THE BID FORM STATES THAT MISTAKES IN BID WITHIN CERTAIN PERCENTAGES OF THE OVER-ALL BID ARE WAIVED AND THE ERROR ALLEGED FALLS WITHIN THE PERCENTAGE LIMITATION. - A POINT WHICH IT IS NOT NECESSARY TO RULE UPON AT THIS TIME. THE PRICE WHICH WAS INTENDED AND WOULD HAVE BEEN SUBMITTED IN THE ABSENCE OF ERROR. 35 COMP. EVEN IF THESE ERRORS WERE CONCEDED TO HAVE OCCURRED. THE PAPERS SUBMITTED BY THE BIDDER SHOW THAT BEFORE THE FIGURES FOR VARIOUS ITEMS ON THE WORKSHEETS WERE TRANSPOSED TO A RECAPITULATION SHEET THEY WERE ROUNDED OFF AND AFTER BEING TRANSPOSED WERE REDUCED IN AMOUNTS OF $1. IT IS DIFFICULT TO CONCLUDE WITH ANY DEGREE OF CERTAINTY TO WHAT EXTENT THE BIDDER WOULD HAVE RELIED UPON THE AMOUNTS IT NOW SEEKS TO HAVE INCLUDED IN ITS BID PRICE.
B-145954, JUL. 6, 1961
TO ALFRED BURKA, ESQUIRE:
IN LETTER OF MAY 18, 1961, AS ATTORNEY FOR COMMUNITY BUILDERS, INC., YOU ALLEGED THAT THE FIRM MADE AN ERROR IN THE BID SUBMITTED IN RESPONSE TO INVITATION ENG-18-020-61-22 AND REQUESTED THAT IT BE CORRECTED PRIOR TO ANY AWARD BEING MADE UNDER THE INVITATION, NOTWITHSTANDING A CLAUSE IN THE BID FORM STATES THAT MISTAKES IN BID WITHIN CERTAIN PERCENTAGES OF THE OVER-ALL BID ARE WAIVED AND THE ERROR ALLEGED FALLS WITHIN THE PERCENTAGE LIMITATION.
AFTER AN EXAMINATION OF THE DATA SUBMITTED IN SUPPORT OF THE ALLEGATION OF ERROR AND THE CORRECTION OF THE BID, WE CONCLUDE THAT EVEN IF THE WAIVER CLAUSE WOULD NOT BE CONTROLLING--- A POINT WHICH IT IS NOT NECESSARY TO RULE UPON AT THIS TIME--- THE EVIDENCE DOES NOT AFFORD AN ADEQUATE BASIS FOR THE CORRECTION OF THE BID.
TO JUSTIFY CORRECTION OF A BID, THE BIDDER MUST ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THE ERROR, THE MANNER IN WHICH IT OCCURRED, AND THE PRICE WHICH WAS INTENDED AND WOULD HAVE BEEN SUBMITTED IN THE ABSENCE OF ERROR. 35 COMP. GEN. 279.
IT HAS BEEN ALLEGED THAT THE ERROR OCCURRED IN FAILING TO INCLUDE IN THE BID PRICE A TOTAL OF $51,578 TO COVER THE COST OF CERTAIN CONTRIBUTIONS REQUIRED TO BE MADE TO FEDERAL AND STATE AUTHORITIES ON LABOR EMPLOYED UNDER THE CONTRACT, AND A TOTAL OF $40,223.97 OVERLOOKED IN CARRYING TOTALS FORWARD FROM WORKSHEETS TO A MASTER SHEET BEFORE PREPARING THE BID FORM. HOWEVER, EVEN IF THESE ERRORS WERE CONCEDED TO HAVE OCCURRED, AN IMPORTANT ELEMENT IN THE RULE PERMITTING CORRECTION HAS NOT BEEN SATISFIED, I.E., THE REQUIREMENT THAT THE INTENDED BID BE CONVINCINGLY ESTABLISHED.
THE PAPERS SUBMITTED BY THE BIDDER SHOW THAT BEFORE THE FIGURES FOR VARIOUS ITEMS ON THE WORKSHEETS WERE TRANSPOSED TO A RECAPITULATION SHEET THEY WERE ROUNDED OFF AND AFTER BEING TRANSPOSED WERE REDUCED IN AMOUNTS OF $1,000, $2,000, $4,000, $5,000 AND $10,000 BEFORE BEING USED IN THE PREPARATION OF THE BID FORM.
IN VIEW OF THE ROUNDING OUT OF FIGURES AND THE GROSS DEDUCTIONS TAKEN ON VARIOUS ITEMS AT THE TIME THE BIDDER PREPARED ITS BID, IT IS DIFFICULT TO CONCLUDE WITH ANY DEGREE OF CERTAINTY TO WHAT EXTENT THE BIDDER WOULD HAVE RELIED UPON THE AMOUNTS IT NOW SEEKS TO HAVE INCLUDED IN ITS BID PRICE.
THEREFORE, WHILE THE EVIDENCE SUBMITTED MAY BE SUFFICIENT TO ESTABLISH AN ERROR IN BID, IT WOULD BE INSUFFICIENT TO SUPPORT CORRECTION OF THE BID.