B-153651, APR. 2, 1964

B-153651, APR. 2, 1964

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED MARCH 16, 1964, SIGNED BY THE CHIEF, PROCUREMENT OPERATIONS DIVISION, DIRECTORATE, PROCUREMENT POLICY, DCS/S AND L, REQUESTING THE ADVICE OF THIS OFFICE ON THE PROPER DISPOSITION OF A MISTAKE IN BID ALLEGED TO HAVE BEEN MADE BY THEENTWISTLE MANUFACTURING CORPORATION IN CONNECTION WITH INVITATION FOR BIDS NO. 41-608-64-254 ISSUED BY THE SAN ANTONIO AIR MATERIEL AREA, KELLY AIR FORCE BASE, TEXAS.

THE INVITATION WHICH BORE THE DATE OF DECEMBER 12, 1963, SOLICITED BIDS FOR THE MANUFACTURE, DELIVERY, AND INSTALLATION OF AIRCRAFT ARRESTING BARRIER ABSORBERS, TYPE BAK-12/E32A, IN VARIOUS QUANTITY RANGES. BIDS WERE OPENED ON JANUARY 31, 1964, AND A DETERMINATION WAS MADE THAT THE PURCHASE OF 56 UNITS WOULD BEST FULFILL THE REQUIREMENTS OF THE GOVERNMENT. THE UNIT PRICES QUOTED ON THIS QUANTITY COMPARED AS FOLLOWS:

ENTWISTLE MANUFACTURING CORPORATION $25,200.93

AMERICAN MACHINE AND FOUNDRY COMPANY 36,381.00

E. W. BLISS COMPANY 36,875.00

SNOW MFG. CO. 41,130.00

WESTERN GEAR CORP., SYSTEMS MANAGEMENT DIV. 48,591.00

BECAUSE THE ENTWISTLE BID WAS APPROXIMATELY 31 PERCENT LOWER THAN THE NEXT LOWEST BID CONTRACTING PERSONNEL REQUESTED THE COMPANY TO VERIFY ITS PRICES. ENTWISTLE RESPONDED BY LETTER DATED FEBRUARY 4, 1964, ALLEGING THAT SEVERAL ERRORS HAD BEEN MADE IN THE PREPARATION AND COMPUTATION OF ITS BID AND SUBMITTING THE BASIC WORKING PAPERS USED IN THE FORMULATION OF THE BID AS EXHIBITS "A," "B" AND "C.' THE BIDDER ALSO FURNISHED EXHIBITS "D" AND "E," WHICH OUTLINE IN DETAIL AN ACCOUNTING OF THE CONSTRUCTION OF ITS ORIGINAL PRICE, THE MISTAKES, AND THE CORRECTED AMOUNTS. THE MISTAKES, ACCORDING TO ENTWISTLE, RESULTED FROM IMPROPER POSTING OF THE APPROPRIATE UNIT COSTS OR, IN THE MAJORITY OF CASES, FAILURE TO PROPERLY EXTEND UNIT COSTS FOR THOSE ITEMS INVOLVING QUANTITIES OF TWO EACH PER END ITEM, MORE PARTICULARLY COMPONENTS OF THE TWO ARRESTING ENGINES REQUIRED FOR EACH BAK-12/E32A SYSTEM. THE COMPANY REQUESTED PERMISSION TO REVISE ITS UNIT PRICE UPWARD TO $29,523.26.

BY AUTHORITY OF ARMED SERVICES PROCUREMENT REGULATIONS 2-406.3 THE STAFF JUDGE ADVOCATE, HEADQUARTERS AIR FORCE LOGISTICS COMMAND, WRIGHT PATTERSON AIR FORCE BASE, OHIO, DETERMINED THAT THE BIDDER HAD CLEARLY ESTABLISHED THE MAKING OF A MISTAKE IN THE SUBMISSION OF ITS BID BUT HAD NOT PRESENTED CONVINCING EVIDENCE OF THE BID ACTUALLY INTENDED AND WAS ENTITLED, THEREFORE, TO WITHDRAWAL OF ITS BID BUT NOT TO CORRECTION OF THE ERROR.

ORDINARILY A BID SUBMITTED IN RESPONSE TO AN INVITATION ISSUED BY AN AGENCY OF THE FEDERAL GOVERNMENT MAY NOT BE WITHDRAWN OR MODIFIED UNTIL EXPIRATION OF THE TIME SPECIFIED IN THE INVITATION FOR ACCEPTANCE. REFINING ASSOCIATES, INC. V. UNITED STATES, 124 CT.CL. 115; UNITED STATES V. LIPMAN, 122 F.SUPP. 284. A BIDDER WHO, AFTER OPENING AND PRIOR TO AWARD, ALLEGES A MISTAKE IN BID AND ADDUCES CLEAR AND CONVINCING EVIDENCE IN SUPPORT THEREOF, MAY, IF SUCH EVIDENCE ESTABLISHES THE MAKING OF A BONA FIDE ERROR, BE ALLOWED TO WITHDRAW. UNITED STATES V. LIPMAN, SUPRA, P. 288. WE AGREE WITH THE STAFF JUDGE ADVOCATE THAT THE EXHIBITS ESTABLISH THE EXISTENCE OF AN HONEST MISTAKE ON THE PART OF THE BIDDER.

WE AGREE ALSO THAT THE RECORD WOULD NOT SUPPORT A DETERMINATION ALLOWING THE BIDDER TO CORRECT ITS BID TO ACCORD WITH THE REVISED AMOUNTS SHOWN ON EXHIBITS "D" AND "E.' WE HAVE HELD THE DEGREE OF PROOF REQUIRED TO JUSTIFY WITHDRAWAL OF A BID BEFORE AWARD TO BE IN NO WAY COMPARABLE TO THAT NECESSARY TO ALLOW CORRECTION OF AN ERRONEOUS BID. 36 COMP. GEN. 441. THE SCHEDULES PURPORT TO DOCUMENT A MYRIAD OF SMALL ERRORS AND OMISSIONS IN SUCH COMPONENTS OF TOTAL PRICE AS THE ALLOWANCES FOR VARIOUS ITEMS OF PURCHASED AND VARIABLE MATERIALS, REINSTALLATION KITS, TOOLING COSTS, LABOR AND BURDEN, AND EVEN IN THE MARK-UP FOR GENERAL AND ADMINISTRATIVE EXPENSES AND PROFIT. THE EXTENT TO WHICH THE BIDDER WOULD HAVE RELIED UPON THE AMOUNTS IT NOW SEEKS TO HAVE INCLUDED IN ITS BID PRICE BEFORE THE BID WAS SUBMITTED IS DIFFICULT TO CONCLUDE WITH ANY DEGREE OF CERTAINTY. CF. B-145954 DATED JULY 6, 1961. AS IS NOT THE CASE HERE, THE EVIDENCE OF THE BID ORIGINALLY INTENDED MUST ITSELF HAVE BEEN IN EXISTENCE PRIOR TO BID OPENING IN ORDER TO ENTITLE THE BIDDER TO CORRECTION. B-146424 DATED SEPTEMBER 18, 1961. FURTHERMORE THE RULE PERMITTING A BID TO BE CORRECTED UPON THE SUBMISSION OF EVIDENCE ESTABLISHING THAT THE BIDDER INTENDED TO BID AN AMOUNT OTHER THAN THE AMOUNT SET FORTH ON THE FACE OF ITS BID DOES NOT EXTEND TO PERMITTING A BIDDER TO RECALCULATE A NEGLIGENTLY FORMULATED BID TO INCLUDE FACTORS WHICH WERE NOT IN MIND WHEN THE BID WAS PREPARED AND SUBMITTED. 41 COMP. GEN. 289; 17 COMP. GEN. 575, 577.

THE VIEWS HEREIN EXPRESSED ARE IN HARMONY WITH THE POSITION TAKEN BY THE STAFF JUDGE ADVOCATE IN THIS CASE AND HENCE WE BELIEVE HIS DETERMINATION THAT THE BID OF THE ENTWISTLE MANUFACTURING COMPANY SHOULD BE DISREGARDED IN MAKING THE AWARD BUT MAY NOT BE CORRECTED TO CONFORM TO THE REVISED QUOTATION IS CORRECT. BECAUSE OF THE GREAT DIFFERENCE IN COST BETWEEN THE REVISED LOW BID AND THE SECOND LOW RESPONSIVE BID, APPROXIMATING $400,000, WE BELIEVE CONSIDERATION SHOULD BE GIVEN TO READVERTISEMENT OF THE PROCUREMENT.