B-164584, OCT. 4, 1968

B-164584, OCT. 4, 1968

TO DYNAMIC ENTERPRISES, INC:

REFERENCE IS MADE TO YOUR TELEGRAM OF JUNE 15, 1968, AND SUBSEQUENT CORRESPONDENCE IN WHICH YOU PROTESTED AGAINST THE AWARD OF A CONTRACT TO QUALITY MAINTENANCE, INC., UNDER INVITATION FOR BIDS (IFB) NO. DABC09-68-B -0175, ISSUED BY FORT BENNING, GEORGIA, ON MAY 8, 1968, FOR THE PROCUREMENT OF NON-PERSONAL KITCHEN POLICE SERVICES. BIDS WERE RECEIVED FROM 10 OF 49 COMPANIES SOLICITED. QUALITY MAINTENANCE CORPORATION, THE APPARENT LOW BIDDER, LISTED A PROMPT PAYMENT DISCOUNT OF .025 PERCENT ON PAGE ONE OF THE BID FORM AND IN A LETTER ACCOMPANYING ITS OFFER; HOWEVER, WITHIN THE BIDDING SCHEDULES AND IN THE SUBJECT LETTER, THE BIDDER LISTED A DISCOUNT RATE OF .025 PERCENT, BUT CALCULATED THE DOLLAR AMOUNT OF ITS DISCOUNT ON THE BASIS OF 2.5 PERCENT. THE CONTRACTING OFFICER THEREFORE CONSIDERED THE LISTING OF A .025 PERCENT DISCOUNT ON THE FIRST SHEET OF THE BID, INSTEAD OF 2.5 PERCENT, AS AN APPARENT CLERICAL ERROR WITHIN THE MEANING OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.2, QUOTED AS FOLLOWS:

"PROCUREMENT BY FORMAL ADVERTISING

"2-406.2 APPARENT CLERICAL MISTAKES. ANY CLERICAL MISTAKE APPARENT ON THE FACT OF A BID MAY BE CORRECTED BY THE CONTRACTING OFFICER PRIOR TO AWARD, IF THE CONTRACTING OFFICER HAS FIRST OBTAINED FROM THE BIDDER WRITTEN OR TELEGRAPHIC VERIFICATION OF THE BID ACTUALLY INTENDED. EXAMPLES OF SUCH APPARENT MISTAKES ARE: OBVIOUS ERROR IN PLACING DECIMAL POINT; OBVIOUS DISCOUNT ERRORS (FOR EXAMPLE--- 1 PERCENT 10 DAYS, 2 PERCENT 20 DAYS, 5 PERCENT 30 DAYS); OBVIOUS REVERSAL OF THE PRICE F.O.B. DESTINATION AND THE PRICE F.O.B. FACTORY; OBVIOUS ERROR IN DESIGNATION OF UNIT. CORRECTION OF THE BID WILL BE EFFECTED BY ATTACHING THE VERIFICATION TO THE ORIGINAL BID AND A COPY OF THE VERIFICATION TO THE DUPLICATE BID. CORRECTION WILL NOT BE MADE ON THE FACE OF THE BID; HOWEVER, IT SHALL BE REFLECTED IN THE AWARD DOCUMENT. AFTER OBTAINING VERIFICATION OF A 2.5 PERCENT DISCOUNT FROM QUALITY MAINTENANCE CORPORATION AND NOTIFYING OUR OFFICE OF AN INTENT TO CONSUMMATE AN AWARD PRIOR TO OUR RESOLUTION OF YOUR PROTEST THE PROCURING ACTIVITY AWARDED CONTRACT NO. DABC09-68-D-C-770 ON JUNE 19, 1968, TO THE CORPORATION, WHICH WAS THE LOWEST BIDDER UNDER THE REFERENCED IFB ONLY IF THE DISCOUNT WAS ALLOWED AT 2.5 PERCENT AND NOT .025 PERCENT.

TO INVOKE THE AUTHORITY CONTAINED IN ASPR 2-406.2, THE CLERICAL MISTAKE SOUGHT TO BE CORRECTED MUST BE OBVIOUS ON THE FACE OF THE BID; THAT IS, THE CONTRACTING OFFICER, WITHOUT BENEFIT OF ADVICE FROM THE BIDDER, MUST BE ABLE TO ASCERTAIN THE INTENDED BID. 46 COMP. GEN. 77. YOU MAINTAIN THAT THE MISTAKE INVOLVED HERE COULD NOT BE REMEDIED UNDER THE ABOVE CITED ASPR PROVISION SINCE THE STIPULATION COVERS ONLY TYPOGRAPHICAL ERRORS, BUT EVEN IF THE SECTION SHOULD BE CONSTRUED AS GOVERNING THE INSTANT CASE THE INTENDED DISCOUNT WAS NOT ASCERTAINABLE FROM THE FACE OF THE BID.

BY REFERRING TO CLERICAL INSTEAD OF TYPOGRAPHICAL ERRORS WE BELIEVE THE ABOVE CITED ASPR PROVISION IS CLEARLY INTENDED TO COVER MISTAKES INVOLVING HANDWRITTEN ENTRIES AS HERE. 45 COMP. GEN. 682.

REGARDING YOUR CONTENTION THAT QUALITY'S BID DOES NOT REVEAL WHETHER A DISCOUNT OF 2.5 PERCENT WAS ACTUALLY INTENDED, THE AIR FORCE MAINTAINS THAT CALCULATION OF ALL DOLLAR AMOUNTS OF DISCOUNTS AT 2.5 PERCENT IN BOTH THE SCHEDULE AND THE LETTER ACCOMPANYING THE BID, TOGETHER WITH THE APPARENT CONVERSION OF THE FIGURES 2.5 TO .025 ON THE BIDDING SCHEDULES, CLEARLY DEMONSTRATES THAT QUALITY INTENDED A DISCOUNT OF 2.5 PERCENT. CONCUR IN THIS JUDGMENT. ON THE FIRST PAGE OF THE INVITATION (STANDARD FORM 33) ALL BIDDERS AGREED THAT THEY WOULD FURNISH THE REQUESTED ITEMS "AT THE PRICE SET OPPOSITE EACH ITEM.' WHILE QUALITY DID NOT INSERT THE CALCULATED DISCOUNTS AFTER THE PRICE OF EACH INDIVIDUAL ITEM, THE DOLLAR AMOUNTS OF DISCOUNTS, CALCULATED AT 2.5 PERCENT, AND THE NET DISCOUNTED PRICES, WERE INSERTED UNDER THE AGGREGATE OF THE ITEM PRICES FOR EACH OF SCHEDULES I, II, AND III. WE BELIEVE THAT THIS EVIDENCE CLEARLY ESTABLISHES THE BIDDER'S INTENTION TO FURNISH THE ITEMS AT THIS DISCOUNT RATE, NOTWITHSTANDING HIS LISTING OF A .025 PERCENT DISCOUNT AT OTHER PLACES IN HIS BID, AND THAT ACCEPTANCE OF THE BID AS TO ANY SCHEDULE WOULD HAVE BOUND THE BIDDER TO ACCEPT PAYMENTS AT THE 2.5 PERCENT DISCOUNT RATE. SINCE BOTH THE MISTAKE AND THE INTENDED DISCOUNT WERE ASCERTAINABLE FROM THE BID ITSELF, DISPLACEMENT OF YOUR COMPANY, WHICH WOULD OTHERWISE BE THE LOWEST BIDDER,WAS PROPER. B-162740, JANUARY 17, 1968.

YOU FURTHER CONTEND THAT THE CONTRACTING OFFICER IMPROPERLY AWARDED THE SUBJECT CONTRACT ON JUNE 19, 1968, PRIOR TO THE RESOLUTION OF YOUR PROTEST BY OUR OFFICE. IN A MEMO DATED JUNE 17, 1968, THE CONTRACTING OFFICER FOUND THAT AN AWARD COULD NOT BE WITHHELD UNTIL YOUR PROTEST WAS RESOLVED BECAUSE THERE WAS NO PROVISION IN THE THEN EXISTING CONTRACT WITH YOUR COMPANY WHICH WOULD PERMIT ITS EXTENSION PAST JUNE 30, 1968, AND THAT POSTPONING AN AWARD UNDER THESE CIRCUMSTANCES WOULD HAVE DELAYED THE FURNISHING OF THE REQUIRED SERVICES. CONSIDERING THESE FACTORS, WE CANNOT CONSIDER THE DECISION TO AWARD AS IMPROPER.

AS TO YOUR CONTENTION THAT THE AWARD WAS CONSUMMATED WITHOUT PROPER AUTHORIZATION, THE DEPARTMENT'S REPORT INDICATES THAT THE CONTRACTING OFFICER OBTAINED APPROVAL FROM THIRD ARMY HEADQUARTERS WHICH NOTIFIED THE GENERAL ACCOUNTING OFFICE OF THE ABOVE DETERMINATION PRIOR TO AWARD, THUS CONFORMING TO THE DEMANDS OF ASPR 2-407.9 (B) (2), QUOTED AS FOLLOWS:

"/2) WHERE A PROTEST HAS BEEN RECEIVED BEFORE AWARD, THE VIEWS OF THE OFFICE OF THE COMPTROLLER GENERAL REGARDING THE PROTEST SHOULD BE OBTAINED BEFORE AWARD WHENEVER SUCH ACTION IS CONSIDERED TO BE DESIRABLE. WHERE IT IS KNOWN THAT A PROTEST AGAINST THE MAKING OF AN AWARD HAS BEEN LODGED DIRECTLY WITH THE COMPTROLLER GENERAL, A DETERMINATION TO MAKE AWARD UNDER (3) BELOW MUST BE APPROVED AT AN APPROPRIATE LEVEL ABOVE THAT OF THE CONTRACTING OFFICER, IN ACCORDANCE WITH DEPARTMENTAL PROCEDURES. WHILE AWARD NEED NOT BE WITHHELD PENDING FINAL DISPOSITION BY THE COMPTROLLER GENERAL OF A PROTEST, A NOTICE OF INTENT TO MAKE AWARD IN SUCH CIRCUMSTANCES SHALL BE FURNISHED THE COMPTROLLER GENERAL, AND FORMAL OR INFORMAL ADVICE SHOULD BE OBTAINED CONCERNING THE CURRENT STATUS OF THE CASE PRIOR TO MAKING THE AWARD.