B-167676, MARCH 17, 1970, 49 COMP. GEN. 588

B-167676, MARCH 17, 1970, 49 COMP. GEN. 588

BIDS -- UNBALANCED -- MISTAKE-IN-BID RELIEF UNDER AN INVITATION FOR THE PROCUREMENT OF INTRA-CITY OR INTRA-AREA TRANSPORTATION SERVICES THAT WAS DIVIDED INTO FOUR SCHEDULES CONSISTING OF VARIOUS SERVICE ITEMS AND ZONES IN WHICH THE SERVICES WERE TO BE PERFORMED, AND THAT PROVIDED FOR AWARD UNDER EACH ZONE OF EACH SCHEDULE TO THE LOW BIDDER ON ANY SCHEDULE BID ON WHO OFFERED UNIT PRICES ON ALL ITEMS, A CONTRACTOR RECEIVING A PARTIAL AWARD UNDER EACH SCHEDULE WHO ALLEGES FINANCIAL LOSS BECAUSE ITS BID WAS BALANCED IN ANTICIPATION THAT AWARD WOULD BE MADE ON AN ENTIRE SCHEDULE, AND BECAUSE ITS ITEM PRICES WERE COMPUTED ON THE BASIS THE TOTAL PRICE FOR A SCHEDULE WOULD BE COMPETITIVE, IS NOT ENTITLED TO RELIEF ON A MISTAKE-IN-BID THEORY AS NOTHING ON THE FACE OF THE BID PLACED THE CONTRACTING OFFICER ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR.

TO EASTERN VAN LINES, MARCH 17, 1970:

REFERENCE IS MADE TO THE LETTER OF AUGUST 8, 1969, WITH ENCLOSURES, FROM EASTERN VAN LINES (EASTERN) AND THE CORRESPONDENCE FROM YOUR FIRM DATED SEPTEMBER 11, SEPTEMBER 22 AND OCTOBER 23, 1969, IN CONNECTION WITH EASTERN'S REQUEST FOR RELIEF UNDER CONTRACT NO. F19617-69-C-0188, WITH WESTOVER AIR FORCE BASE, MASSACHUSETTS. THE CONTRACT WAS AWARDED ON JANUARY 27, 1969, AND WAS SCHEDULED TO END ON DECEMBER 31, 1969.

THE FACTS SURROUNDING THIS REQUEST ARE AS FOLLOWS. ON NOVEMBER 12, 1968, THE BASE PROCUREMENT DIVISION AT WESTOVER ISSUED SOLICITATION NO. F19617- 69-B-0020 FOR PREPARATION OF PERSONAL PROPERTY FOR SHIPMENT, GOVERNMENT STORAGE, AND PERFORMING INTRA-CITY OR INTRA-AREA MOVEMENT. THE PROCUREMENT WAS "SMALL BUSINESS RESTRICTED ADVERTISING" UNDER AUTHORITY OF 10 U.S.C. 2304(A)(1) AND ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1- 706.2.

THE SOLICITATION WAS DIVIDED INTO SCHEDULES I, II, III, AND IV. THE SERVICES WERE DESCRIBED UNDER VARIOUS ITEMS WITHIN THE SCHEDULES AND ALSO THERE WAS A LISTING OF THE ZONES IN WHICH THE SERVICES WERE TO BE PERFORMED.

SCHEDULE I WAS FOR "OUTBOUND SERVICES" AND UNDER THIS SCHEDULE PRICES WERE REQUESTED ON ITEMS NO. 1 THROUGH 8. ITEMS 9 AND 10 WERE ALSO LISTED UNDER THIS SCHEDULE BUT BOTH OF THESE ITEMS WERE RESERVED AND NO BIDS WERE REQUESTED ON THESE TWO ITEMS. THE TYPES OF SERVICES TO BE PROVIDED UNDER ITEM NO. 1 OF SCHEDULE I INCLUDED, AMONG OTHERS, PREMOVE SURVEY, SERVICING OF APPLIANCES, DISASSEMBLY OF FURNITURE IF REQUIRED, PRELIMINARY PACKING, TAGGING, WRAPPING, AND ZONES I THROUGH XI WERE LISTED UNDER THIS ITEM. ITEM NO. 2 UNDER SCHEDULE I WAS FOR OUTBOUND SERVICES (FROM NON-TEMPORARY STORAGE) AND THE SERVICES UNDER THIS ITEM WERE SIMILAR TO ITEM NO. 1 WITH CERTAIN LISTED EXCEPTIONS. ITEM NO. 2 WAS DIVIDED INTO "PICKUP BY CONTRACTOR" AND "DELIVERED TO CONTRACTOR" AND ELEVEN ZONES WERE LISTED UNDER EACH OF THESE CATEGORIES. THERE WERE NO REQUIREMENTS FOR CERTAIN OF THE ZONES LISTED UNDER ITEM NO. 2. ITEM NO. 3, SCHEDULE I, WAS FOR "COMPLETE SERVICE-OUTBOUND-(OVERFLOW ARTICLES OR SHIPMENTS REQUIRING OTHER THAN TYPE II OR III CONTAINERS)." REQUIREMENTS UNDER ITEM NO. 3 WERE STATED FOR ELEVEN ZONES EACH UNDER "OVERSEAS PACK" "(1) OVERFLOW ARTICLES" AND "(2) OTHER SHIPMENTS" AND ELEVEN ZONES EACH UNDER "DOMESTIC PACK" FOR "OVERFLOW ARTICLES" AND "OTHER SHIPMENTS." ITEM NO. 4 UNDER SCHEDULE NO. I WAS FOR "STORAGE" AND REQUIREMENTS WERE LISTED FOR ELEVEN ZONES UNDER THIS ITEM. ITEM NO. 5 FOR "DRAYAGE" INCLUDED REQUIREMENTS FOR TWO OF THE ELEVEN ZONES LISTED. NO REQUIREMENTS WERE LISTED UNDER ITEM NO. 6. ITEM NO. 7 CALLED FOR TYPE II CONTAINERS AND INCLUDED REQUIREMENTS FOR ELEVEN ZONES. ITEM NO. 8 FOR "RECOOPERAGE/REMARKING SERVICE" INCLUDED REQUIREMENTS FOR FOUR OF THE ELEVEN ZONES LISTED.

THE COMPOSITION UNDER SCHEDULE II FOR "INBOUND SERVICES" WAS SIMILAR TO THE COMPOSITION OF SCHEDULE I, AND ITEM NOS. 11 THROUGH 16 WITH VARIOUS REQUIREMENTS FOR ZONES I THROUGH XI WERE LISTED UNDER THIS SCHEDULE.

SCHEDULE III FOR "UNACCOMPANIED BAGGAGE SERVICE" INCLUDED ITEMS NOS. 17, 18, 19, 19.1, 19.2, 19.3 AND 20 WITH VARIOUS REQUIREMENTS FOR THE ZONES LISTED UNDER THOSE ITEMS.

SCHEDULE IV INCLUDED ITEM NO. 21 FOR "COMPLETE SERVICE FOR INTRA-CITY AND INTRA-AREA MOVEMENTS" AND THERE WAS A REQUIREMENT FOR ONE ZONE UNDER THIS ITEM.

AT THE END OF SCHEDULES I, II, AND III, RECAPITULATION TOTALS WERE TO BE INSERTED BY THE BIDDERS. THE LAST COLUMN IN EACH RECAPITULATION WAS ENTITLED "SCHEDULE TOTAL FOR ZONE." IN THIS COLUMN THERE WAS TO BE INSERTED A TOTAL PRICE FOR EACH OF THE INDIVIDUAL ZONES UNDER A SCHEDULE BASED ON THE PRICES QUOTED FOR THE INDIVIDUAL ZONES AS REQUIREMENTS FOR SUCH ZONE APPEARED UNDER ANY OF THE ITEMS DESCRIBED IN THAT PARTICULAR SCHEDULE. BIDDERS WERE NOT REQUESTED TO INSERT A TOTAL PRICE FOR AN ENTIRE SCHEDULE.

CLAUSE SP 10 UNDER THE SPECIAL PROVISIONS ON PAGE 30 OF THE SOLICITATION PROVIDED AS FOLLOWS:

AWARD SHALL BE MADE TO THE LOW BIDDER UNDER EACH SCHEDULE FOR EACH ZONE LISTED. THE GOVERNMENT RESERVES THE RIGHT TO AWARD ADDITIONAL CONTRACTS, AS A RESULT OF THIS SOLICITATION, TO THE EXTENT NECESSARY TO MEET ITS ESTIMATED MAXIMUM REQUIREMENTS. TO BE ELIGIBLE FOR AN AWARD, A BIDDER MUST OFFER UNIT PRICES FOR ALL ITEMS UNDER ANY SCHEDULE BID ON. FAILURE TO DO SO SHALL BE CAUSE FOR REJECTION OF THE BID FOR THAT SCHEDULE. ALSO, BIDDERS FAILING TO GUARANTEE DAILY CAPABILITIES IN THE SPACE PROVIDED IN THIS INVITATION FOR BIDS SHALL BE CONSIDERED NOT RESPONSIVE AND INELIGIBLE FOR AWARD. ANY BID WHICH STIPULATES MINIMUM CHARGES OR GRADUATED PRICES FOR ANY OR ALL ITEMS SHALL BE REJECTED FOR THAT SCHEDULE. THE ABOVE PROVISION APPEARED IN SECTION 22-603-7 OF DEFENSE PROCUREMENT CIRCULAR NO. 64, DATED OCTOBER 28, 1968. THE PROVISION PRESENTLY APPEARS IN ASPR 7- 1603.7. THE FOLLOWING PROVISION ENTITLED "AWARD INFORMATION" WAS INSERTED BY THE GOVERNMENT ON THE LAST "CONTINUATION SHEET," PAGE 25 OF 37: AWARD INFORMATION

SEE SPECIAL PROVISION 10, ENTITLED "AWARD." THIS PROVISION IS FURTHER AMPLIFIED TO INSURE THAT AN OFFEROR MUST OFFER UNIT PRICES FOR ALL ITEMS HAVING AN ESTIMATED ANNUAL QUANTITY INDICATED WITHIN A SCHEDULE FOR THE ZONE OR ZONES SELECTED.

EASTERN RECEIVED PARTIAL AWARDS BASED ON ITS CAPABILITIES FOR TEN OF THE ELEVEN ZONES UNDER SCHEDULE I, BUT DID NOT RECEIVE AN AWARD FOR ZONE VII. UNDER SCHEDULE II, EASTERN DID NOT RECEIVE AWARDS FOR ZONES III, IV, VII. PARTIAL AWARDS WERE MADE TO EASTERN FOR THE OTHER EIGHT ZONES UNDER SCHEDULE II BASED ON THE CONTRACTOR'S CAPABILITIES. UNDER SCHEDULE III, EASTERN DID NOT RECEIVE AN AWARD FOR ZONES III AND IV. PARTIAL AWARDS WERE MADE TO IT BASED ON ITS CAPABILITIES FOR THE OTHER NINE ZONES LISTED UNDER SCHEDULE III. EASTERN WAS NOT THE LOW BIDDER FOR THOSE ZONES ON WHICH IT DID NOT RECEIVE AN AWARD.

THE LETTER OF AUGUST 8, 1969, FROM EASTERN ADVISES THAT ITS BID WAS BALANCED IN ANTICIPATION THAT AWARD WOULD BE MADE ON THE BASIS OF THE ENTIRE SCHEDULE AND THAT IN COMPUTING ITS PRICE PER ITEM, THE PRICE WAS COMPUTED ON THE BASIS THAT THE TOTAL PRICE FOR THE SCHEDULE WOULD BE COMPETITIVE. EASTERN'S REQUEST FOR IMMEDIATE RELEASE IS BASED ON THE FOLLOWING CONTENTIONS IN ITS LETTER OF AUGUST 8, 1969:

(A) UNAUTHORIZED DEVIATION FROM STANDARD DOD CONTRACT PROVISIONS AS PUBLISHED BY HIGHER AUTHORITY AND AGREED TO BY THE AIR FORCE.

(B) TWO CONFLICTING BID PROVISIONS IN THE SAME INVITATION WHICH WAS MISLEADING TO EASTERN VAN LINES.

(C) ADMINISTRATIVE ERROR OF THE AIR FORCE IN ORIGINALLY DENYING EASTERN'S OBVIOUSLY VALID PROTEST ON 10 DECEMBER 1968.

IN ADDITION, EASTERN HAS ADVISED THAT IT HAS RELUCTANTLY PERFORMED THE CONTRACT AND THAT A SERIOUS FINANCIAL LOSS HAS BEEN INCURRED. THE LETTER OF AUGUST 8, POINTS OUT THAT IN PRIOR SIMILAR PROCUREMENTS AWARDS WERE MADE BY ENTIRE SCHEDULES RATHER THAN ZONES.

PARAGRAPH (A) OF THE ABOVE CONTENTIONS REFERS TO A LETTER DATED NOVEMBER 20, 1968, ISSUED BY THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS) HEADQUARTERS, DEPARTMENT OF THE ARMY, FOR GUIDANCE IN IMPLEMENTING ASPR PROVISIONS RELATING TO CONTRACTS FOR SHIPMENT OF PERSONAL PROPERTY. PARAGRAPH 2 OF THE LETTER OF NOVEMBER 20, 1968, STATES IN PART AS FOLLOWS:

2. PROCEDURES FOR USE OF THE CONTRACT

A. THE CONTRACT FORMAT AS CONTAINED IN ITEM XI, DEFENSE PROCUREMENT CIRCULAR 64, 28 OCTOBER 1968, WILL BE USED FOR PROCUREMENT OF ALL SERVICES DESCRIBED THEREIN. DEVIATIONS IN THE FORMAT OTHER THAN MODIFICATIONS PERMITTED BY PROVISIONS OF PARAGRAPH 22-603 WILL NOT BE AUTHORIZED. PROVISIONS IN ASPR 1-109.2 ARE NOT APPLICABLE WHEN A CONTRACT WILL BE AWARDED FOR SERVICES TO MULTIPLE MILITARY DEPARTMENTS. (DEPARTMENTAL PROCUREMENT STAFFS CONCUR IN THIS PROVISION).

PARAGRAPH (B) OF EASTERN'S QUOTED CONTENTIONS REFERS TO A TELEGRAM DATED DECEMBER 10, 1968, IN WHICH EASTERN PROTESTED AGAINST THE AWARD TO ANY OTHER BIDDER ON THE BASIS THAT ONLY EASTERN'S BID WAS IN COMPLIANCE WITH THE REQUIREMENTS OF THE SOLICITATION. THE CONTRACTING OFFICER RECOMMENDED THAT EASTERN'S PROTEST SHOULD BE DENIED AND THAT AWARD SHOULD BE MADE TO THE LOW RESPONSIVE OFFEROR FOR EACH ZONE FOR EACH OF THE SCHEDULES.

A LETTER DATED AUGUST 29, 1969, FROM HEADQUARTERS, STRATEGIC AIR COMMAND TO AIR FORCE HEADQUARTERS IN WASHINGTON, A COPY OF WHICH WAS FORWARDED TO YOUR FIRM, STATES AS FOLLOWS:

2. THE CORRESPONDENCE CLEARLY SUPPORTS THAT PERSONNEL RESPONSIBLE FOR THIS PROCUREMENT MADE IT ABUNDANTLY CLEAR TO ALL PROSPECTIVE BIDDERS THE BASIS ON WHICH THE GOVERNMENT INTENDED TO MAKE AWARDS UNDER SOLICITATION F19617-69-B-0020. FURTHER, WE DO NOT NOTE ANY MATERIAL DEVIATIONS FROM THE FORMAT REQUIRED BY DPC 64 AS ALLEGED BY THE CONTRACTOR. HOWEVER, THE SUPPLEMENTAL INFORMATION CONCERNING AWARDS) LISTED AT THE END OF THE BID SCHEDULE AND WHICH WAS SPECIFICALLY BROUGHT TO THE ATTENTION OF ALL PROSPECTIVE BIDDERS DURING A PRE-BID CONFERENCE SHOULD BE NOTED. SHOULD ALSO BE NOTED THAT MR. LESLIE MOORE, SR., REPRESENTING EASTERN VAN LINES, INC., PARTICIPATED IN THE PRE-BID CONFERENCE *** .

PARAGRAPH 3 OF THE CONTRACTING OFFICER'S REPORT ON EASTERN'S PROTEST OF DECEMBER 10, 1968, A COPY OF WHICH WAS ALSO FURNISHED TO YOUR FIRM, STATES AS FOLLOWS:

3. IN APPLYING THE GUIDELINES OF ASPR 22-601.2, ZONES OF PERFORMANCE AS CONTAINED IN DPC 64, WHICH RELATED TO DETERMINING THE NUMBER OF ZONES AND BOUNDARIES THEREOF, CONSIDERATION WAS GIVEN TO TOTAL VOLUME, SIZE OF OVERALL AREA INCLUDED IN THE SOLICITATION, AND THE CAPACITY OF PROSPECTIVE BIDDERS. THE USE OF COUNTIES AS ZONES WAS DETERMINED TO BE THE MOST SUITABLE METHOD OF DIVISION AS EACH COUNTY IS A CLEARLY DEFINED AREA AND IS EASILY ASCERTAINABLE. THE AREA OF COVERAGE FOR THIS SOLICITATION INCLUDES FOUR COUNTIES IN WESTERN MASSACHUSETTS, BERKSHIRE, FRANKLIN, HAMPDEN AND HAMPSHIRE, AND SEVEN COUNTIES IN CONNECTICUT, HARTFORD, LITCHFIELD, MIDDLESEX, NEW HAVEN, NEW LONDON, TOLLAND AND WINDHAM. CONSIDERING THE SIZE OF THE OVERALL AREA TO BE INCLUDED IN THE SOLICITATION AND THE CAPACITY OF PROSPECTIVE BIDDERS, THE USE OF ZONES WOULD PERMIT THE PARTICIPATION OF ALL PROSPECTIVE BIDDERS WITHOUT ANY POSSIBLE DISCRIMINATION BECAUSE OF CAPACITY.

5. AT A PRE-BID CONFERENCE HELD IN THE BASE PROCUREMENT DIVISION ON 21 NOVEMBER 1968, ALL PROSPECTIVE BIDDERS PRESENT WERE ADVISED THAT THEY COULD SELECT THE ZONE OR ZONES THEY DESIRED, BUT THAT ONCE A ZONE WAS SELECTED ALL ITEMS WITHIN THAT SCHEDULE FOR THAT ZONE MUST HAVE UNIT PRICES OFFERED. A REPRESENTATIVE FROM EASTERN VAN LINES WAS PRESENT AT THE CONFERENCE BUT ASKED NO QUESTIONS WHATSOEVER CONCERNING THIS MATTER.

A MEMORANDUM OF A "PRE-BID" CONFERENCE DATED NOVEMBER 23, 1968, STATES IN PART AS FOLLOWS:

*** EMPHASIS WAS PLACED ON THE AMPLIFICATION OF THE AWARD PROVISION TO INSURE THAT ALL WERE AWARE OF THE OPPORTUNITY TO SELECT ONE OR MORE ZONES, BUT TO INSURE THAT ONCE A ZONE OR ZONES WAS OR WERE SELECTED, UNIT PRICES WERE OFFERED FOR ALL ITEMS WITHIN A SCHEDULE FOR THE ZONE OR ZONES SELECTED. *** BASED ON THE ABOVE RECORD IT IS AIR FORCE'S POSITION THAT EASTERN WAS AWARE, PRIOR TO SUBMITTING ITS BID, OF THE BASIS ON WHICH THE AWARD WOULD BE MADE.

THE THREE PROCUREMENTS REFERRED TO IN EASTERN'S LETTER OF AUGUST 8, 1969, ARE IDENTIFIED AS CONTRACT NO. N00298-69-D-3064, EFFECTIVE JANUARY 20, 1969, AWARDED BY THE UNITED STATES NAVAL SUPPLY CENTER, PURCHASE DEPARTMENT, NEWPORT, RHODE ISLAND; CONTRACT NO. N00298-69-D 5487, EFFECTIVE DATE JANUARY 2, 1969, ALSO WITH THE UNITED STATES NAVAL SUPPLY CENTER AT NEWPORT AND CONTRACT NO. F19603-C-0115 AWARDED BY THE BASE PROCUREMENT OFFICE, OTIS AIR FORCE BASE, MASSACHUSETTS.

BIDS UNDER THE INSTANT INVITATION WERE OPENED ON DECEMBER 5, 1968; EASTERN'S BID TO THE INSTANT PROCUREMENT WAS THEREFORE OPENED PRIOR TO THE TIME THAT AWARDS WERE MADE FOR THE ABOVE PROCUREMENTS. WE MENTION THIS TO INDICATE THAT WHAT HAPPENED IN THE ABOVE PROCUREMENTS DOES NOT CONCLUSIVELY ESTABLISH THAT EASTERN WAS MISLED INTO THINKING THAT THE AWARDS UNDER THE INSTANT SOLICITATION WOULD BE MADE BY ENTIRE SCHEDULES. THE ABOVE PROCUREMENTS WERE FAR MORE LIMITED WITH RESPECT TO THE NUMBER OF ZONES FOR WHICH BIDS WERE SOLICITED. FOR EXAMPLE, ONLY TWO ZONES WERE LISTED IN EACH OF THE ABOVE SOLICITATIONS. WE HAVE BEEN ADVISED THAT AT LEAST IN THE CASE OF OTIS AIR FORCE BASE, ALL OF THE OFFERORS HAD AUTHORITY TO OPERATE IN ALL OF THE ZONES LISTED IN THAT PROCUREMENT, WHICH WAS NOT NECESSARILY THE SITUATION IN THE WESTOVER PROCUREMENT. ALSO THE "AWARD INFORMATION" PROVISION WHICH AMPLIFIED SP-10 WAS NOT INCLUDED IN THE ABOVE PROCUREMENTS. IT IS OUR VIEW THAT WHAT TRANSPIRED IN PRIOR SOLICITATIONS FOR SIMILAR SERVICES WOULD NOT BE CONTROLLING WITH REGARD TO THE INTERPRETATION OF THE AWARD PROVISIONS OF THE PRESENT SOLICITATION.

THE LETTER OF OCTOBER 23, 1969, FROM COUNSEL FOR EASTERN INDICATES AGREEMENT THAT WESTOVER MADE AN ORAL EXPLANATION AT A "PRE-BID" CONFERENCE REGARDING THE BASIS FOR AWARDS; HOWEVER, IT IS URGED THAT THIS ORAL EXPLANATION CANNOT BE CONSIDERED IN VIEW OF PARAGRAPH 3 OF STANDARD FORM 33A WHICH WAS INCORPORATED BY REFERENCE INTO THE SOLICITATION. THIS PARAGRAPH AS QUOTED IN COUNSEL'S LETTER PROVIDES IN PART AS FOLLOWS: " *** ORAL EXPLANATION OR INSTRUCTIONS GIVEN BEFORE THE AWARD OF THE CONTRACT WILL NOT BE BINDING. ANY INFORMATION GIVEN TO A PROSPECTIVE OFFEROR CONCERNING A SOLICITATION WILL BE FURNISHED TO ALL PROSPECTIVE OFFERORS AS AN AMENDMENT OF THE SOLICITATION, IF SUCH INFORMATION IS NECESSARY TO OFFERORS IN SUBMITTING OFFERS ON THE SOLICITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED OFFERORS." COUNSEL FOR EASTERN CONTENDS THAT WHAT WAS SAID BY THE PROCURING ACTIVITY AT THE "PRE- BID" CONFERENCE WAS INCONSISTENT WITH THE TERMS OF THE SOLICITATION. THE KEY SENTENCES IN SP-10, AWARD, SEEM TO BE:

AWARD SHALL BE MADE TO THE LOW BIDDER UNDER EACH SCHEDULE FOR EACH ZONE LISTED. *** TO BE ELIGIBLE FOR AN AWARD, A BIDDER MUST OFFER UNIT PRICES FOR ALL ITEMS UNDER ANY SCHEDULE BID ON. AS INDICATED THE ABOVE PROVISION WAS FURTHER AMPLIFIED BY THE "AWARD INFORMATION" PROVISION. APPARENTLY ALL OF THE OTHER BIDDERS UNDERSTOOD THE AWARD PROVISIONS IN THIS PROCUREMENT, AND IN THIS REGARD THE LETTER OF SEPTEMBER 22, 1969, FROM EASTERN'S COUNSEL, INDICATES THAT NONE OF THE OTHER BIDDERS SUBMITTED A BID ON THE SAME BASIS AS THE BID FROM EASTERN. THE MEMORANDUM DATED NOVEMBER 23, 1969, REGARDING THE "PRE BID" CONFERENCE STATES THAT THE PURPOSE OF THE CONFERENCE WAS TO GIVE PROSPECTIVE OFFERORS THE OPPORTUNITY TO HAVE A CLEAR UNDERSTANDING OF THE TECHNICAL REQUIREMENTS AND THE TERMS FOR SUBMITTING OFFERS. WE FIND THAT THE EXPLANATIONS GIVEN AT THE "PRE- BID" CONFERENCE WERE CONSISTENT WITH THE REQUIREMENTS OF SP-10, "AWARD," AS AMPLIFIED BY THE "AWARD INFORMATION" PROVISION; CONSEQUENTLY, THE "PRE- BID" DISCUSSIONS WERE NOT PRECLUDED BY PARAGRAPH 3 OF STANDARD FORM 33A. CF. ASPR 2 207.

WITH RESPECT TO THE CONTENTION THAT THE AWARDS TO EASTERN WERE CONTRARY TO ARMY'S LETTER OF GUIDANCE DATED NOVEMBER 20, 1968, WE DO NOT FIND THAT THE AWARD PROVISIONS WERE INCONSISTENT WITH ANY ASPR PROVISIONS. CONSEQUENTLY, EVEN CONCEDING THE APPLICABILITY OF ARMY'S LETTER TO THIS PROCUREMENT, WE DO NOT FIND THAT THE PROCURING ACTIVITY'S ACTION IN THIS CASE WAS INCONSISTENT WITH THE GUIDELINES SET FORTH IN PARAGRAPH 2A OF THAT LETTER.

WHILE NOT SPECIFICALLY RAISED BY EASTERN, WE WILL CONSIDER WHETHER EASTERN IS ENTITLED TO RELIEF ON A MISTAKE-IN-BID THEORY. EASTERN'S TELEGRAM OF PROTEST DATED DECEMBER 10, 1968, TO THE PROCURING ACTIVITY, WHICH WAS SENT PRIOR TO AWARD, STATED AS FOLLOWS:

HEREBY PROTESTS ANY AWARD TO OTHER THAN EASTERN VAN LINES UNDER

INVITATION F 19617-69-B-0020 DUE TO NON-RESPONSIVENESS OF OTHER

BIDDERS TO SP10 WHICH REQUIRES A BIDDER MUST OFFER UNIT PRICES FOR

ALL ITEMS UNDER ANY SCHEDULED BID TO BE ELIGIBLE FOR AWARD. EASTERN

IS THE ONLY BIDDER IN COMPLIANCE WITH THIS PROVISION OF THE INVITATION. REQUEST WITHHOLDING OF OTHER AWARDS PENDING DECISION, HIGHER AUTHORITY. BY LETTER OF JANUARY 13, 1969, WESTOVER AIR FORCE BASE ADVISED EASTERN THAT ITS PROTEST WAS DENIED AND A LETTER DATED JANUARY 7, 1969, FROM HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WAS ENCLOSED WHICH GAVE THE REASONS FOR THE DENIAL OF THE PROTEST.

THERE IS NOTHING IN THE ABOVE TELEGRAM WHICH WOULD INDICATE THAT THE PRICES IN EASTERN'S BID DID NOT ACCURATELY REFLECT WHAT EASTERN INTENDED TO BID. AN EXAMINATION OF THE FACE OF EASTERN'S BID DOES NOT SHOW THAT THE PRICES QUOTED THEREIN ARE OTHER THAN WHAT WAS INTENDED BY THE BIDDER. NO OTHER CONCLUSION IS JUSTIFIED UPON REVIEW OF THE ABSTRACT OF BIDS. THE FACT THAT EASTERN WAS THE ONLY BIDDER TO QUOTE A PRICE FOR ALL THE ZONES WITHIN A SCHEDULE WOULD NOT ESTABLISH THAT THE QUOTED PRICES WERE NOT THE PRICES INTENDED. IT WAS NOT UNTIL AUGUST 8, 1969, WHEN RELIEF WAS REQUESTED FROM OUR OFFICE, THAT EASTERN FIRST ALLEGED THAT ITS PRICES FOR THE VARIOUS ZONES WERE BALANCED IN ANTICIPATION OF RECEIVING THE AWARD FOR AN ENTIRE SCHEDULE.

THE RECORD IN THIS CASE MIGHT AT BEST SUPPORT AN ARGUMENT THAT EASTERN MADE A UNILATERAL ERROR IN COMPUTING ITS BID PRICES ON THE BASIS OF RECEIVING THE AWARD FOR AN ENTIRE SCHEDULE RATHER THAN INDIVIDUAL ZONES. HOWEVER, SINCE IT CANNOT BE SAID THAT THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR IN EASTERN'S BID, THE AWARD TO EASTERN RESULTED IN A BINDING CONTRACT AND THE CONTRACTOR MUST BEAR THE CONSEQUENCES OF HIS OWN ERROR. SEE OGDEN & DOUGHERTY V U.S., 102 CT. CL. 249 (1944); SALIGMAN V U.S., 56 F. SUPP. 505 (1944). SEE ALSO B- 166543, JULY 16, 1969, AND CASES CITED THEREIN.

IN A RECENT CASE, ANTHONY RUGGIERO, ET AL. V THE UNITED STATES, 190 CT. CL. 327, THE COURT CONSIDERED A CLAIM REPRESENTING PART OF A DEPOSIT MADE ON A BID FOR THE SALE OF CERTAIN PARCELS OF GOVERNMENT LAND. THE INVITATION INCLUDED A BID FORM WHICH PROVIDED SPACES FOR SEPARATE BIDS ON SOME OR ALL OF THE INDIVIDUAL PARCELS ADVERTISED AND A DIFFERENT SPACE FOR THE SUBMISSION OF A BID ON ANY GROUP OF PARCELS (TO BE DESIGNATED BY THE BIDDER); BIDS COULD ALSO BE SUBMITTED FOR THE ENTIRE AREA. THE PLAINTIFFS WERE INTERESTED IN BIDDING ON THREE CONTIGUOUS PARCELS AS A GROUP. PLAINTIFFS SUBMITTED SEPARATE BIDS ON EIGHT OF THE VARIOUS PARCELS DESCRIBED IN THE INVITATION INCLUDING THE THREE PARCELS ON WHICH PLAINTIFFS INTENDED TO SUBMIT A GROUP BID. THESE THREE PARCELS WERE AT ISSUE IN THE CASE. PLAINTIFFS DID NOT FILL IN THE BLANK PROVIDED IN THE BID FORM FOR GROUP BIDS. THE INVITATION INCLUDED A TELEPHONE NUMBER FOR BIDDERS TO CALL WITH QUESTIONS ON THE SALE. THE COURT ACCEPTED PLAINTIFFS' CONTENTION THAT PRIOR TO BID OPENING THEY CALLED THIS NUMBER TO ADVISE THE CONTRACTING OFFICER THAT A GROUP BID ON THE THREE PARCELS WAS INTENDED AND THE COURT FOUND THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN AWARE OF THE CALL. AFTER BID OPENING BUT PRIOR TO AWARD PLAINTIFFS ADVISED THE CONTRACTING OFFICER BY LETTER THAT A CLERICAL MISTAKE HAD BEEN MADE AND THAT THEY HAD INTENDED TO SUBMIT A GROUP BID ON THE THREE PARCELS. SUBSEQUENTLY THE CONTRACTING OFFICER FORMALLY ACCEPTED PLAINTIFFS' BID ON TWO OF THE THREE CONTIGUOUS PARCELS AND REJECTED THE BID ON THE THIRD PARCEL. THE DIFFERENCE BETWEEN THE PRICES IN THE REJECTED BID AND THE NEXT HIGH BID FOR THAT PARCEL WAS FAIRLY SUBSTANTIAL. IN ADDITION, ACCESS TO ONE OF THE TWO PARCELS AWARDED COULD REASONABLY BE OBTAINED ONLY THROUGH THE THIRD PARCEL.

WITH RESPECT TO THE TWO ACCEPTED BIDS, THE CONTRACTING OFFICER DEMANDED AN ADDITIONAL REMITTANCE TO COVER THE REMAINDER OF THE DOWN PAYMENTS REQUIRED UNDER THE TERMS OF THE INVITATION. WHEN PLAINTIFFS FAILED TO FURNISH THE REQUIRED DOWN PAYMENTS, THE CONTRACTING OFFICER FORFEITED PLAINTIFFS' DEPOSITS ON THE TWO ACCEPTED PARCELS. THE SUIT WAS TO RECOVER THESE DEPOSITS.

THE COURT HELD FIRST THAT PLAINTIFFS' ORAL ADVICE COULD NOT BE CONSIDERED AS A MODIFICATION OF ITS BID. AFTER DISPOSING OF THE MODIFICATION ISSUE, THE COURT TURNED TO THE ISSUE OF MISTAKE. AFTER AN ANALYSIS OF CERTAIN OF THE CASES IN THE AREA, THE COURT STATED THAT THE SOLE QUESTION WAS WHETHER THE PLAINTIFFS' BID WAS SUBMITTED IN THE MISTAKEN BELIEF THAT THIS WAS THE WAY TO BID FOR THESE THREE PARCELS AS A GROUP AND NOT INDIVIDUALLY, AND WHETHER THE CONTRACTING OFFICER ACCEPTED TWO OF THE BIDS ALTHOUGH HE KNEW OR SHOULD HAVE KNOWN THEY WERE MISTAKEN.

IN CONCLUDING THAT THE BID WAS MISTAKEN AND THAT THE CONTRACTING OFFICER SHOULD HAVE KNOWN OF THE MISTAKE, THE COURT NOTED THAT PRIOR TO BID OPENING PLAINTIFFS CALLED THE NUMBER DESIGNATED IN THE INVITATION FOR THE OBVIOUS PURPOSE OF ADVISING THE CONTRACTING OFFICER THAT A MISTAKE HAD BEEN MADE; THAT PRIOR TO AWARD THE CONTRACTING OFFICER WAS SPECIFICALLY ADVISED BY THE PLAINTIFFS THAT A MISTAKE HAD BEEN MADE AND THAT THERE WAS A SUBSTANTIAL DISCREPANCY BETWEEN PLAINTIFFS' BID AND THE NEXT HIGH BID FOR THE ONE CONTIGUOUS PARCEL FOR WHICH PLAINTIFFS' BID WAS REJECTED.

THE SUBSTANCE OF EASTERN'S TELEGRAM OF DECEMBER 10, 1968, WAS TO PROTEST AGAINST THE AWARD OF A CONTRACT FOR CERTAIN ZONES TO OTHER CONCERNS AND THERE WAS NOTHING IN THIS TELEGRAM TO INDICATE THAT EASTERN'S PRICES WOULD HAVE BEEN DIFFERENT IF IT DID NOT RECEIVE THE AWARDS FOR THOSE ZONES WHICH THE PROCURING ACTIVITY PROPOSED TO AWARD TO OTHER CONCERNS. UPON DENIAL OF ITS PROTEST AND PRIOR TO AWARD, EASTERN COULD HAVE ADVISED THE PROCURING ACTIVITY THAT IN VIEW OF THE GOVERNMENT'S INTERPRETATION OF THE AWARD PROVISIONS, THE PRICES QUOTED IN ITS BID WERE NOT ACTUALLY THE PRICES INTENDED; HOWEVER, NO SUCH ADVICE WAS EVER GIVEN TO THE PROCURING ACTIVITY. INSTEAD, EASTERN UNDERTOOK TO PERFORM WITHOUT PROTEST.

IN THE RUGGIERO CASE THERE WAS NOTHING ON THE FACE OF THE BID WHICH INDICATED THAT A MISTAKE HAD BEEN MADE, BUT IT WAS FOUND THAT PRIOR TO BID OPENING AND TO AWARD THE BIDDER COMMUNICATED WITH THE CONTRACTING OFFICER OR HIS REPRESENTATIVE FOR THE PURPOSE OF POINTING OUT THE BIDDERS' INTENTION. THE INSTANT CASE ALSO CONCERNS A SITUATION WHERE THERE WAS NOTHING ON THE FACE OF THE BID TO SHOW THAT A MISTAKE HAD BEEN MADE; HOWEVER, THERE WAS NO COMMUNICATION, EITHER PRIOR TO BID OPENING OR TO AWARD, WITH THE CONTRACTING OFFICER OR HIS REPRESENTATIVE REGARDING THE POSSIBILITY OF A MISTAKE IN EASTERN'S BID. MOREOVER, THE BID ABSTRACT FOR THE INSTANT PROCUREMENT DOES NOT SHOW SUCH SUBSTANTIAL DISCREPANCIES BETWEEN THE PRICES IN EASTERN'S BID AND THE PRICES IN THE OTHER BIDS TO PUT THE CONTRACTING OFFICER ON NOTICE OF A MISTAKE IN EASTERN'S BID. THE CIRCUMSTANCES WE FIND THAT THE RUGGIERO CASE WOULD NOT BE APPLICABLE HERE.

FOR THESE REASONS EASTERN'S REQUEST FOR RELIEF IS DENIED.