TITLE:  Connecticut Laminating Company, Inc., B-274949.2, December 13, 1999
BNUMBER:  B-274949.2
DATE:  December 13, 1999
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Connecticut Laminating Company, Inc., B-274949.2, December 13, 1999

Decision

Matter of: Connecticut Laminating Company, Inc.

File: B-274949.2

Date: December 13, 1999

Steven M. Snow for the protester.

Drew Spalding, Esq., Government Printing Office, for the agency.

John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Agency determination to permit bidder to correct a mistake in its low bid
prior to award was proper where the agency reasonably determined that clear
and convincing evidence established the existence of the mistake and the
intended bid price, even though the bidder did not submit workpapers showing
how it prepared its bid but only a declaration explaining how the mistake
was made and the intended bid.

2. Bid which did not include any reference to a bid acceptance period should
be construed to be open for a reasonable period of time and is acceptable
where the solicitation, issued by the Government Printing Office, did not
require any minimum bid acceptance period.

DECISION

Connecticut Laminating Company, Inc. protests the intended award of a
contract to General Binding Corporation (GBC) under solicitation No. B296-S,
issued by the Government Printing Office (GPO). Connecticut Laminating
contends that the bid submitted by GBC in response to the solicitation
should have been rejected by the agency as nonresponsive and that the agency
improperly permitted GBC to make an upward correction to its bid price.

We deny the protest.

The solicitation sought bids for the production and supply of identification
card components. The solicitation included a "schedule of prices," which
contained two line items; one for "cardstock" and another for "laminate
sleeve." Solicitation at 17. Prices were requested for each of these line
items for "makeready and/or setup" and "running per 1,000 copies." Id. The
solicitation informed bidders that in preparing their bids, they were to
complete the schedule of prices by inserting prices or NC (no charge) for
the four items of work requested. Id. The solicitation stated that the
lowest bid would be determined by multiplying the prices offered by the
agency's estimate that during each year of the contract it would order 20
cardstock and 20 laminate sleeve "makeready and/or setup," and 5,000
cardstock and 5,000 laminate sleeve production runs. Id. at 15.

The solicitation's instructions for bid submission required bidders to fill
out the schedule of prices and to submit signed copies of the completed
"Schedule of Prices . . . or copies of the GPO Form 910 ‘Bid' form" to
the agency. Id. at 17. The solicitation package did not, however, include a
Form 910 for the bidders to complete. The solicitation added that bids could
be submitted by facsimile machine, and that bid opening would be at 11 a.m.
on August 23, 1999. Id. at 1.

The agency received three bids by the time set for bid opening. Agency
Report, Tab C, Abstract of Bids. GBC submitted its initial bid, comprised of
a cover sheet identifying the solicitation and a signed and completed bid
schedule, by facsimile that was received by the agency at 10:53 a.m. on
August 23. GBC's bid included entries of "NC" for the makeready or set up
work, and prices of $170 and $200 for the cardstock and laminate sleeve
production run line items, respectively, for a total bid of $1,850,000.
Agency Memorandum of Law, Oct. 28, 1999, at 4; Agency Report, Tab K, GBC
Initial Bid. At 10:59 a.m., the agency received a "revised" bid from GBC,
which differed from GBC's initial bid in that the prices for each of the
production run line items were listed as $17 and $20, for a total bid of
$185,000. Agency Memorandum of Law, Oct. 28, 1999, at 4; Agency Report, Tab
B, GBC's Revised Bid. GBC's bids did not include a Form 910. Connecticut
Laminating's bid, comprised of a completed schedule of prices and Form 910,
totaled $1,899,000, and the third bid totaled $2,100,000. Agency Report, Tab
C, Abstract of Bids.

The agency contacted GBC by telephone on August 25 because it believed that
GBC's revised bid was in error. Agency Report, Tab E, Memorandum from
Contracting Officer to Chairman, Contract Review Board 1 (Sept. 27, 1999).
GBC responded by letter dated August 26, informing the agency that in its
"haste" it had "managed . . . to miscount the decimals the second time
around on our cost to the 1000 piece offer" and that its initial bid price
"is the one that stands." Agency Report, Tab D, Letter from GBC to GPO 1
(Aug. 26, 1999). The letter added by way of explanation that "[s]hortly
after faxing the bid, [GBC] did, however, call [GPO] in the Bid Room,
telling [GPO] about the erroneous revision." Id. The contracting officer
subsequently requested and received a declaration from GBC setting forth in
more detail the sequence of events that led to the mistake in preparing the
revised bid. Agency Report, Tab E, attach., Affidavit of the Preparer of
GBC's Bid. The contracting officer concluded that there was clear and
convincing evidence establishing both the existence of the mistake in GBC's
bid and the bid actually intended, and recommended that GBC be awarded the
contract at its initial and corrected bid price of $1,850,000. Agency
Report, Tab E, Memorandum from Contracting Officer to Chairman, Contract
Review Board 2 (Sept. 27, 1999).

Connecticut Laminating argues that, contrary to GPO's view, "[t]here is no
clear and convincing evidence of a mistake" in GBC's bid, and that the
agency improperly permitted GBC to upwardly correct its revised bid to the
prices set forth in its initial bid and should instead have allowed GBC to
withdraw its bid. Protester's Comments, Oct. 18, 1999, at 6-7.

The GPO, as a legislative branch agency, is not subject to the Federal
Acquisition Regulation (FAR), but follows its Printing Procurement
Regulations in conducting its procurements. Standard Register Co., B-260426,
June 16, 1995, 95-2 CPD para. 120 at 2. The GPO provisions which govern the
correction of pre-award mistakes, however, are virtually identical to the
FAR rules. In this regard, the GPO regulations generally provide that the
contracting officer may grant a bidder's pre-award request to correct a
mistaken bid where "clear and convincing evidence establishes both the
existence of the mistake and the bid actually intended." See Printing
Procurement Regulations, GPO Publication 305.3 (Rev. 5-99), Ch. XII, sect. 6(3).
We treat the question of whether the evidence of the mistake and the bid
intended meets the clear and convincing standard as a question of fact, and
thus will not question an agency's decision in this regard unless it lacks a
reasonable basis. Standard Register Co., supra.

Here, based on the record considered in its entirety, we cannot find the
agency's determination to permit the upward correction of GBC's bid to be
unreasonable.

Specifically, at the time of bid opening, the agency had in hand an initial
bid from GBC of $1,850,000, which was relatively close in price to the other
bids received by the agency, and GBC's "revised" bid of $185,000. Given the
discrepancy between GBC's revised bid and the other bids received, we agree
with the agency's determination that GBC's revised bid appeared to be in
error. In this regard, we also note that shortly after bid opening, GBC
contacted the agency by calling the room at which bid opening was conducted,
and informed the agency that its revised bid was in error.

Next, as explained by GBC and readily discernable by reviewing the bids
themselves, GBC's initial and corrected bids differ from the revised bid
only in that GBC shifted the decimal point in each of its revised prices one
place to the left, thus reducing GBC's bid price by a factor of 10. Given
the sequence of events, including the agency's receipt of an initial bid
reflecting the correct bid prices and GBC's recognition of its mistake and
telephone call to the agency shortly after bid opening, as well as the
relatively obvious nature of the mistake and the intended bid, that is, the
misplacement of a decimal point and the corresponding reduction of the bid
by a factor of 10, and GBC's submission of a declaration explaining its
mistake, we cannot find that the agency acted unreasonably in permitting the
upward correction of GBC's bid. While the decisions of our Office generally
provide that workpapers may constitute clear and convincing evidence, so as
to allow bid correction, if they show the existence of a mistake and the
intended bid, are in good order, and are not contradicted by other evidence,
Standard Register Co., supra, at 2-3, an explanatory letter without
workpapers has also been found to constitute clear and convincing evidence
in appropriate circumstances. [1] Accent Gen., Inc., B-192058, Sept. 21,
1978, 78-2 CPD para. 215 at 5.

Connecticut Laminating also protests that GBC's bid should be rejected by
the agency as nonresponsive because GBC failed to submit a completed GPO
Form 910 with its bid. [2] Connecticut Laminating argues that submission of
the Form 910 is required because it "is the document which binds a bidder to
the certifications on the reverse of the form." Protest at 1.

The solicitation expressly permitted the submission of facsimile bids, and
requested that bidders submitting their bids by facsimile "[r]efer to
Facsimile Bids in Solicitation Provisions of GPO Contract Terms, GPO
Publication 310.2." Solicitation at 1. GPO Publication 310.2, among other
things, sets forth the representations and certifications from the Form 910,
and requests that bidders "[s]tate in [their] facsimile . . . any exception
to the certifications." GPO Publications 310.2 at 5. This provision adds
that the "[s]ubmission of your bid without statement of exception to the
certifications shall constitute certification of the five items" required.
Accordingly, GBC, by submitting a facsimile bid that did not contain any
statement taking exception to the required certifications, is bound to
perform in accordance with the required certifications.

Connecticut Laminating points out that the Form 910 provides for a bid
acceptance period, and argues that because GBC's bid did not include a Form
910 or otherwise provide a bid acceptance period, GBC "could have rescinded
its bid on any day after bid opening" and GBC's bid should therefore be
rejected as nonresponsive. Protester's Supplemental Comments at 2.

The GPO Form 910 includes the following notation regarding the bid's
acceptance period:

[T]he undersigned agrees, if this bid is accepted within _____ calendar days
(60 calendar days unless a different period is inserted by the bidder) from
the dated for receipt of bids, to furnish the specified items at the price
set forth opposite each item, delivered at the designated point(s), in exact
accordance with specifications.

Notice: Failure to provide a 60 day bid acceptance period may result in
expiration of your bid prior to award.

As indicated, the solicitation was unusual in that it did not contain a
mandatory minimum bid acceptance period nor require bidders to agree to a
specific bid acceptance period. Bidders were thus free to offer a period
shorter than the automatic 60-day period stated in the solicitation. Mid
Atlantic Label, Inc., B-234120, Mar. 31, 1989, 89-1 CPD para. 338 at 2. Here,
although GBC's bid did not include a Form 910 or otherwise reference any bid
acceptance period, its bid should be construed to be open for a reasonable
period. International Graphics, Div. of Moore Bus. Forms, Inc. v. United
States, 4 Cl. Ct. 515, 520 n.9 (1984) (interpreting bid containing no
specific bid acceptance period or a Form 910 on a GPO sealed bid
procurement). Thus, GBC's bid remained open for a reasonable period and it
could not rescind its bid on any day after bid opening, and its bid could
not be rejected for failing to include a Form 910.

Connecticut Laminating finally argues that GBC's bid should be rejected
because GBC does not intend to adhere to the subcontracting limitations set
forth in the solicitation, or provide a product that conforms the
solicitation's specifications. Protester's Supplemental Comments, Nov. 1,
1999, at 5-10.

GBC's bid did not take exception to any of the solicitation's requirements.
Whether GBC is able to comply with the subcontracting limitations set forth
in the solicitation or provide a product that conforms to the specifications
is a question bearing on GBC's responsibility. See Chandler Marketing Group,
B-247184, May 11, 1992, 92-1 CPD para. 434 at 3; Lebanon Publishing Co., Inc.,
B-243149, Apr. 24, 1991, 91-1 CPD para. 406 at 2. A determination as to whether
a prospective awardee is responsible is based largely on subjective
judgments, which generally are not susceptible to reasoned review. Thus, we
will not review a contracting officer's affirmative determination of
responsibility absent a showing of fraud or bad faith on the part of
procuring officials, or that definitive responsibility criteria in the
solicitation have not been met. 4 C.F.R. sect. 21.5(c); Lebanon Publishing Co.,
Inc., supra. Here, there are no allegations of fraud or bad faith.
Additionally, whether GBC actually complies with the subcontracting
limitations set forth in the solicitation or provides a product that
conforms to the specifications are matters of contract administration not
for our

review. 4 C.F.R. sect. 21.5(a) (1999); Sonic Dry Clean, Inc., B-275929, Apr. 21,
1997, 97-1 CPD para. 145 at 2 n.1; Jasper Painting Serv., Inc., B-251092, Mar.
4, 1993, 93-1 CPD para. 204 at 6. We therefore will not consider the protester's
arguments here.

The protest is denied.

Comptroller General

of the United States

Notes

1. Connecticut Laminating also contends that GPO provided inappropriate
assistance to GBC when it advised that firm that if it withdrew its revised
bid, its initial bid would not be considered. Protester's Comments at 7 n.5;
Protester's Supplemental Comments, Nov. 1, 1999, at 4-5. We find nothing
improper in this communication.

2. Contrary to Connecticut Laminating contention, this GPO solicitation did
not require the submission of a Form 910, but required the submission of the
schedule of prices "or" a Form 910. Solicitation at 17.