TITLE:  Thorner Press, Inc., B-283500, December 2, 1999
BNUMBER:  B-283500
DATE:  December 2, 1999
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Thorner Press, Inc., B-283500, December 2, 1999

Decision

                    Matter of:Thorner Press, Inc.

File:B-283500

Date:December 2, 1999

Anthony W. Hawks, Esq., for the protester.

Thomas Kelly, Esq., Government Printing Office, for the agency.

Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Bid cannot be corrected where price schedule contained a handwritten
notation that materially lowered the quantity covered by the unit price and
thus price bid was for significantly lower quantity than called for by
invitation for bids.

DECISION

Thorner Press, Inc. protests the rejection of its apparent low bid as
nonresponsive under invitation for bids (IFB) No. C887-S, issued by the
Government Printing Office (GPO) for production of the Recovery Times
Newsletter for the Federal Emergency Management Agency (FEMA).

We deny the protest.

Bidders were required to submit unit prices for various line items of work
associated with printing, binding, packing, storage and distribution of
estimated quantities of the newsletters, which are published by FEMA to
provide citizens with information and directions on where to get help in the
event of an emergency or natural disaster. Among the work requirements
listed as "Additional Operations" is "gathering." IFB at 12 (line item
III(b)). Under this requirement, the contractor must gather for mailing
multiple newsletters in varying sets of 2 to 12 or more for approximately
500 to 50,000 potential disaster relief applicants. IFB at 6.

In the Schedule of Prices section (pages 11 and 12 of the IFB), bidders were
to insert unit prices for required line items. The Determination of Award
section (page 10 of the IFB) contained the estimated quantity for each line
item. The solicitation advised that the low bidder would be determined by
multiplying the unit prices by the estimated quantities listed in the IFB,
and adding these figures to determine a total bid price. IFB at 10.

As initially issued, the IFB stated that the unit for purposes of pricing
"gathering" was the order; that is, item III(b) of page 12 listed "per
order" before the blank for the bidder?s price for that line item. The IFB
initially listed 20 as the estimated quantity for gathering; in combination
with page 12?s definition of the relevant pricing unit, this meant that, as
initially issued, the IFB estimated that there would be 20 orders of
gathering and requested a per-order price.

Amendment No. 1 made various changes to the solicitation. As relevant to
this protest, bidders were instructed as follows:

          on page 10, under SECTION 4. - SCHEDULE OF PRICES delete the
          figure in line item III. (b) 20 and change it to III. (b) 1,000
          [and] on page 12, under III. ADDITIONAL OPERATIONS, under line
          item III. (b), delete ?per order? and insert ?per 1,000
          newsletters.?

Agency Report, exh. 3, IFB amend. 1.

The agency subsequently issued a second amendment that stated, in relevant
part:

          on page 10, under SECTION 4. - SCHEDULE OF PRICES delete the
          figure in line item III. (b) 1,000 and change it to III. (b) 100.

          Note: Figure in line item III. (b) previously was changed from 20
          to 1,000 by Amendment No. 1. . . . REMAINDER OF SPECIFICATIONS
          SAME.

Agency Report, exh. 4, IFB amend. 2. [1]

The effect of the two amendments was to change the pricing unit for
gathering to "per 1,000 newsletters" and to change the estimated quantity
for gathering to 100 units. At 1,000 newsletters per pricing unit, that
meant that the agency anticipated gathering 100,000 newsletters (100 times
1,000 newsletters).

Two bids were received by the July 29, 1999, amended bid opening date.
Thorner was the low bidder with a total price of $732,242.50; McDonald &
Eudy Printers, Inc. offered $927,684. Thorner submitted the standard GPO
Form 910 on which the firm acknowledged all amendments and a price schedule
(pages 11-13 of the IFB). Agency Report, exh. 6, Bid of Thorner Press. The
next day, the agency received a facsimile from Thorner in which the firm
acknowledged its "complete understanding of referenced Program
specifications" and confirmed its pricing as submitted. Agency Report, exh.
8.

Upon review of Thorner?s bid, the contracting officer noted that under line
item III(b) on page 12 of the price schedule, for which Thorner bid $125.00,
the firm had crossed out the word "order" in the phrase "per order" and
inserted the following: "100 Amend. #2." The contracting officer concluded
that the protester?s insertion of the words "100 Amend. #2" altered the
requirement set forth in amendment No. 1 for pricing the gathering of
newsletters by quantities of 1,000. In fact, as explained above, the agency
had intended amendment No. 2 to change the solicitation quantity estimates
for line item III(b) on page 10, not the size of the unit being priced on
page 12. Because of the protester?s handwritten notation changing the unit,
for pricing purposes, from 1,000 to 100, the agency rejected Thorner?s bid
as nonresponsive and awarded the contract to McDonald & Eudy Printers.
Agency Report, exh. 10, Memorandum from Chief, Term Contracts Section C, to
Contract Review Board (Aug. 2, 1999). Following the denial of an
agency-level protest, Thorner filed the instant protest in our Office.

Initially, Thorner protested that the solicitation, as twice amended, was
ambiguous and the agency therefore was required to cancel the IFB and
resolicit its needs. In its comments on the agency?s report, the protester
has withdrawn this protest ground because it concedes that this protest
ground challenged a patent ambiguity in the IFB and was therefore untimely
raised after award. Protester?s Comments at 1. However, although the matter
was untimely raised, we would be remiss in not acknowledging that both
amendments were confusing in referencing the "Schedule of Prices" section
when the agency intended the "Determination of Award" provision.
Nonetheless, we must decide the case on the basis of the amended
solicitation.

As an alternative to its untimely challenge to the ambiguity in the
solicitation, the protester contends that the agency impermissibly rejected
its bid as nonresponsive on the "mistaken belief by the Contracting Officer
that Thorner Press had attempted to change Amendment No. 2 by altering a
specification on ?Page 12 of 13? of the solicitation from a stated
requirement that the ?ADDITIONAL OPERATION? of ?Gathering? was to be
performed in packages of ?per 1,000 newsletters? to a modified requirement
of packages ?per 100 newsletters.?" Protester?s Comments at 2. The protester
asserts that its handwritten notation on line item III(b) of the price
schedule was an apparent mistake and the agency should have utilized the
procedures governing mistake in bids rather than determine its bid was
nonresponsive. [2] Protest at 4.

To support its mistake claim, Thorner submitted an affidavit from its
estimator in which she states that "[t]o ensure the responsiveness" of the
bid, she acknowledged amendment No. 2 "both on the first page of the [bid]
and on ?Page 12 of 13? of the Solicitation." Protester?s Comments, exh. 1,
Affidavit of Christine A. Nardello, Oct. 5, 1999, para. 4, at 1. The estimator
further attests as follows:

          In acknowledging Amendment No. 2 on ?Page 12 of 13?, I crossed-out
          the word ?order? and substituted the phrase ?100 Amend #2? because
          I understood Amendment #2 to require that the ?ADDITIONAL
          OPERATION? of ?Gathering? was to be performed in packages of ?per
          100 newsletters? rather than the ?per 1000 newsletters? packages
          previously required under Amendment No. 1.

Id. para. 5, at 2.

The authority to permit correction of mistakes in bids may not be used to
make nonresponsive bids responsive by post-bid opening explanation or
correction. See DeLancey Printing, B-277698, Nov. 12, 1997, 97-2 CPD para. 139
at 2; Trio Graphics, Inc., B-253471, Aug. 27, 1993, 93-2 CPD para. 139 at 2-4.
The record shows that, while Thorner acknowledged both amendments, its
$125.00 bid for line item III(b) did not price gathering per 1,000
newsletters, the quantity specified as the unit for pricing purposes.
Instead, based on the handwritten alteration, Thorner?s bid covered
gathering per 100 newsletters. Because it altered the size of the unit being
priced, Thorner?s bid was properly found nonresponsive.

Even if, as Thorner contends, the agency should have given the firm an
opportunity to request correction of the alleged mistake, there would be no
basis to grant a correction request here, since there is no clarity about
Thorner?s intended bid price (or, more precisely, the intended size of the
unit being priced). Indeed, even when arguing that its bid contained an
error, Thorner has not clearly stated what its intended bid was. In its
submissions to our Office, Thorner has argued both that it intended for its
$125.00 price for line item III(b) to cover the gathering of 100 newsletters
(which appears to be the position taken in the above quotation from the
estimator) and for that same $125.00 price to cover the gathering of
1,000 newsletters (which appears to be the position taken on page 2 of
Thorner?s comments). Without an unambiguous claim from the firm about what
its intended bid was (much less evidence supporting the claim), there would
be no possible basis to grant a bid correction request. What the protester
is seeking is simply not a correction as contemplated under the mistake
procedures. Printing Procurement Regulation, GPO Publication 305.3 (Rev.
5-99), Chap. XII, section 6(3)(a), (b); see Modern Microfilm Methods, Inc.,
B-219677, Aug. 29, 1985, 85-2 CPD para. 250 at 1.

The protest is denied.

Comptroller General
of the United States

Notes

1. In both amendments, the reference to section 4 ("Schedule of Prices") was
erroneous; the page 10 provision referred to was actually the quantity
estimate in section 3 ("Determination of Award").

2. Although it has no impact here, we note that GPO, as a legislative branch
agency, is not subject to the Federal Acquisition Regulation (FAR), but
instead follows its own Printing Procurement Regulations in conducting its
procurements.