B-183380, JUN 23, 1975

B-183380, JUN 23, 1975

ALTHOUGH CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF POSSIBILITY OF ERROR IN LOW BID BECAUSE OF GREAT DISPARITY WITH ONLY OTHER BID AND PRIOR YEAR'S CONTRACT PRICE, AND SHOULD HAVE VERIFIED BID, INCREASE IN CONTRACT PRICE WHICH WOULD CORRECT ERROR, BY RECALCULATION BASED UPON FACTORS NOT CONSIDERED IN ORIGINAL BID IS NOT ALLOWED. CONTRACT MAY BE RESCINDED AND PAYMENT ON A QUANTUM MERUIT BASIS ALLOWED FOR REASONABLE VALUE OF SERVICES PERFORMED.

ACE WINDOW CLEANING CO.:

SOLICITATION NO. 556-45-75 WAS ISSUED BY THE VETERANS ADMINISTRATION (VA) FOR WASHING AND CLEANING THE EXTERIOR SURFACES OF 1,229 WINDOWS ON EACH OF TWO OCCASIONS AT ITS DOWNEY, ILLINOIS, HOSPITAL. ACE WINDOW CLEANING CO. (ACE) SUBMITTED A LOW AGGREGATE BID OF $2,300 AND WAS AWARDED CONTRACT V556P-1498. THE ONLY OTHER BID RECEIVED FOR BOTH CLEANINGS WAS $7,964.

ABOUT 1 MONTH AFTER AWARD, ACE VERBALLY ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE AN ERROR IN ITS BID PRICE. ACE EXPLAINED THAT ITS ORIGINAL BID WAS BASED ON ITS ABILITY TO CLEAN THE EXTERIOR SURFACES OF 20 WINDOWS PER HOUR BY CROSSING FROM WINDOW TO WINDOW OUTSIDE THE BUILDING. HOWEVER, DUE TO THE TYPE OF WINDOWS EXISTING AT THE HOSPITAL, EACH WINDOW MUST BE EXITED AND REENTERED FOR CLEANING AND EACH WINDOW MUST BE CRANKED OPEN AND CLOSED TWO TIMES DURING THE CLEANING. THIS METHOD REQUIRES A MAN INSIDE THE BUILDING TO ASSIST TWO MEN WHO DO THE ACTUAL CLEANING. ACE CALCULATES THAT, THEREFORE, IT CAN CLEAN ONLY 10 OR 11, RATHER THAN 20, WINDOWS PER HOUR.

IN REQUESTING OUR DECISION ON THIS MATTER, THE DIRECTOR, SUPPLY SERVICE, VA, RECOMMENDS THAT ACE BE ALLOWED AN INCREASE IN CONTRACT PRICE TO $4,400 WHICH ACE CALCULATES AS THE CORRECT PRICE FOR THE TWO CLEANINGS. THE RECOMMENDATION IS BASED ON THE FACT THAT, PRIOR TO AWARD, THE CONTRACTING OFFICER SHOULD HAVE, BUT FAILED, TO VERIFY THE LOW BID OF ACE BECAUSE OF THE DIFFERENCE BETWEEN THE TWO BIDS, PARTICULARLY SINCE THE LAST CONTRACT PRICE FOR EXTERIOR AND INTERIOR WINDOW WASHING FOR FISCAL YEAR 1973 WAS $10,122.

AS A GENERAL RULE, IF A BIDDER MAKES A UNILATERAL MISTAKE IN ITS BID, THE BIDDER IS BOUND BY THE CONTRACT AWARDED UNLESS THE CONTRACTING OFFICER KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF MISTAKE AT THE TIME OF AWARD. 49 COMP. GEN. 199 (1969); VETERANS ADMINISTRATION REQUEST FOR DECISION, B-180882, APRIL 25, 1974. AFTER REVIEWING THE RECORD, WE CONCUR WITH THE DIRECTOR THAT A MISTAKE DID OCCUR AND THAT THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR BECAUSE OF THE GREAT DISPARITY BETWEEN ACE'S BID AND THE ONLY OTHER BID, AND THE LAST CONTRACT WHICH INDICATED THAT THE PRICE FOR EXTERIOR CLEANING ALONE WOULD BE AT LEAST $5,000. CONSEQUENTLY, THE CONTRACTING OFFICER SHOULD HAVE REQUESTED VERIFICATION OF THE LOW ACE BID BEFORE ACCEPTING IT. IN THESE CIRCUMSTANCES, THE ACCEPTANCE OF THE BID DID NOT CONSUMMATE A VALID AND BINDING CONTRACT. B-176002, JUNE 7, 1972; B-172645, MAY 12, 1971.

HOWEVER, CORRECTION OF ACE'S ERROR BY INCREASING THE CONTRACT PRICE, AS RECOMMENDED BY THE DIRECTOR, CANNOT BE ALLOWED. THIS IS SO BECAUSE ACE DOES NOT SEEK TO AMEND THE BID TO INCLUDE A PREVIOUSLY CALCULATED ITEM INADVERTENTLY OMITTED FROM THE ORIGINAL BID. RATHER, IT SEEKS TO RECALCULATE THE BID PRICE BASED UPON FACTORS NOT CONSIDERED IN SUBMITTING THE ORIGINAL BID. 17 COMP. GEN. 575, 577 (1938); B-174620, FEBRUARY 2, 1972; B-177330, JANUARY 2, 1973. NEVERTHELESS, AS THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF THE POSSIBILITY OF ERROR AND FAILED TO SEEK VERIFICATION OF ACE'S BID, THE CONTRACT MAY BE RESCINDED. VETERANS ADMINISTRATION REQUEST FOR DECISION, SUPRA. SINCE ACE HAS PERFORMED ONE OF THE WINDOW CLEANINGS, IT MAY BE PAID ON A QUANTUM MERUIT BASIS FOR THE REASONABLE VALUE OF THE SERVICES RENDERED. 53 COMP. GEN. 368 (1973); UBIQUE LTD., B-180610, AUGUST 12, 1974.