B-175325, AUG 9, 1972

B-175325, AUG 9, 1972

CONTRACT - AMENDMENT OR RECISION - MISTAKE IN BID - NOTICE DECISION REGARDING AN ERROR MADE IN A BID UPON WHICH THE NAVAL AIR ENGINEERING CENTER AWARDED A CONTRACT TO M&M PRECISION SYSTEMS, INC., FOR PARACHUTE DRYERS. SINCE THE PREAWARD SURVEY REPORT CONTAINED INFORMATION THAT M&M WAS SUPPLYING THERMAL BLANKETS UNDER THE "OR EQUAL PROVISION" WHICH HAD BEEN DELETED IN THE IFB, THE CONTRACTING OFFICER WAS ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID AND THUS A VALID AND BINDING CONTRACT WAS NOT CONSUMMATED WHEN HE FAILED TO BRING THE POSSIBILITY TO THE ATTENTION OF M&M. B-169641, APRIL 19, 1971. WHETHER A CONTRACT SHOULD BE AMENDED TO PERMIT A CHANGE IN SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION AND IS NOT WITHIN THE JURISDICTION OF GAO. ACCORDINGLY, THE ONLY RELIEF AUTHORIZED IS CANCELLATION OF THE CONTRACT.

TO M&M PRECISION SYSTEMS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 19, 1972, AND PRIOR CORRESPONDENCE, REGARDING AN ERROR MADE IN YOUR BID UPON WHICH NAVAL AIR ENGINEERING CENTER CONTRACT NO. N00156-72-C-1115 FOR PARACHUTE DRYERS IS BASED.

DRAWING NO. 263AS100D3 LISTED IN THE INVITATION FOR BIDS (IFB) DESIGNATED "THERMAL MGT. OR EQ." INSULATION AND HEAT BLANKETS FOR THE PARACHUTE DRYERS. RELYING UPON THE QUOTED LANGUAGE AND OVERLOOKING THE PROVISION IN THE IFB WHICH DELETED THE "OR EQUAL" TERM, YOU BASED YOUR BID UPON BRISCOE MANUFACTURING COMPANY BLANKETS. AS THE DIFFERENCE BETWEEN YOUR $187,970.04 TOTAL BID AND THE NEXT LOW TOTAL BID WAS ONLY $12,079.90, THE DIFFERENCE DID NOT ALERT THE CONTRACTING OFFICER TO THE POSSIBILITY OF ANY ERROR IN YOUR BID. HOWEVER, PRIOR TO MAKING AN AWARD TO YOUR COMPANY, THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY, THE REPORT OF WHICH CONTAINED INFORMATION THAT YOU INTENDED TO UTILIZE BRISCOE HEAT BLANKETS. IN REVIEWING THE PREAWARD SURVEY REPORT, THE CONTRACTING OFFICER EITHER OVERLOOKED THE INFORMATION OR DID NOT THEN REALIZE THAT IT WAS INCONSISTENT WITH THE IFB REQUIREMENTS. IN VIEW OF THE INFORMATION DISCLOSED IN THE PREAWARD SURVEY REPORT, THE CONTRACTING OFFICER WAS ON NOTICE OF THE POSSIBILITY OF AN ERROR IN THE BID AND A VALID AND BINDING CONTRACT WAS NOT CONSUMMATED WHEN HE FAILED TO BRING THE POSSIBILITY TO YOUR ATTENTION FOR CONSIDERATION. B-169641, APRIL 19, 1971. IN THE CIRCUMSTANCES, SINCE THE CONTRACT HAS NOT BEEN COMPLETED AND YOU HAVE INDICATED THAT TO PERFORM ON THE BASIS OF FURNISHING THERMAL MANAGEMENT BLANKETS WOULD COST YOU AN ADDITIONAL $50,000 AND THAT YOU DO NOT DESIRE TO PROCEED ON THAT BASIS, IT WOULD BE APPROPRIATE TO RESCIND THE CONTRACT. YOU INDICATE THAT YOU WOULD NOT BE SATISFIED WITH THAT RESULT ALONE SINCE YOU ALLEGE THAT YOU HAVE INCURRED SOME $24,000 IN WORK, MODIFICATION CHANGES, ENGINEERING AND MATERIALS COSTS FOR WHICH YOU CLAIM REIMBURSEMENT.

YOUR CONTENTION THAT THE CONTRACT SHOULD BE MODIFIED TO PERMIT YOU TO FURNISH THE BRISCOE BLANKETS HAS NOT GONE UNOBSERVED. IN THAT CONNECTION, THE CONTRACTING OFFICER HAS INDICATED THAT THE CONTRACTING OFFICE DOES NOT HAVE SUFFICIENT DATA AND INFORMATION THAT WOULD PERMIT PERFORMANCE ON THAT BASIS. IN ANY EVENT, WHETHER A CONTRACT SHOULD BE AMENDED TO PERMIT A CHANGE IN SPECIFICATIONS IS A MATTER OF CONTRACT ADMINISTRATION NOT FOR THE CONSIDERATION OF OUR OFFICE. THEREFORE, NO OTHER RELIEF THAN CANCELLATION OF THE CONTRACT IS AUTHORIZED IN THE CIRCUMSTANCES.

YOU QUESTION WHETHER THIS CASE WILL ADVERSELY AFFECT YOUR RIGHT TO BID ON FUTURE GOVERNMENT PROCUREMENTS. ANYONE IS ENTITLED TO RECEIVE AND BID UPON AN IFB. HOWEVER, NOT EVERY LOW BIDDER IS ENTITLED TO AN AWARD. SEE, FOR EXAMPLE, 10 U.S.C. 2305(C) WHICH REQUIRES ALSO THAT THE BIDDER BE "RESPONSIBLE." QUESTIONS OF RESPONSIBILITY ARE CONSIDERED AFTER THE RECEIPT OF BIDS. 40 COMP. GEN. 40, 43 (1960). SEE, ALSO, FOR EXAMPLE, ARMED SERVICES PROCUREMENT REGULATION (ASPR) PART 9 WHICH SETS FORTH THE STANDARDS CONTRACTING OFFICERS ARE TO APPLY IN DETERMINING THE RESPONSIBILITY OF PROSPECTIVE CONTRACTORS. FURTHER, SEE ASPR 1-705.4 WITH RESPECT TO THE REVIEWING AUTHORITY OF SBA WHERE THE CONTRACTING OFFICER FINDS THAT A SMALL BUSINESS CONCERN IS NOT RESPONSIBLE.