B-177335, DEC 22, 1972
Highlights
SINCE THERE IS NO EVIDENCE IN THE RECORD THAT ATLAS EITHER CONTRIBUTED TO THE GOVERNMENT'S ERROR OR KNEW OF THE MISTAKE PRIOR TO THE AWARD. WAS NOT PLAINLY OR PALPABLY ILLEGAL AND THAT THE CANCELLATION OF THE CONTRACT SHOULD BE CHANGED TO A TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT AND SETTLEMENT MADE WITH THE CONTRACTOR PURSUANT TO THE TERMINATION FOR CONVENIENCE CLAUSE IN THE CONTRACT. SECRETARY: REFERENCE IS MADE TO LETTER ACFF/ANN B. THE FOLLOWING FACTS ARE UNDISPUTED. ATLAS WAS NOT THE LOWEST BIDDER. WHEN THE ERROR WAS DISCOVERED PRIOR TO DELIVERY OF ANY ITEMS. THE CONTRACT WAS CANCELLED. THERE IS NO EVIDENCE IN THE RECORD THAT ATLAS EITHER CONTRIBUTED TO THE GOVERNMENT'S ERROR OR KNEW OF THE MISTAKE PRIOR TO THE AWARD.
B-177335, DEC 22, 1972
CONTRACT - CANCELLATION OR TERMINATION - IMPROPER AWARD DECISION REGARDING THE CLAIM OF ATLAS FABRICATORS, INC., IN THE AMOUNT OF $153,480.87 DUE TO THE CANCELLATION OF A CONTRACT LET BY THE DEPARTMENT OF THE AIR FORCE. SINCE THERE IS NO EVIDENCE IN THE RECORD THAT ATLAS EITHER CONTRIBUTED TO THE GOVERNMENT'S ERROR OR KNEW OF THE MISTAKE PRIOR TO THE AWARD, GAO BELIEVES THAT THE AWARD, WHILE IMPROPER, WAS NOT PLAINLY OR PALPABLY ILLEGAL AND THAT THE CANCELLATION OF THE CONTRACT SHOULD BE CHANGED TO A TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT AND SETTLEMENT MADE WITH THE CONTRACTOR PURSUANT TO THE TERMINATION FOR CONVENIENCE CLAUSE IN THE CONTRACT. B-176393, OCTOBER 13, 1972.
TO MR. SECRETARY:
REFERENCE IS MADE TO LETTER ACFF/ANN B. SMITH/6291, DATED SEPTEMBER 29, 1972, FROM THE DEPUTY CHIEF, ACCOUNTING & FINANCE DIVISION, COMPTROLLER, HEADQUARTERS AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FURNISHING A REPORT RECOMMENDING DENIAL OF THE CLAIM OF ATLAS FABRICATORS, INC., IN THE AMOUNT OF $153,480.87 DUE TO THE CANCELLATION OF CONTRACT F42600-71-C-1718.
THE FOLLOWING FACTS ARE UNDISPUTED. IN THE EVALUATION OF BIDS, THE GOVERNMENT ERRONEOUSLY COMPUTED THE FREIGHT RATES APPLICABLE TO THE ATLAS F.O.B. ORIGIN BID AND MADE AWARD TO ATLAS. UNDER PROPERLY COMPUTED FREIGHT RATES, ATLAS WAS NOT THE LOWEST BIDDER. WHEN THE ERROR WAS DISCOVERED PRIOR TO DELIVERY OF ANY ITEMS, THE CONTRACT WAS CANCELLED.
THERE IS NO EVIDENCE IN THE RECORD THAT ATLAS EITHER CONTRIBUTED TO THE GOVERNMENT'S ERROR OR KNEW OF THE MISTAKE PRIOR TO THE AWARD. IN 52 COMP. GEN. , B-176393, OCTOBER 13, 1972, WHICH SPECIFICALLY OVERRULED 37 COMP. GEN. 330 (1957), AND B-164826, AUGUST 29, 1968, OUR OFFICE HELD IN CIRCUMSTANCES SIMILAR TO THE IMMEDIATE CASE THAT THE AWARD, WHILE IMPROPER, WAS NOT PLAINLY OR PALPABLY ILLEGAL AND THAT THE CANCELLATION OF THE CONTRACT SHOULD BE CHANGED TO A TERMINATION FOR THE CONVENIENCE OF THE GOVERNMENT AND SETTLEMENT MADE WITH THE CONTRACTOR PURSUANT TO THE TERMINATION FOR CONVENIENCE CLAUSE IN THE CONTRACT.
ACCORDINGLY, THE IMMEDIATE CLAIM IS HEREWITH REFERRED TO YOUR DEPARTMENT FOR DISPOSITION CONSISTENT WITH THE ABOVE-REFERENCED DECISION, COPY HEREWITH.