B-130245, FEB. 15, 1957

B-130245: Feb 15, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JANUARY 2. REQUESTING OUR DECISION ON THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED TO HAVE BEEN MADE IN A BID SUBMITTED BY MR. THE BID ON THIS AND OTHER ITEMS WAS ACCEPTED AND BECAME THE BASIS OF CONTRACT O.I. NO. 2882 WHICH WAS AWARDED TO MR. THE RECORD INDICATES THAT UNIT PRICE BIDS WERE REQUESTED ON SEVEN USED. THIRTEEN BIDS WERE RECEIVED. THE FIVE HIGHEST OF WHICH WERE IN AMOUNTS OF $10.00. AWARD WAS MADE TO MR. STURMAN IN THE AMOUNT OF $98.00 AND HE WAS NOTIFIED OF SUCH ACTION ON SEPTEMBER 11. UPON RECEIPT OF THE NOTICE THE BIDDER CONTACTED THE CONTRACTING OFFICER AND ADVISED THAT HIS BID IN THE AMOUNT OF $14.00 WAS ON A LOT BASIS RATHER THAN ON A UNIT PRICE BASIS.

B-130245, FEB. 15, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 2, 1957, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY FOR LOGISTICS, REQUESTING OUR DECISION ON THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED TO HAVE BEEN MADE IN A BID SUBMITTED BY MR. ROBERT S. STURMAN ON ITEM NO. 180, SPOT BID SALE, IFB NO. 09-030-S-57-1. THE BID ON THIS AND OTHER ITEMS WAS ACCEPTED AND BECAME THE BASIS OF CONTRACT O.I. NO. 2882 WHICH WAS AWARDED TO MR. STURMAN PRIOR TO NOTIFICATION OF ERROR.

THE RECORD INDICATES THAT UNIT PRICE BIDS WERE REQUESTED ON SEVEN USED, NON-PORTABLE, TYPEWRITERS UNDER ITEM NO. 180 OF THE ABOVE INVITATION. THIRTEEN BIDS WERE RECEIVED, THE FIVE HIGHEST OF WHICH WERE IN AMOUNTS OF $10.00, $11.10, $11.12, $12.15 AND $14.00. BASED ON HIS BID OF $14.00 EACH, AWARD WAS MADE TO MR. STURMAN IN THE AMOUNT OF $98.00 AND HE WAS NOTIFIED OF SUCH ACTION ON SEPTEMBER 11, 1956, BY NOTICE OF AWARD AND SALES DOCUMENT CONTRACT O.I. NO. 2882. UPON RECEIPT OF THE NOTICE THE BIDDER CONTACTED THE CONTRACTING OFFICER AND ADVISED THAT HIS BID IN THE AMOUNT OF $14.00 WAS ON A LOT BASIS RATHER THAN ON A UNIT PRICE BASIS. LETTER DATED SEPTEMBER 12, 1956, THE BIDDER AGAIN ALLEGED ERROR AND SUPPORTED SUCH ALLEGATION WITH AN ORIGINAL WORK PAPER INDICATING AN INTENDED BID PRICE OF $2.00 PER UNIT OR $14.00 FOR THE LOT. ADDITIONALLY, THE BIDDER ALLEGES THAT, AT TIME OF BID OPENING, THE OFFICER IN CHARGE INDICATED THE HIGH BID WOULD BE CONFIRMED PRIOR TO AWARD SINCE IT APPEARED TO BE AN ERROR, AND THAT THE CONTRACTING OFFICER HAD ADVISED HIM ON SEPTEMBER 12, 1956, THAT HE HAD TWICE ATTEMPTED TO CONFIRM THE BID BY TELEPHONE BUT WAS UNABLE TO CONTACT THE BIDDER.

WHILE THE EVIDENCE FURNISHED BY MR. STURMAN APPEARS TO INDICATE THAT THE BID PRICE SUBMITTED BY HIM WAS INTENDED TO BE A LOT PRICE AND NOT A UNIT PRICE, THE RULE IS WELL ESTABLISHED THAT WHERE AN ERROR IN BID IS NOT ALLEGED UNTIL AFTER AN AWARD HAS BEEN MADE, PROOF OF SUCH ERROR WILL NOT BE A SUFFICIENT GROUND TO SUPPORT CANCELLATION OF THE CONTRACT UNLESS IT IS ALSO SHOWN THAT THE CONTRACTING OFFICER KNEW, OR HAD REASON TO KNOW, BEFORE AWARD, THAT THE BID WAS IN ERROR. 15 COMP. GEN. 233; ID. 1049; 17 ID. 452; 18 ID. 942; 19 ID. 168; ID. 404; 23 ID. 596; 29 ID. 323. THE BIDDER ALLEGES THAT BOTH THE OFFICER IN CHARGE OF BID OPENING AND THE CONTRACTING OFFICER BELIEVED THE BID TO BE IN ERROR BUT THE CONTRACTING OFFICER HAS NOT STATED THAT ANY REPRESENTATIVE OF THE GOVERNMENT HAD ACTUAL KNOWLEDGE OF THE ERROR BEFORE AWARD. NOR IS THE AMOUNT OF THE HIGH BID, WHEN COMPARED WITH BIDS RECEIVED, SUFFICIENT TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF ERROR.

UNDER THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE RECORD BEFORE US FAILS TO ESTABLISH A MUTUAL ERROR WHICH WOULD SUPPORT CANCELLATION OF THE CONTRACT AND, SINCE ENFORCEMENT OF THE CONTRACT AT THE PRICE BID WOULD NOT APPEAR TO BE UNCONSCIONABLE, THE CONTRACTOR SHOULD BE REQUIRED TO PERFORM IN ACCORDANCE WITH HIS BID AS SUBMITTED.

THE ENCLOSURES RECEIVED WITH THE LETTER FROM THE ASSISTANT SECRETARY ARE RETURNED.