B-150334, FEB. 11, 1963

B-150334: Feb 11, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20. CONCERNING A MISTAKE ALLEGED TO HAVE BEEN MADE BY YOU IN YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. BY THE CITED INVITATION BIDS WERE SOLICITED FOR FURNISHING 80 ITEMS OF ELECTRICAL HARDWARE AND SUPPLIES. ELEVEN BIDS WERE RECEIVED. YOUR NET BID OF $529.30 FOR ITEMS 31 THROUGH 39 ON AN "ALL-OR-NONE" BASIS WAS NOW. THE NEXT LOW BID ON THESE ITEMS ON A "PER ITEM" BASIS WAS IN THE AMOUNT OF $573.98. YOU WERE AWARDED THE CONTRACT NUMBERED GS-04S-10152 ON JULY 23. TOGETHER WITH OTHER ITEMS ON WHICH YOU WERE THE LOW BIDDER. THE CONTRACTING OFFICER HAS STATED THAT SHE WAS NOT ON CONSTRUCTIVE NOTICE OF A MISTAKE IN BID PRIOR TO AWARD BECAUSE THE BID WAS SUBMITTED ON AN .

B-150334, FEB. 11, 1963

TO MIDWAY ELECTRIC SUPPLY CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1962, CONCERNING A MISTAKE ALLEGED TO HAVE BEEN MADE BY YOU IN YOUR BID SUBMITTED IN RESPONSE TO INVITATION FOR BIDS NO. ATC-2506 ISSUED BY THE FEDERAL SUPPLY SERVICE, ATLANTA, GEORGIA, ON JUNE 18, 1962.

BY THE CITED INVITATION BIDS WERE SOLICITED FOR FURNISHING 80 ITEMS OF ELECTRICAL HARDWARE AND SUPPLIES. THE GOVERNMENT RESERVED THE RIGHT TO AWARD BY ITEMS OR GROUPS OF ITEMS. ELEVEN BIDS WERE RECEIVED. YOUR NET BID OF $529.30 FOR ITEMS 31 THROUGH 39 ON AN "ALL-OR-NONE" BASIS WAS NOW. THE NEXT LOW BID ON THESE ITEMS ON A "PER ITEM" BASIS WAS IN THE AMOUNT OF $573.98. YOU WERE AWARDED THE CONTRACT NUMBERED GS-04S-10152 ON JULY 23, 1962, WITH DELIVERY EXPIRATION DATE OF AUGUST 31, 1962, FOR ITEMS 31 THROUGH 39, TOGETHER WITH OTHER ITEMS ON WHICH YOU WERE THE LOW BIDDER. ON AUGUST 31, 1962, A REPRESENTATIVE OF YOUR FIRM TELEPHONED THE CONTRACTING OFFICE AND STATED THAT AN ERROR HAD BEEN MADE IN YOUR QUOTATION ON ITEM 32 (5,500 UNITS) AND REQUESTED THAT THE UNIT PRICE OF $0.035 BE CHANGED TO $0.0472. THEREAFTER YOU SUBMITTED YOUR WORKSHEET SHOWING A UNIT COST OF $0.0516 FOR ITEM 32. THE CONTRACTING OFFICER HAS STATED THAT SHE WAS NOT ON CONSTRUCTIVE NOTICE OF A MISTAKE IN BID PRIOR TO AWARD BECAUSE THE BID WAS SUBMITTED ON AN ,ALL-OR-NONE" BASIS FOR NINE ITEMS AND THE DIFFERENCE BETWEEN YOUR LOW BID OF $529.30 AND THE NEXT LOW OF $573.98 WAS ONLY $44.68 OR 8.4 PERCENT. IN VIEW OF THE FACT THAT YOU BID ON AN ,ALL-OR NONE" BASIS FOR THE NINE ITEMS (31 TO 39, INCLUSIVE) WE SEE NO REASON WHY THE CONTRACTING OFFICER SHOULD HAVE COMPARED BIDS ON ITEM 32 ALONE IN DETERMINING WHETHER YOU WERE THE LOW BIDDER.

WHILE IT MAY BE THAT YOU MADE AN ERROR IN YOUR BID THE QUESTION FOR CONSIDERATION IS NOT WHETHER YOU MADE AN ERROR BUT WHETHER THE ACCEPTANCE OF YOUR BID BY THE GOVERNMENT CONSUMMATED A VALID AND BINDING CONTRACT UNLESS THE OFFICER ACCEPTING THE BID WAS ON NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH CIRCUMSTANCES AS WOULD MADE THE ACCEPTANCE AN ACT OF BAD FAITH. MOFFETT, HODGKINS AND CLARKE COMPANY V. ROCHESTER, 178 U.S. 373. THE CONTRACTING OFFICER HAD NO ACTUAL NOTICE OF ANY MISTAKE BY YOU PRIOR TO AWARD AND THERE WAS NOTHING DONE OR REQUIRED TO BE DONE BY THE CONTRACTING OFFICER WHICH SHOULD HAVE PUT HER ON NOTICE OF A POSSIBLE MISTAKE.

IN THESE CIRCUMSTANCES WE FIND NO LEGAL BASIS FOR PAYING ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE FOR THE ITEMS COVERED BY THE CONTRACT.