B-154241, JUN. 10, 1964

B-154241: Jun 10, 1964

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TO THE SECRETARY OF THE INTERIOR: REFERENCE IS MADE TO A LETTER DATED MAY 19. WE HAVE BEEN INFORMED THAT ALTHOUGH THE CONTRACTOR PROMPTLY ALLEGED ERROR PRIOR TO AWARD. THE VETERANS' LANDSCAPING COMPANY FORMALLY ADVISED THE NATIONAL PARK SERVICE AS FOLLOWS: "IN PREPARING OUR PROPOSAL IT IS A CUSTOMARY PROCEDURE THAT WE SEPARATE THE MAINTENANCE AS A SEPARATE ITEM COST. IN TABULATING THE BID ITEM AS LISTED THE SECRETARY FAILED TO PICK UP MAINTENANCE AS IT WAS LISTED IN PENCIL AT THE BOTTOM OF THE UNIT PRICE SCHEDULE.'. THE GENERAL RULE IS THAT A BIDDER MAY NOT CHANGE HIS BID AFTER THE DATE OF OPENING TO THE PREJUDICE OF OTHER BIDDERS. THE STATUTES REQUIRING ADVERTISING FOR BIDS AND THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDERS ARE FOR THE BENEFIT OF THE UNITED STATES IN SECURING BOTH FREE COMPETITION AND THE LOWEST COMPETITIVE PRICES IN ITS PROCUREMENT ACTIVITIES.

B-154241, JUN. 10, 1964

TO THE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO A LETTER DATED MAY 19, 1964, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING A DECISION AS TO WHETHER RELIEF MAY BE GRANTED TO VETERANS' LANDSCAPING COMPANY, INC. OF BIRMINGHAM, ALABAMA, BECAUSE OF AN ALLEGED MISTAKE IN BID.

THE REPORT FURNISHED THIS OFFICE SHOWS THAT THE DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE, SOLICITED BIDS FOR VARIOUS REFORESTATION AND LANDSCAPING SERVICES BY INVITATION DATED JANUARY 6, 1964. ON JANUARY 23, 1964, THE CONTRACTING OFFICER TELEPHONED THE VETERANS' COMPANY FOR THE PURPOSE OF DISCUSSING THE CONTRACTOR'S ABILITY TO PERFORM THE CONTRACT AT THE PRICE BID SINCE THE CONTRACTOR HAD SUBMITTED A BID SUBSTANTIALLY LOWER THAN THE GOVERNMENT'S ESTIMATE. WE HAVE BEEN INFORMED THAT ALTHOUGH THE CONTRACTOR PROMPTLY ALLEGED ERROR PRIOR TO AWARD, THE PARTIES NONETHELESS AGREED THAT AWARD SHOULD BE MADE TO VETERANS' AT THE PRICE BID BECAUSE OF THE THEN IMMINENT EXPIRATION OF CERTAIN AVAILABLE FUNDS. IN THEIR LETTER DATED FEBRUARY 4, 1964, THE VETERANS' LANDSCAPING COMPANY FORMALLY ADVISED THE NATIONAL PARK SERVICE AS FOLLOWS:

"IN PREPARING OUR PROPOSAL IT IS A CUSTOMARY PROCEDURE THAT WE SEPARATE THE MAINTENANCE AS A SEPARATE ITEM COST. IN TABULATING THE BID ITEM AS LISTED THE SECRETARY FAILED TO PICK UP MAINTENANCE AS IT WAS LISTED IN PENCIL AT THE BOTTOM OF THE UNIT PRICE SCHEDULE.'

THE GENERAL RULE IS THAT A BIDDER MAY NOT CHANGE HIS BID AFTER THE DATE OF OPENING TO THE PREJUDICE OF OTHER BIDDERS. NEVERTHELESS, THE STATUTES REQUIRING ADVERTISING FOR BIDS AND THE AWARD OF CONTRACTS TO THE LOWEST RESPONSIBLE BIDDERS ARE FOR THE BENEFIT OF THE UNITED STATES IN SECURING BOTH FREE COMPETITION AND THE LOWEST COMPETITIVE PRICES IN ITS PROCUREMENT ACTIVITIES. THEREFORE, WE HAVE CONSISTENTLY HELD THAT WHERE A MISTAKE IS ALLEGED PROMPTLY AFTER BID OPENING AND WHERE THERE HAS BEEN IMMEDIATELY PRESENTED CONVINCING EVIDENCE SHOWING THAT A MISTAKE WAS MADE, HOW IT OCCURRED, AND WHAT THE BID PRICE WOULD HAVE BEEN EXCEPT FOR THE MISTAKE, THE INTEREST OF THE UNITED STATES REQUIRE THAT THE BID BE CONSIDERED AS CORRECTED, IF SUCH CORRECTION WOULD NOT AFFECT THE RELATIVE STANDING OF OTHER BIDDERS. B-123562, MAY 10, 1955; 37 COMP. GEN. 210.

WHERE A BIDDER SIGNS A CONTRACT BASED ON A BID WHICH HE KNOWS TO BE ERRONEOUS AND THE CONTRACTING OFFICER LATER REFUSES TO ADMIT THAT A BONA FIDE MISTAKE HAD BEEN MADE, RELIEF WILL NOT BE GRANTED SINCE NEITHER THE GOVERNMENT NOR THE CONTRACTOR WERE MISLED INTO ENTERING INTO A CONTRACT DIFFERENT FROM THAT WHICH THEY INTENDED. MASSMAN CONSTRUCTION COMPANY V. UNITED STATES, 102 CT.CL. 699, CERTIORARI DENIED, 325 U.S. 866; 31 COMP. GEN. 384. ON THE OTHER HAND, EVEN THOUGH HE KNOWS HIS BID TO BE ERRONEOUS, A CONTRACTOR MAY BE GRANTED RELIEF WHERE HE SIGNS A CONTRACT RELYING UPON THE CONTRACTING OFFICER'S PROMISE THAT THE MISTAKE WILL BE CORRECTED IF SUFFICIENT EVIDENCE IS LATER SUBMITTED AND HE IN FACT DOES SUBMIT SUCH EVIDENCE. EDMUND J. RAPPOLI COMPANY, INC. V. UNITED STATES, 98 CT.CL. 499; 38 COMP. GEN. 504; 38 ID. 678. THE REASON ADVANCED FOR THIS RULE IS THAT THE GOVERNMENT CANNOT BY FAIR WORDS AND PROMISES INDUCE A PARTY TO SIGN A CONTRACT AND LATER TURN UPON HIM AND DENY RELIEF.

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD, THERE IS NO DOUBT BUT THAT THE CONTRACTOR MADE AN ERROR IN ITS BID AS ALLEGED, AND THAT THIS ERROR WAS KNOWN TO THE CONTRACTING OFFICER PRIOR TO AWARD. IN VIEW THEREOF, WE BELIEVE THAT THE CONTRACTOR IS ENTITLED TO THE ADDITIONAL $3,500 CLAIMED.