B-166761, MAY 14, 1969

B-166761, MAY 14, 1969

TO MR. SHAKESPEARE:

REFERENCE IS MADE TO A LETTER OF APRIL 18, 1969, FROM MR. A. J. GROSS, ASSISTANT CHIEF, CONTRACT AND PROCUREMENT DIVISION, REGARDING AN ALLEGED MISTAKE IN BID BY THE WESTERN PUBLISHING COMPANY, INC. (WESTERN), UPON WHICH CONTRACT NO. IA-13824-24 WAS BASED.

INVITATION FOR BIDS (IFB) NO. 163-24-9 WAS ISSUED ON FEBRUARY 18, 1969, CALLING FOR PRINTING OF A 64-PAGE (PLUS COVER), 4-COLOR BROCHURE. AMENDMENT TO THE IFB WAS ISSUED ON MARCH 5, 1969, SETTING FORTH CERTAIN SUBSTANTIVE CHANGES AND CHANGING THE DATE SET FOR BID OPENING TO MARCH 13, 1969. EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION AND WESTERN SUBMITTED THE LOW BID OF $201,020.40. THE NEXT LOW BID WAS SUBMITTED BY EUREKA PRINTING CO. AT A PRICE OF $211,728. ACCORDINGLY, AWARD WAS MADE TO WESTERN ON MARCH 24, 1969.

ON APRIL 8, 1969, WESTERN ORALLY ADVISED OF AN ALLEGED MISTAKE IN ITS BID. IT WAS ADVISED TO NOTIFY THE CONTRACTING OFFICER IN WRITING AND TO DOCUMENT ITS CASE WITH ALL PERTINENT EVIDENCE. RECEIPT OF THIS INFORMATION WAS CONFIRMED BY THE CONTRACTING OFFICER ON APRIL 9, 1969.

FURTHER EXPLANATION OF THE ERROR WAS PRESENTED BY PERSONNEL FROM WESTERN'S POUGHKEEPSIE PLANT TO THE EFFECT THAT THE ALLEGED ERROR, INVOLVING PAPER COSTS, WAS MADE BY WESTERN'S ESTIMATOR IN HIS CONVERSION OF 3,672,000 SHEETS INTO REAM WEIGHT STATED IN POUNDS. IT IS WESTERN'S CONTENTION THAT THE CONVERSION SHOULD HAVE RESULTED IN A REAM WEIGHT OF 451,656 POUNDS INSTEAD OF THE 226,000 POUNDS IT ALLOWED AND, CONSEQUENTLY, IT BID APPROXIMATELY $60,000 LESS THAN WAS INTENDED.

IT IS REPORTED THAT AFTER THOROUGH EXAMINATION OF WESTERN'S ESTIMATES IT IS REASONABLE TO ASSUME THAT A BONA FIDE MISTAKE WAS MADE BY THE CONTRACTOR IN PREPARING ITS BID. HOWEVER, ON THE BASIS OF THE RECORD BEFORE US, WE FIND NOTHING ON THE FACE OF THE BID WHICH WOULD HAVE PUT THE CONTRACTING OFFICER ON NOTICE OF ERROR. THE NEXT LOW BID WAS LESS THAN 6 PERCENT HIGHER AND THE REMAINING SIX BIDS PROGRESSED UPWARD EVENLY SO AS NOT TO CALL ANY SPECIAL ATTENTION TO WESTERN'S BID. IN ADDITION, THE METHOD OF CONVERSION OF SHEETS INTO REAM WEIGHT WAS NOT REVEALED ON THE BID FORM. THEREFORE, IT IS CLEAR THAT THE ERROR WAS ENTIRELY UNILATERAL AND THAT AWARD WAS BASED ON WESTERN'S LOW RESPONSIVE, RESPONSIBLE BID WITHOUT ANY KNOWLEDGE OF ERROR, ACTUAL OR CONSTRUCTIVE, ON THE PART OF CONTRACTING OFFICIALS.

IN CASES WHERE A MISTAKE HAS BEEN ALLEGED AFTER AWARD OF THE CONTRACT, OUR OFFICE WILL GRANT RELIEF ONLY IF THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER WAS, OR SHOULD HAVE BEEN, ON CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD. THE ACCEPTANCE OF THE BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS OF THE PARTIES THERETO. SEE B-164768, JULY 22, 1968, AND COURT CASES CITED THEREIN. ALSO, IN THIS REGARD, SEE B 164439, AUGUST 26, 1968, AND B-159781, AUGUST 9, 1966. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE CONTRACTOR. FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT.CL. 120. AND, WHILE IT MAY BE THAT AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE CONTRACTOR'S NEGLIGENCE OR OVERSIGHT.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INCREASING THE COMPENSATION PAYABLE UNDER THE CONTRACT.