B-169780, MAY 26, 1970

B-169780, MAY 26, 1970

CONTRACTS--MISTAKES--CONTRACTING OFFICER'S ERROR DETECTION DUTY--PRICE VARIANCES NO OBJECTION IS MADE TO RESCISSION OF CONTRACT AS ADMINISTRATIVELY RECOMMENDED WHERE CONTRACTOR, AFTER AWARD, ALLEGED MISTAKE IN BID AS RESULT OF CLERICAL ERROR SINCE RELIEF WILL BE GRANTED IF MISTAKE IS MUTUAL OR CONTRACTING OFFICER IS ON ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR. HERE, 55 PERCENT DIFFERENCE BETWEEN CONTRACT PRICE AND ONLY OTHER BID AND 34 PERCENT DIFFERENCE BETWEEN CONTRACT PRICE AND PREVIOUS CONTRACT PRICE WERE SUFFICIENT TO PUT CONTRACTING OFFICER ON NOTICE OF ERROR AND IMPOSE DUTY TO VERIFY BID PRIOR TO ACCEPTANCE. SEE COMP. GEN. DECS. CITED.

TO MR. KUNZIG:

REFERENCE IS MADE TO A LETTER DATED MAY 8, 1970, WITH ENCLOSURES, FROM THE GENERAL COUNSEL, FORWARDING FOR OUR REVIEW AND DECISION THE FINDINGS AND DETERMINATION OF A CONTRACTING OFFICER REGARDING A MISTAKE IN BID ALLEGED AFTER AWARD BY THE GENERAL CABLE CORPORATION (GENERAL CABLE), BALTIMORE, MARYLAND.

SOLICITATION NO. WA-BC-R-W-52834-2-24-70, ISSUED BY THE WASHINGTON, D.C; REGIONAL OFFICE, INVITED BIDS FOR A DEFINITE QUANTITY OF ITEMS UNDER FSC CLASS 6145, WIRE AND CABLE, POWER, ELECTRICAL. AWARD OF CONTRACT NO. GS- 03S-33775 WAS MADE ON MARCH 4, 1970, TO GENERAL CABLE IN THE AMOUNT OF $5,641.

ON MARCH 13, 1970, THE CONTRACTING OFFICER RECEIVED A TELEPHONE CALL FROM GENERAL CABLE ADVISING IT HAD MADE A MISTAKE IN ITS BID IN THAT THE BID PRICES FOR ITEMS 6145-841-8308 AND -8273 WERE MISTAKENLY TYPED IN THE SPACES PROVIDED FOR BIDS ON ITEMS 6145-635-4603 AND -4605, RESPECTIVELY. THE ALLEGATION CONCERNING THE MISTAKE WAS CONFIRMED BY LETTER DATED MARCH 20, 1970, FROM GENERAL CABLE. BECAUSE OF THE CLERICAL NATURE OF THE ERROR, NO WORKSHEETS OR PRICE LISTS WERE SUBMITTED; HOWEVER, THE CONTRACTOR ADVISED THAT IT DID NOT MANUFACTURE THE ITEMS ON WHICH IT HAD SUBMITTED THE MISTAKEN BIDS. NO DELIVERIES HAVE BEEN MADE UNDER THE CONTRACT NOR HAVE ANY PAYMENTS BEEN MADE.

WHERE A MISTAKE HAS BEEN ALLEGED AFTER AWARD OF THE CONTRACT, OUR OFFICE WILL GRANT RELIEF IF THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD. B-168895, FEBRUARY 12, 1970; B-167745, SEPTEMBER 2, 1969; B 167031, JUNE 16, 1969; 37 COMP. GEN. 685 (1958). IN HIS FINDINGS AND DETERMINATION, IN WHICH HE RECOMMENDED THAT THE AWARD TO GENERAL CABLE BE RESCINDED, THE CONTRACTING OFFICER STATES THAT HE SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE MISTAKE PRIOR TO AWARD SINCE THE LOW BID WAS $17.20; THE NEXT LOW AND ONLY OTHER BID WAS $26.70; AND THE PREVIOUS CONTRACT PRICE WAS $23.06. ALSO, THE EXTENSIONS FOR ITEMS 4603 AND -4605 ARE INCORRECT FOR THE QUANTITIES AND UNIT PRICES SHOWN BUT, AFTER COMPUTATION, ARE FOUND TO BE CORRECT FOR ITEMS -8308 AND 8273 FOR WHICH NO BID PRICES WERE SHOWN.

THE FOREGOING SHOWS A DIFFERENCE OF APPROXIMATELY 55 PERCENT BETWEEN THE CONTRACT PRICE AND THE ONLY OTHER BID RECEIVED AND A DIFFERENCE OF ABOUT 34 PERCENT BETWEEN GENERAL CABLE'S PRICE AND THE PREVIOUS CONTRACT PRICE. IN THE CIRCUMSTANCES, WE AGREE WITH YOUR GENERAL COUNSEL AND THE CONTRACTING OFFICER THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF ERROR IN THE BID AND, CONSEQUENTLY, THE BID SHOULD NOT HAVE BEEN ACCEPTED WITHOUT VERIFICATION. B-167745, SUPRA; B 166096, MARCH 5, 1969.

ACCORDINGLY, WE WILL NOT OBJECT TO RESCISSION OF THE CONTRACT WITHOUT LIABILITY TO THE CONTRACTOR, AS ADMINISTRATIVELY RECOMMENDED. THE FILE TRANSMITTED WITH THE GENERAL COUNSEL'S LETTER OF MAY 8, 1970, IS RETURNED HEREWITH AS REQUESTED.