B-170950, JAN 14, 1971

B-170950: Jan 14, 1971

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THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE MISTAKE SINCE OFFICE MACHINES' BID COVERED SERVICE UNDER SCHEDULES 1 AND 3 FOR GREENSBORO. HAD AS GSA WAS AWARE NEITHER PLANT FACILITIES NOR PERSONNEL FOR SERVICING THE FAYETTEVILLE AREA. KUNZIG: REFERENCE IS MADE TO A LETTER DATED OCTOBER 1. OFFICE MACHINES WAS AWARDED CONTRACT NO. IT IS REPORTED THAT ON AUGUST 21. THAT THE CORPORATION'S REPRESENTATIVE STATED THAT THE CORPORATION WAS UNAWARE OF THE FAYETTEVILLE AWARD TO IT. OFFICE MACHINES ADVISED THE CONTRACTING OFFICER THAT A TYPOGRAPHICAL ERROR HAD BEEN MADE BY THE CORPORATION IN ENTERING THE BID FIGURES FOR SCHEDULE 2 IN THAT THE BID FIGURES INTENDED FOR SERVICE IN THE GREENSBORO AREA WERE INADVERTENTLY PLACED IN THE SPACE PROVIDED FOR SHOWING BID PRICES FOR SERVICE IN THE FAYETTEVILLE AREA.

B-170950, JAN 14, 1971

CONTRACTS - MISTAKE IN BID - RECISSION ALLOWING RECISSION OF A CONTRACT AWARDED TO OFFICE MACHINES CO., INC., OF GREENSBORO, N.C., BY THE FEDERAL SUPPLY SERVICE, ATLANTA, GEORGIA, FOR REPAIR AND MAINTENANCE OF ADDING MACHINES AND CALCULATORS. WHEN BY MISTAKE, OFFICE MACHINES IN BIDDING ON SCHEDULE 2 OF THE SOLICITATION, ENTERED ITS FIGURES IN THE SPACE PROVIDED FOR SERVICE IN THE FAYETTEVILLE AREA INSTEAD OF GREENSBORO, THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE MISTAKE SINCE OFFICE MACHINES' BID COVERED SERVICE UNDER SCHEDULES 1 AND 3 FOR GREENSBORO, HAD PREVIOUSLY SERVICED GREENSBORO UNDER GSA CONTRACTS, AS A SMALL BUSINESS CONCERN, HAD NEVER HAD A CONTRACT FOR THE FAYETTEVILLE AREA, AND HAD AS GSA WAS AWARE NEITHER PLANT FACILITIES NOR PERSONNEL FOR SERVICING THE FAYETTEVILLE AREA.

TO MR. KUNZIG:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 1, 1970, WITH ENCLOSURES, FROM YOUR 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 OFFICE MACHINES CO., INC. (OFFICE MACHINES), GREENSBORO, NORTH CAROLINA.

THE FEDERAL SUPPLY SERVICE, ATLANTA, GEORGIA, BY SOLICITATION NO. AT/TS- 17334 DATED MARCH 23, 1970, REQUESTED BIDS FOR THE REPAIR AND MAINTENANCE OF ADDING MACHINES AND CALCULATORS AS REQUIRED AT VARIOUS SPECIFIED LOCATIONS THROUGHOUT THE REGION DURING THE PERIOD BEGINNING FROM THE DATE OF AWARD TO JUNE 30, 1971. BID SCHEDULE 1 COVERED THE REPAIR AND MAINTENANCE OF ADDING MACHINES AT NAMED LOCATIONS; BID SCHEDULE 2 COVERED THE REPAIR AND MAINTENANCE OF ROTARY CALCULATORS AT NAMED LOCATIONS; AND BID SCHEDULE 3 COVERED THE REPAIR AND MAINTENANCE OF PRINTING CALCULATORS AT NAMED LOCATIONS. ON JULY 10, 1970, OFFICE MACHINES WAS AWARDED CONTRACT NO. GS-04S-17920 FOR SERVICE AT GREENSBORO, NORTH CAROLINA, UNDER SCHEDULES NOS. 1 AND 3 AND FOR SERVICE AT FAYETTEVILLE, NORTH CAROLINA, UNDER SCHEDULE NO. 2.

IT IS REPORTED THAT ON AUGUST 21, 1970, A REPRESENTATIVE OF THE PROPERTY REHABILITATION BRANCH, PROPERTY MANAGEMENT AND DISPOSAL SERVICE (PMDS), UPON EXAMINING THE GENERAL SERVICES ADMINISTRATION (GSA) REGIONAL REHABILITATION PRICE SCHEDULE FOR ADDING MACHINE AND CALCULATORS WHICH HAD BEEN COMPILED AFTER AWARD, NOTED THAT OFFICE MACHINES, A CONCERN LOCATED IN GREENSBORO, HAD BEEN AWARDED A CONTRACT FOR SERVICING ROTARY CALCULATORS IN THE FAYETTEVILLE AREA, SOME 100 MILES FROM GREENSBORO; THAT THE GSA REPRESENTATIVE CONTACTED OFFICE MACHINES BY TELEPHONE AND REQUESTED THAT THE CORPORATION VERIFY WHETHER IT HAD INTENDED TO BID ON SERVICE IN THE FAYETTEVILLE AREA; AND THAT THE CORPORATION'S REPRESENTATIVE STATED THAT THE CORPORATION WAS UNAWARE OF THE FAYETTEVILLE AWARD TO IT.

BY LETTER DATED AUGUST 21, 1970, OFFICE MACHINES ADVISED THE CONTRACTING OFFICER THAT A TYPOGRAPHICAL ERROR HAD BEEN MADE BY THE CORPORATION IN ENTERING THE BID FIGURES FOR SCHEDULE 2 IN THAT THE BID FIGURES INTENDED FOR SERVICE IN THE GREENSBORO AREA WERE INADVERTENTLY PLACED IN THE SPACE PROVIDED FOR SHOWING BID PRICES FOR SERVICE IN THE FAYETTEVILLE AREA. THE CORPORATION STATED THAT ITS EMPLOYEES DO NOT WORK IN THE FAYETTEVILLE AREA AND THAT IT WOULD ALMOST BE AN IMPOSSIBILITY FOR THE CORPORATION TO FULFILL THAT PART OF THE CONTRACT COVERING THE FAYETTEVILLE AREA. THE CORPORATION REQUESTED THAT IT BE RELIEVED OF THE OBLIGATION OF FURNISHING REPAIR AND MAINTENANCE SERVICES IN THE FAYETTEVILLE AREA. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED PAGE 35 OF THE SOLICITATION WHICH IT USED AS A WORKSHEET AND IT SHOWS THAT THE CORPORATION INTENDED TO BID ON THAT PART OF SCHEDULE 2 COVERING SERVICE IN THE GREENSBORO AREA RATHER THAN THE FAYETTEVILLE AREA.

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-170941, DECEMBER 15, 1970; 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 PORTION OF CONTRACT NO. GS-04S-17920 PERTAINING TO SCHEDULE 2, FAYETTEVILLE, NORTH CAROLINA, BE RESCINDED, THE CONTRACTING OFFICER STATES THAT HE SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE MISTAKE PRIOR TO AWARD SINCE OFFICE MACHINES BID COVERED SERVICE UNDER SCHEDULES 1 AND 3 FOR GREENSBORO, BUT BID FOR SERVICE UNDER SCHEDULE 2 FOR FAYETTEVILLE. ALSO, THE CONTRACTING OFFICER STATES THAT OFFICE MACHINES, A SMALL BUSINESS CONCERN, HAS PREVIOUSLY SERVICED GREENSBORO UNDER GSA CONTRACTS, AND HAS NEVER HAD A GSA CONTRACT FOR FAYETTEVILLE. MOREOVER, GSA-PMDS KNEW THAT OFFICE MACHINES HAS NEITHER THE PLANT FACILITIES AND PERSONNEL NOR FINANCIAL CAPABILITY FOR SERVICING THE FAYETTEVILLE AREA, APPROXIMATELY 100 MILES FROM GREENSBORO. IT IS STATED THAT OFFICE MACHINES HAS NOT PROVIDED ANY SERVICES UNDER SCHEDULE 2 OF ITS CONTRACT.

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-166096, MARCH 5, 1969.

ACCORDINGLY, WE WILL NOT OBJECT TO RESCISSION OF SCHEDULE 2 OF THE CONTRACT WITHOUT LIABILITY TO THE CONTRACTOR, AS ADMINISTRATIVELY RECOMMENDED.

THE FILE TRANSMITTED WITH THE GENERAL COUNSEL'S LETTER OF OCTOBER 1, 1970, IS RETURNED AS REQUESTED.