B-171763, MAR 9, 1971

B-171763: Mar 9, 1971

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A BID CONTAINING A MISTAKE OBVIOUS ON ITS FACE IN THAT THE BID AMOUNT WRITTEN WAS "TWO HUNDRED EIGHTY THOUSAND AND NO CENTS" AND ADJACENT THERETO "287. A CLAIM FOR THE INTENDED CONTRACT PRICE WAS BEING RESERVED. BECAUSE BIDDER HAS SUBMITTED CLEAR AND CONVINCING EVIDENCE THAT THE HIGHER BID WAS INTENDED. KUNZIG: REFERENCE IS MADE TO A LETTER DATED JANUARY 22. THE FORMALLY ADVERTISED SOLICITATION UNDER WHICH THE CONTRACT WAS AWARDED. SUMS UP THE SITUATION AS FOLLOWS: "TEN BIDS WERE RECEIVED BY BID OPENING DATE OF MAY 26. WAS REJECTED SINCE THAT FIRM WAS DETERMINED BY THE CONTRACTING OFFICER TO BE NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR IN ACCORDANCE WITH SECTION 1-1.310 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR).

B-171763, MAR 9, 1971

MISTAKE IN BID - CONTRACTING OFFICER ON NOTICE DECISION HOLDING THAT THE CONTRACT PRICE SHOULD BE CHANGED FROM $280,000 TO $287,000 DUE TO A MISTAKE IN BID BY COASTATE CONSTRUCTORS ON CONTRACT TO PERFORM GENERAL REMODELING OF THE U.S. POST OFFICE, SANTA ANA, CALIFORNIA. A BID CONTAINING A MISTAKE OBVIOUS ON ITS FACE IN THAT THE BID AMOUNT WRITTEN WAS "TWO HUNDRED EIGHTY THOUSAND AND NO CENTS" AND ADJACENT THERETO "287,000" PLACES THE CONTRACTING OFFICER ON NOTICE OF THE MISTAKE IN BID. FURTHER, SINCE BIDDER ADVISED CONTRACTING OFFICER BEFORE AWARD THAT, ALTHOUGH A CONTRACT WOULD BE ACCEPTED AT THE LOWER FIGURE, A CLAIM FOR THE INTENDED CONTRACT PRICE WAS BEING RESERVED, AND BECAUSE BIDDER HAS SUBMITTED CLEAR AND CONVINCING EVIDENCE THAT THE HIGHER BID WAS INTENDED, THE CONTRACT PRICE MAY BE CHANGED TO $287,000 WHICH AMOUNT DOES NOT EXCEED THE NEXT LOW BID.

TO MR. KUNZIG:

REFERENCE IS MADE TO A LETTER DATED JANUARY 22, 1971, WITH ENCLOSURES, FROM THE GENERAL COUNSEL, RECOMMENDING REFORMATION OF CONTRACT NO. GS-09B- C-2625-SF, AWARDED BY REGION 9, PUBLIC BUILDINGS SERVICE, TO COASTATE CONSTRUCTORS.

THE FORMALLY ADVERTISED SOLICITATION UNDER WHICH THE CONTRACT WAS AWARDED, ISSUED ON APRIL 28, 1970, INVITED BIDS FOR A CONSTRUCTION CONTRACT TO PERFORM GENERAL REMODELING OF THE UNITED STATES POST OFFICE, SANTA ANA, CALIFORNIA. THE GENERAL COUNSEL'S LETTER, SETTING FORTH THE CIRCUMSTANCES LEADING UP TO AND SUBSEQUENT TO THE AWARD OF THE CONTRACT, SUMS UP THE SITUATION AS FOLLOWS:

"TEN BIDS WERE RECEIVED BY BID OPENING DATE OF MAY 26, 1970, FOR THE PROJECT. THE LOW BID OF $257,800, SUBMITTED BY THE UNITECH CONSTRUCTION CORPORATION, WAS REJECTED SINCE THAT FIRM WAS DETERMINED BY THE CONTRACTING OFFICER TO BE NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR IN ACCORDANCE WITH SECTION 1-1.310 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). THE SECOND LOW BID, SUBMITTED BY COASTATE, CONTAINED A MISTAKE OBVIOUS ON THE FACE OF THE BID IN THAT THE BID AMOUNT WRITTEN THEREON WAS 'TWO HUNDRED EIGHTY THOUSAND AND NO CENTS', WHEREAS THE BID AMOUNT APPEARING ADJACENT THERETO ON THE BID FORM EXPRESSED IN ARABIC FIGURES WAS '$287,000.00.' THE THIRD LOW BID OF DIENZ & ZIMMERMAN, INC., WAS $288,000, AND THE GOVERNMENT'S ESTIMATE FOR THE WORK WAS $280,000.

"THE CONTRACTING OFFICER PRIOR TO AWARD TELEPHONED THE PRESIDENT OF COASTATE AND ADVISED HIM THAT AN AWARD WOULD BE MADE BASED ON THE WRITTEN BID PRICE OF $280,000. THIS ACTION WAS TAKEN, ACCORDING TO THE CONTRACTING OFFICER ON THE BASIS OF 'VERBAL ADVICE RECEIVED IN CONNECTION WITH ANOTHER UNRELATED CONTRACTUAL SITUATION, IN WHICH CONCEIVABLY, A CONTRACT WITH MATERIALLY DIFFERENT CIRCUMSTANCES MAY HAVE BEEN INVOLVED.'

"THE CONTRACTING OFFICER ADVISES THAT THE CONTRACTOR RESPONDED TO THE ABOVE ADVICE BY STATING THAT AN AWARD IN THE AMOUNT OF $280,000 WOULD BE UNEQUIVOCALLY ACCEPTABLE. HOWEVER, DURING THE CONVERSATION, THE CONTRACTOR REQUESTED THAT CONSIDERATION BE LATER GIVEN TO THE CONTRACTOR'S ALLEGED INTENDED BID OF $287,000 AND THAT THE CONTRACT SUBSEQUENTLY BE MODIFIED ACCORDINGLY. ON JUNE 30, 1970, THE CONTRACTOR WAS FORMALLY NOTIFIED THAT ITS BID WAS ACCEPTED IN THE AMOUNT OF $280,000.

"BY LETTER DATED JULY 14, 1970, THE CONTRACTOR SIGNED AND RETURNED THE FORMAL CONTRACT AND SUBMITTED EVIDENCE OF ITS ALLEGED INTENDED BID OF $287,000 AND AGAIN REQUESTED THAT THE CONTRACT PRICE BE INCREASED. LETTER OF JULY 28, 1970, A NARRATIVE STATEMENT WAS SUBMITTED TO THE CONTRACTING OFFICER FURTHER EXPLAINING THE MISTAKE. THE EVIDENCE CONSISTS OF THE FINAL PAGE OF THE CONTRACTOR'S STANDARD RECAP FORM AND AN ADJUSTMENT SHEET ALLEGEDLY USED TO DETERMINE THE INTENDED BID PRICE. THE WORKSHEETS SHOW THAT THE COMPUTATION BEFORE THE BID RESULTED IN A FIGURE OF $288,146, REDUCED TO $287,000 FOR BIDDING PURPOSES. COASTATE STATED THAT THE AMOUNT OF 'TWO HUNDRED EIGHTY THOUSAND' WAS WRITTEN ON THE BID FORM INADVERTENTLY."

OUR OFFICE HAS HELD THAT WHEN THE AMOUNT IN A BID WRITTEN IN FIGURES IS NOT THE SAME AS THE AMOUNT WRITTEN IN WORDS, THERE IS A DISCREPANCY ON THE FACE OF THE BID PLACING THE CONTRACTING OFFICER ON NOTICE OF AN ERROR IN BID, THE ACCEPTANCE OF WHICH, WITHOUT AN ADEQUATE REQUEST FOR VERIFICATION PRECLUDES THE CONSUMMATION OF A VALID AND BINDING CONTRACT. B-153977, JUNE 24, 1964. SEE ALSO B-148648, APRIL 19, 1962. IN THE IMMEDIATE CASE, NOT ONLY WAS THE CONTRACTING OFFICER ON NOTICE OF AN ERROR FROM THE DISCREPANCY IN THE BID, BUT HE WAS ALSO ADVISED BY THE BIDDER BEFORE AWARD THAT, ALTHOUGH A CONTRACT WOULD BE ACCEPTED AT THE LOWER FIGURE, A CLAIM FOR THE INTENDED CONTRACT PRICE WAS BEING RESERVED. THUS, THE CONTRACTING OFFICER WAS ON ACTUAL NOTICE OF THE MISTAKE AT THE TIME OF AWARD. IN THE CIRCUMSTANCES, THE CONTRACT PRICE SHOULD BE CHANGED TO $287,000, WHICH AMOUNT DOES NOT EXCEED THE NEXT LOW BID. THIS CONCLUSION IS BASED UPON THE BIDDER'S SUBMISSION OF CLEAR AND CONVINCING EVIDENCE ESTABLISHING THE INTENDED BID, IN ADDITION TO THE BIDDER'S SPECIFIC RESERVATION OF A RIGHT FOR RELIEF PRIOR TO THE AWARD OF THE CONTRACT. SEE 49 COMP. GEN. 446 (1970).

THE ENCLOSURES FORWARDED WITH THE GENERAL COUNSEL'S LETTER ARE RETURNED AS REQUESTED.