B-172645, MAY 12, 1971

B-172645: May 12, 1971

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

B-172645, MAY 12, 1971

CONTRACTS - MISTAKE IN BID - RESCISSION DECISION ALLOWING RESCISSION OF A CONTRACT BETWEEN UPLAND INDUSTRIES, INC., AND THE PROCUREMENT OPERATIONS DIVISION, FEDERAL SUPPLY SERVICE FOR A QUANTITY OF FLAT-TYPE SCREWDRIVERS 1 3/4 INCHES LONG WITH A 5/16 INCH DIAMETER BLADE. IT APPEARS THAT A TYPOGRAPHICAL MISTAKE IN BID WAS MADE, UPLAND BEING UNABLE TO MANUFACTURE THE SUBJECT ITEM. FURTHER, THE BID OF $0.17 PER UNIT PRICE, WHICH PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF A POSSIBLE ERROR. THEREFORE, THE CONTRACT MAY BE RESCINDED WITHOUT LIABILITY TO THE CONTRACTOR.

TO MR. KUNZIG:

WE REFER TO THE LETTER OF YOUR GENERAL COUNSEL, DATED APRIL 19, 1971, WITH ENCLOSURES, CONCERNING THE REQUEST FOR RESCISSION OF REQUIREMENTS CONTRACT GS-OOS-88031 FOR FLATTIP SCREWDRIVERS AWARDED TO UPLAND INDUSTRIES, INC., BY THE PROCUREMENT OPERATIONS DIVISION, FEDERAL SUPPLY SERVICE, UNDER SOLICITATION FPNTN-G2-70885-A-5-7-70, ISSUED APRIL 6, 1970.

UPLAND WAS AWARDED THIS CONTRACT COVERING ITEM 21 ON AUGUST 21, 1970, AS LOW BIDDER AT A UNIT PRICE OF $0.17. SUBSEQUENT TO THE AWARD, UPLAND CLAIMED IN ITS LETTER OF SEPTEMBER 3, 1970, THAT IT HAD MADE A MISTAKE IN ITS BID FOR ITEM 21 AS IT DID NOT MANUFACTURE THIS PARTICULAR SCREWDRIVER, WHICH CALLS FOR A 5/16-INCH DIAMETER BLADE WITH A LENGTH OF 1 3/4 INCHES. IN RESPONSE TO THE CONTRACTING OFFICER'S REQUEST FOR FURTHER EVIDENCE ON THE ALLEGED ERROR, UPLAND ASSERTED IN ITS LETTER OF SEPTEMBER 11, 1970, THAT ITS MISTAKE WAS DUE TO A TYPOGRAPHICAL ERROR IN THE PLACEMENT OF ITS BID FIGURES AND THAT IT HAD INTENDED TO BID ON ITEMS 19 AND 20, RATHER THAN ON ITEMS 20 AND 21. UPON THE CONTRACTING OFFICER'S REQUEST FOR PROOF THAT UPLAND DID MANUFACTURE ITEMS 19 AND 20 AND DID NOT MANUFACTURE ITEM 21, UPLAND SUBMITTED ITS CATALOG NO. 18 WITH COVERING LETTER OF DECEMBER 8, 1970, AS EVIDENCE THAT IT MANUFACTURED ITEMS 19 AND 20. HOWEVER, THE PARTICULAR TYPE OF SCREWDRIVER DESCRIBED IN ITS LETTER AND CROSS REFERENCED IN ITS CATALOG DID NOT MEET THE SPECIFICATION REQUIREMENTS FOR ITEM 19. FURTHERMORE, THE CONTRACTOR DID NOT OFFER ANY EVIDENCE REGARDING THE MANUFACTURE OF ITEM 20. IN RESPONSE TO A REQUEST FOR FURTHER CLARIFICATION ON THE MATTER, UPLAND RESPONDED BY LETTER OF DECEMBER 29, 1970, THAT IT COULD MANUFACTURE THE SCREWDRIVER COVERED BY ITEM 20, WHICH HAS A BLADE LENGTH OF 1 1/2 INCHES, BY DRIVING THE BLADE FURTHER INTO THE HANDLE. AS TO ITEM 21, UPLAND ASSERTED IN ITS LETTER OF JANUARY 6, 1971, SUPPLEMENTING ITS DECEMBER 29 LETTER, THAT THIS ITEM REQUIRES A BLADE WITH A 5/16 DIAMETER, WHICH UPLAND DOES NOT MAKE SHORT ENOUGH TO MEET THE REQUIREMENT FOR THIS SCREWDRIVER.

INSOFAR AS THE PROOF ADDUCED BY UPLAND DID NOT APPEAR CONCLUSIVE AS TO ITS CLAIM OF MISTAKE, UPLAND WAS AGAIN REQUESTED TO CLARIFY ITS SUBMISSION IN REGARD TO ITEMS 19 AND 20. IN RESPONSE TO THIS REQUEST, UPLAND, IN ITS LETTER OF MARCH 15, 1971, FORWARDED A WORKSHEET CONTAINING A NOTATION, APPARENTLY, TO THE EFFECT THAT ITEM 21 IS NOT IN ITS LINE OF MANUFACTURE. AS TO ITEMS 19 AND 20, UPLAND SUBMITTED TWO CATALOGS, NO. 17 OF OCTOBER 1969 AND NO. 18 OF OCTOBER 1970. SINCE CATALOG NO. 18 WAS ISSUED AFTER AWARD OF THIS CONTRACT, CATALOG NO. 17 IS MORE RELEVANT AS EVIDENCE TO SUPPORT UPLAND'S CLAIM THAT IT CARRIED THE ITEM 19 SCREWDRIVER AS A REGULAR STOCK ITEM. THIS TYPE OF SCREWDRIVER IS REFERENCED BY UPLAND ON PAGE 16 OF CATALOG NO. 17 AND ON PAGE 21 OF CATALOG NO. 18.

YOUR GENERAL COUNSEL STATES THAT WHILE THE FOREGOING EVIDENCE DOES NOT APPEAR TO BE OF THE HIGHEST PROBATIVE VALUE, IT DOES APPEAR THAT UPLAND DOES MANUFACTURE ITEM 19 AND HAS THE CAPABILITY TO MANUFACTURE ITEM 20. FURTHER, IT APPEARS THAT ITEM 21 IS NOT AN UPLAND CATALOG ITEM. YOUR GENERAL COUNSEL IS, THEREFORE, OF THE OPINION THAT THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE CONTRACTING OFFICER'S DETERMINATION THAT A MISTAKE WAS MADE. HE ALSO CONCURS WITH THE CONTRACTING OFFICER'S DETERMINATION THAT BECAUSE OF THE VARIANCE OF 26 PERCENT BETWEEN UPLAND'S BID AND THE NEXT LOW BID, THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF POSSIBLE MISTAKE AND SHOULD NOT HAVE ACCEPTED THE BID WITHOUT VERIFICATION. THE PRICE OF $0.17 PER UNIT QUOTED BY UPLAND WAS SUBSTANTIALLY LOWER THAN THE PRICES OF $0.23, $0.23, AND $0.35, WHICH WERE SUBMITTED BY THE OTHER THREE BIDDERS ON ITEM 21. ALSO, A COMPARISON OF UPLAND'S BID PRICE WITH THE PRIOR YEAR'S CONTRACT PRICE OF $0.23 WOULD HAVE INDICATED THIS SUBSTANTIAL VARIANCE. BOTH YOUR GENERAL COUNSEL AND THE CONTRACTING OFFICER RECOMMEND THAT RESCISSION OF THE CONTRACT WITH UPLAND BE ALLOWED.

AFTER REVIEWING THE RECORD, WE BELIEVE THAT A MISTAKE DID OCCUR AND THAT THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF POSSIBLE ERROR IN THE BID BECAUSE OF THE 26-PERCENT VARIANCE BETWEEN UPLAND'S BID AND THE NEXT LOW BID. CONSEQUENTLY, HE SHOULD HAVE REQUESTED VERIFICATION BEFORE MAKING AWARD ON THE BID. B-165934, FEBRUARY 3, 1969.

SINCE ACCEPTANCE OF A BID WITH KNOWLEDGE, EITHER CONSTRUCTIVE OR ACTUAL, OF ERROR THEREIN DOES NOT CONSUMMATE A VALID AND BINDING CONTRACT, THE CONTRACT FOR ITEM 21 MAY BE RESCINDED, AS ADMINISTRATIVELY RECOMMENDED, WITHOUT LIABILITY TO THE CONTRACTOR.

WE ARE RETURNING THE ENCLOSURES SENT WITH THE LETTER OF APRIL 19 AS REQUESTED.