B-174620, FEB 2, 1972

B-174620: Feb 2, 1972

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SINCE THERE WAS A SUBSTANTIAL DISCREPANCY BETWEEN THE BID PRICE SUBMITTED BY ENRAF AND THE GOVERNMENT'S ESTIMATED PRICE. THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE ERROR AND SHOULD HAVE REQUESTED VERIFICATION OF THE BID. SECRETARY: REFERENCE IS MADE TO A LETTER DATED NOVEMBER 24. TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NIH-71B-(H)-463 WAS AWARDED. ALTHOUGH THE ENRAF BID ON ITEM NO. 1 WAS THE ONLY ONE RECEIVED. THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID AND SHOULD HAVE REQUESTED ENRAF TO VERIFY ITS PRICE PRIOR TO AWARD. ENRAF DOES NOT SEEK TO HAVE THE BID CORRECTED SO AS TO HAVE INCLUDED THEREIN A PREVIOUSLY CALCULATED ITEM WHICH WAS INADVERTENTLY OMITTED FROM THE AMOUNT OF THE ORIGINAL BID.

B-174620, FEB 2, 1972

CONTRACT - CANCELLATION - MISTAKE IN BID DECISION ALLOWING CANCELLATION OF A PORTION OF A CONTRACT AWARDED TO ENRAF-NONIUS, INC. SINCE THERE WAS A SUBSTANTIAL DISCREPANCY BETWEEN THE BID PRICE SUBMITTED BY ENRAF AND THE GOVERNMENT'S ESTIMATED PRICE, THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE ERROR AND SHOULD HAVE REQUESTED VERIFICATION OF THE BID. HOWEVER, CORRECTION OF THE MISTAKE MAY NOT BE ALLOWED UNDER THE CIRCUMSTANCES OF THIS CASE AND, THEREFORE, THE QUESTIONED PART OF THE CONTRACT SHOULD BE CANCELLED WITHOUT LIABILITY TO THE CONTRACTOR.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 24, 1971, WITH ENCLOSURE, FROM THE DIRECTOR OF PROCUREMENT AND MATERIEL MANAGEMENT, OASAM, REQUESTING OUR DECISION REGARDING AN ERROR ALLEGED BY ENRAF NONIUS, INC. (ENRAF), TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NIH-71B-(H)-463 WAS AWARDED.

AFTER AWARD, ENRAF ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE A MISTAKE IN BID FOR ITEM NO. 1 AS THE CAMERA MODEL UPON WHICH IT BASED ITS BID IN THE AMOUNT OF $2,985 DOES NOT MEET THE INVITATION REQUIREMENTS. THEREFORE PROPOSES TO FURNISH A DIFFERENT MODEL AT A PRICE OF $8,725.

ALTHOUGH THE ENRAF BID ON ITEM NO. 1 WAS THE ONLY ONE RECEIVED, THE GOVERNMENT HAD AN ESTIMATE OF $8,375 FOR THE ITEM. IN VIEW OF THE SUBSTANTIAL DIFFERENCE BETWEEN THE BID ON ITEM 1 AND THE GOVERNMENT ESTIMATE FOR THE EQUIPMENT, THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID AND SHOULD HAVE REQUESTED ENRAF TO VERIFY ITS PRICE PRIOR TO AWARD.

ON THE BASIS OF THE FACTS AND EVIDENCE OF RECORD THERE APPEARS NO DOUBT THAT ENRAF MADE A MISTAKE IN BID FOR ITEM NO. 1. HOWEVER, IN REQUESTING CORRECTION OF THE MISTAKE, ENRAF DOES NOT SEEK TO HAVE THE BID CORRECTED SO AS TO HAVE INCLUDED THEREIN A PREVIOUSLY CALCULATED ITEM WHICH WAS INADVERTENTLY OMITTED FROM THE AMOUNT OF THE ORIGINAL BID. RATHER, ENRAF PROPOSES TO FURNISH A DIFFERENT MODEL CAMERA THAN THE ONE IT BASED ITS BID UPON AND TO INCREASE THE BID BY AN AMOUNT REPRESENTING THE DIFFERENCE IN PRICE BETWEEN THE TWO MODELS.

IN 17 COMP. GEN. 575, 577 (1938), IT WAS STATED:

"THE BASIC RULE IS, OF COURSE, THAT BIDS MAY NOT BE CHANGED AFTER THEY ARE OPENED, AND THE EXCEPTION PERMITTING A BID TO BE CORRECTED UPON SUFFICIENT FACTS ESTABLISHING THAT A BIDDER ACTUALLY INTENDED TO BID AN AMOUNT OTHER THAN SET DOWN ON THE BID FORM, WHERE THE CONTRACTING OFFICER IS ON NOTICE OF THE ERROR PRIOR TO ACCEPTANCE, DOES NOT EXTEND TO PERMITTING A BIDDER TO RECALCULATE AND CHANGE HIS BID TO INCLUDE FACTORS WHICH HE DID NOT HAVE IN MIND WHEN HIS BID WAS SUBMITTED, OR AS TO WHICH HE HAS SINCE CHANGED HIS MIND. TO PERMIT THIS WOULD REDUCE TO A MOCKERY THE PROCEDURE OF COMPETITIVE BIDDING REQUIRED BY LAW IN THE LETTING OF PUBLIC CONTRACTS. *** "

THE FOREGOING IS EQUALLY APPLICABLE HERE. TO ALLOW CORRECTION OF THE ENRAF BID WOULD BE, IN EFFECT, PERMITTING IT TO RECALCULATE AND CHANGE THE BID TO INCLUDE FACTORS IT DID NOT HAVE IN MIND WHEN IT SUBMITTED THE BID.

IN VIEW OF THE FOREGOING, CORRECTION OF ENRAF'S MISTAKE CANNOT BE ALLOWED. HOWEVER, THAT PART OF THE CONTRACT WITH ENRAF PERTAINING TO ITEM 1 SHOULD BE CANCELED WITHOUT LIABILITY TO THE CONTRACTOR.