B-174921, APR 5, 1972

B-174921, APR 5, 1972

BID PROTEST - ALLEGED ERROR IN BID - REQUEST FOR WAIVER DENIED DECISION DENYING A REQUEST OF RIHA CONSTRUCTION CO. FOR AN INCREASE IN PRICE ON A CONTRACT AWARDED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN BRUNO, CALIF., FOR CONSTRUCTION OF BARRACKS AT SAN ONOFRE AREA MARINE CORPS BASE, CAMP PENDLETON, CALIF. AS A GENERAL RULE, THE COMP. GEN. WILL ONLY GRANT RELIEF FROM AN ERROR IN BID WHEN THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR BEFORE AWARD. 49 COMP. GEN. 272 (1969). THE RULE IS VALID EVEN WHERE THE ALLEGED ERROR IS CAUSED BY A SUPPLIER. -166152, APRIL 22, 1969. FURTHER, IT IS NOTED THAT IN THE INSTANT CASE, RIHA WAS AWARE OF THE ERROR BEFORE AWARD, YET CHOSE TO REMAIN SILENT UNTIL IT HAD BEEN SELECTED AS THE SUCCESSFUL BIDDER. IN VIEW OF THESE CIRCUMSTANCES, THERE IS NO BASIS FOR GRANTING THE REQUESTED RELIEF.

TO RIHA CONSTRUCTION CO.:

WE REFER TO YOUR LETTER OF JANUARY 4, 1972, REQUESTING AN INCREASE IN PRICE OF CONTRACT NO. N62474-71-C-4413, AWARDED BY THE NAVAL FACILITIES ENGINEERING COMMAND (NFEC), SAN BRUNO, CALIFORNIA, FOR CONSTRUCTION OF BARRACKS AT SAN ONOFRE AREA MARINE CORPS BASE, CAMP PENDLETON, CALIFORNIA.

SEVEN BIDS WERE OFFERED ON THE PROJECT, THE LOWEST SUBMITTED BY YOUR COMPANY ON JUNE 1, 1971, AT $4,567,500. THE BIDS OF THE THREE NEXT LOWEST BIDDERS WERE WITHIN LESS THAN ONE PERCENT OF YOUR BID AND WERE ALSO BELOW THE GOVERNMENT'S ESTIMATE OF $5,167,500. ON JUNE 24, 1971, NFEC AWARDED THE CONTRACT TO YOUR COMPANY.

YOUR BID WAS BASED IN PART ON A QUOTATION OF $95,600 FROM BRAWLEY STEEL COMPANY (BRAWLEY), FOR REINFORCING STEEL, WELDED WIRE FABRIC, AND MASONRY STEEL. THIS WAS THE ONLY QUOTATION WHICH YOU RECEIVED FOR THE MATERIAL AND IT WAS IDENTICAL TO THE ONLY QUOTATION RECEIVED BY THE THREE NEXT LOW BIDDERS, ALSO FROM BRAWLEY. HOWEVER, ON JUNE 15, 1971, APPROXIMATELY ONE WEEK BEFORE AWARD, BRAWLEY NOTIFIED YOU THAT THERE WAS AN ERROR IN ITS QUOTATION FOR THE BUILDING MATERIALS AND REQUESTED AN INCREASE IN ITS PRICE FROM $95,600 TO $181,818. BRAWLEY STATED THAT IF THE NEW QUOTATION WERE NOT ACCEPTED, THE OFFER WOULD BE WITHDRAWN. SINCE BRAWLEY HAD SUBMITTED THE SOLE QUOTATION FOR THE MATERIAL TO THE FOUR LOWEST BIDDERS, YOU REQUESTED NEW QUOTATIONS FOR THE SAME SUPPLIES FROM OTHER OFFERORS. COPIES OF LETTERS FROM THESE SUPPLIERS INDICATE THAT THE LOWEST QUOTATION RECEIVED WAS A COMBINATION BID FROM BETHLEHEM STEEL CORPORATION AND D. F. ETCHINGS MASONRY, INC., AT $177,300. YOU NOW REQUEST A CHANGE ORDER INCREASING THE CONTRACT PRICE BY $81,700, THE DIFFERENCE BETWEEN THE QUOTATION FROM BRAWLEY AND THE COMBINATION BID FOR THE SAME MATERIAL.

WHEN A MISTAKE IN BID IS ALLEGED AFTER AWARD OF A CONTRACT, OUR OFFICE WILL GRANT RELIEF ONLY IF THE MISTAKE WAS MUTUAL OR IF THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR BEFORE AWARD. SEE 49 COMP. GEN. 272 (1969). THIS RULE IS VALID EVEN WHEN THE ALLEGED ERROR IS CAUSED BY A SUPPLIER. SEE B-166152, APRIL 22, 1969. IN THIS CASE, THERE WAS NO ACTUAL NOTICE TO THE GOVERNMENT OF THE ERROR BEFORE AWARD. FURTHER, IN VIEW OF THE SLIGHT DIFFERENCE BETWEEN THE FOUR LOWEST BIDS AND THEIR RELATION TO THE GOVERNMENT ESTIMATE, THERE IS NO BASIS FOR CONCLUDING THAT THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF AN ERROR IN BID.

IN THIS INSTANCE, YOU WERE AWARE OF YOUR SUPPLIER'S ERROR BEFORE AWARD AND YET CHOSE TO REMAIN SILENT AND ACCEPT AWARD AT THE PRICE BID. WHETHER OR NOT YOU HAD FIRM SUBCONTRACT QUOTES FOR ALL ASPECTS OF THE PROPOSED JOB HAS NO BEARING ON THE VALIDITY OF THE CONTRACT AWARD MADE TO YOU ON JUNE 24, 1971. WERE YOU OF THE OPINION THAT THE WITHDRAWAL OF THE BRAWLEY SUBBID ENTITLED YOU TO REQUEST EITHER TO INCREASE YOUR BID PRICE OR TO WITHDRAW YOUR BID ON THE BASIS OF MISTAKE, THE TIME TO ACT ON SUCH OPINION WAS BEFORE, NOT AFTER, YOU HAD ACCEPTED THE AWARD.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR GRANTING THE REQUESTED RELIEF.