B-176125, JUL 14, 1972

B-176125: Jul 14, 1972

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SINCE THE INVITATION PROVIDED THAT AWARD WAS TO BE MADE ON THE BASIS OF AGGREGATE BID PRICES. THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO COMPARE THE BID PRICES ON INDIVIDUAL ITEMS. IT CANNOT BE CONCLUDED THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE ERROR BECAUSE THE VARIANCE BETWEEN THE BARNES' BID AND THAT OF THE SECOND LOW BIDDER WAS ONLY 11.2 PERCENT. DACW35-71 -C-0064 WAS BASED. EACH BIDDER WAS TO TOTAL THE PRICES SUBMITTED FOR THESE FOUR ITEMS. AWARD WAS TO BE BASED UPON THE TOTAL BID PRICE SUBMITTED. THE GOVERNMENT ESTIMATE AND THE FOUR BIDS RECEIVED WERE AS FOLLOWS: GOVERNMENT BARNES & SON SOMES ELECTRIC UNIT ESTIMATED UNIT ESTIMATED UNIT ESTIMATED PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT $ 920 $10.

B-176125, JUL 14, 1972

CONTRACT - MISTAKE IN BID - ADJUSTMENT DENIED DENIAL OF CLAIM OF CHARLES BARNES & SON FOR AN ADJUSTMENT IN CONTRACT PRICE AS A RESULT OF AN ERROR MADE IN COMPUTING A BID UNDER AN IFB ISSUED BY THE CORPS OF ENGINEERS. SINCE THE INVITATION PROVIDED THAT AWARD WAS TO BE MADE ON THE BASIS OF AGGREGATE BID PRICES, THE CONTRACTING OFFICER WAS UNDER NO OBLIGATION TO COMPARE THE BID PRICES ON INDIVIDUAL ITEMS. SEE 47 COMP. GEN. 365, 368 (1968). ACCORDINGLY, IT CANNOT BE CONCLUDED THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE ERROR BECAUSE THE VARIANCE BETWEEN THE BARNES' BID AND THAT OF THE SECOND LOW BIDDER WAS ONLY 11.2 PERCENT.

TO MR. SECRETARY:

WE REFER TO LETTER DAEN-GCC OF MAY 25, 1972, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, SUBMITTING FOR CONSIDERATION THE CLAIM OF CHARLES BARNES & SON FOR AN ADJUSTMENT IN CONTRACT PRICE AS A RESULT OF AN ERROR MADE IN COMPUTING THE BID PRICE UPON WHICH CONTRACT NO. DACW35-71 -C-0064 WAS BASED.

INVITATION FOR BIDS NO. DACW35-71-B-0029 REQUESTED ITEMIZED BID PRICES FOR SUPPLYING AND INSTALLING REINFORCED CONCRETE MANHOLES, TRANSFORMER PADS AND ENCLOSURES, CONCRETE-ENCASED SIX-WAY DUCT LINES, AND RIGID METAL CONDUITS. EACH BIDDER WAS TO TOTAL THE PRICES SUBMITTED FOR THESE FOUR ITEMS, AND AWARD WAS TO BE BASED UPON THE TOTAL BID PRICE SUBMITTED. THE GOVERNMENT ESTIMATE AND THE FOUR BIDS RECEIVED WERE AS FOLLOWS:

GOVERNMENT BARNES & SON SOMES ELECTRIC

UNIT ESTIMATED UNIT ESTIMATED UNIT ESTIMATED

PRICE AMOUNT PRICE AMOUNT PRICE AMOUNT

$ 920 $10,120 $588.50 $ 6,473.50 $1,722.00 $18,942.00

1,613 3,226 658.50 1,317.00 985.00 1,970.00

23 39,744 17.63 30,464.64 12.42 21,461.76

17 2,057 15.90 1,923.90 17.65 2,135.65

TOTAL $55,147 $40,179.04 $44,509.41

CHAMPION, INC. M. J. ELECTRIC

UNIT ESTIMATED UNIT ESTIMATED

PRICE AMOUNT PRICE AMOUNT

$1,748.00 $19,228.00 $1,710.00 $18,810.00

1,843.00 3,686.00 1,333.00 2,666.00

17.28 29,859.84 20.63 35,648.64

15.10 1,827.10 18.87 2,283.27

TOTAL $54,600.94 $59,407.91

AWARD WAS MADE TO CHARLES BARNES & SON ON JUNE 30, 1971. BY LETTER OF SEPTEMBER 29, 1971, THE CONTRACTOR FURNISHED WRITTEN NOTICE TO THE CONTRACTING ACTIVITY THAT AN ERROR OF $3,607.50 HAD BEEN MADE IN COMPUTING ITS BID PRICE FOR ITEM NO. 1 ($588.50). IT IS CONTENDED THAT BECAUSE THE CONTRACTOR'S PRICE WAS SO OUT OF LINE WITH THE PRICES SUBMITTED BY THE OTHER BIDDERS ON THIS ITEM, THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE BARNES ERROR.

THE INITIAL QUESTION TO BE ANSWERED IS WHETHER THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF A MISTAKE PRIOR TO CONTRACT AWARD. WITHOUT NOTICE THERE CAN BE NO CORRECTION OF THE MISTAKE. ON THE RECORD, THERE IS NO QUESTION THAT THE CONTRACTING OFFICER WAS NOT ON ACTUAL NOTICE OF THE MISTAKE. NOR DO WE BELIEVE THAT HE WAS ON CONSTRUCTIVE NOTICE. THAT CONNECTION, WE NOTE THAT THE INVITATION PROVIDED THAT AWARD WOULD BE MADE ON THE BASIS OF EACH BIDDER'S TOTAL AGGREGATE PRICE. THEREFORE, THE SIGNIFICANT ASPECT OF THE BID IS THE AGGREGATE PRICE AND NOT THE ITEM PRICES. THUS, IT IS THE GENERAL RULE THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. SEE 47 COMP. GEN. 365, 368 (1968); B-162563, OCTOBER 17, 1967. ACCORDINGLY, WHILE THE AMOUNT THE CONTRACTOR BID FOR ITEM 1 IS ABOUT ONE-THIRD LESS THAN THE GOVERNMENT'S ESTIMATE FOR THE ITEM AND TWO-THIRDS LESS THAN THE OTHER BIDDERS PRICES FOR THE ITEM, WE DO NOT BELIEVE A COMPARISON OF THE AGGREGATE BID PRICES SUBMITTED, ESPECIALLY SINCE THE SECOND LOW BID WAS ONLY ABOUT 11.2 PERCENT ABOVE THE LOW BID, INDICATES A MISTAKE IN BID BY THE SUCCESSFUL BIDDER. CONSEQUENTLY, WE CONCLUDE THAT ACCEPTANCE OF THE CHARLES BARNES & SON BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR INCREASING THE CONTRACT PRICE ON THE BASIS OF THE CONTRACTOR'S ALLEGATION OF ERROR.