B-176836, OCT 5, 1972
Highlights
THE CONTRACTING OFFICER IS ON CONSTRUCTIVE NOTICE OF THE ERROR SINCE IT IS INCUMBENT ON HIM TO CHECK THE BREAKDOWN SHEETS AND VERIFY THE BID PRICE. SAMPSON: REFERENCE IS MADE TO A LETTER DATED AUGUST 18. BECAUSE THIS WAS A NEGOTIATED PROCUREMENT. IT IS THE GENERAL COUNSEL'S VIEW THAT IT WAS INCUMBENT UPON THE CONTRACTING OFFICER TO CHECK THE BREAKDOWN SHEETS FOR POSSIBLE DISCREPANCIES IN THE ITEMS AND. HE WAS ON CONSTRUCTIVE V NOTICE OF THE ERROR AT THE TIME OF THE AWARD. IT IS HIS VIEW THAT SINCE ITEM 2 IS THE SAME BASIC VEHICLE THE PRICE QUOTED THEREFOR IS EVIDENCE OF THE INTENDED BID PRICE FOR ITEMS 3A AND 3B. IT IS HIS RECOMMENDATION THAT THE CONTRACT PRICE BE REFORMED AS REQUESTED. OUR OFFICE WILL GRANT APPROPRIATE RELIEF WHERE A MISTAKE HAS BEEN ALLEGED SUBSEQUENT TO THE AWARD OF A CONTRACT IF THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD.
B-176836, OCT 5, 1972
NEGOTIATED CONTRACT - REFORMATION - BREAKDOWN SHEET OMISSION DECISION ALLOWING REFORMATION OF A CONTRACT AWARDED BY GSA TO AM GENERAL CORPORATION FOR 9 UTILITY TRUCKS. WHERE THE SUCCESSFUL OFFEROR OMITS FROM ITS BREAKDOWN SHEET AN ITEM REQUIRED BY THE SPECIFICATIONS OF A NEGOTIATED PROCUREMENT, THE CONTRACTING OFFICER IS ON CONSTRUCTIVE NOTICE OF THE ERROR SINCE IT IS INCUMBENT ON HIM TO CHECK THE BREAKDOWN SHEETS AND VERIFY THE BID PRICE.
TO MR. SAMPSON:
REFERENCE IS MADE TO A LETTER DATED AUGUST 18, 1972, WITH ENCLOSURES, FROM THE GENERAL COUNSEL REQUESTING OUR APPROVAL OF A CONTRACTING OFFICER'S FINDINGS AND DETERMINATION THAT CONTRACT NO. GS-00S-88634 BE REFORMED BY INCREASING THE UNIT PRICES FOR ITEMS 3A AND 3B BY $302.75 FROM $2,719.75 AND $2,700.55 TO $3,022.50 AND $3,003.30, RESPECTIVELY, FOR A TOTAL INCREASE OF $2,724.75 FOR 9 UNITS.
THE CONTRACT, DATED OCTOBER 14, 1970, WITH AM GENERAL CORPORATION CALLED FOR NINE UTILITY TRUCKS UNDER ITEM 3, INCLUDING FULL CAB ENCLOSURES FOR LINE ITEMS 3A AND 3B. BECAUSE THIS WAS A NEGOTIATED PROCUREMENT, AM GENERAL SUBMITTED WITH ITS OFFER A COMPLETE BREAKDOWN OF THE PRICE FOR EACH ITEM. HOWEVER, THE BREAKDOWN SHEET FOR ITEMS 3A AND 3B OMITTED A REMOVABLE METAL OR FIBERGLASS FULL-BODY ENCLOSURE (CAB) REQUIRED BY APPLICABLE SPECIFICATIONS. THE BREAKDOWN SHEET FOR ITEM 2, A SIMILAR VEHICLE, INCLUDED A FULL CAB ENCLOSURE PRICED AT $302.75. BY LETTER DATED JULY 30, 1971, THE CONTRACTOR ADVISED THAT IT HAD OMITTED THE CAB ENCLOSURE FOR ITEMS 3A AND 3B AND REQUESTED THE INCREASE IN PRICE.
IT IS THE GENERAL COUNSEL'S VIEW THAT IT WAS INCUMBENT UPON THE CONTRACTING OFFICER TO CHECK THE BREAKDOWN SHEETS FOR POSSIBLE DISCREPANCIES IN THE ITEMS AND, THEREFORE, HE WAS ON CONSTRUCTIVE
V NOTICE OF THE ERROR AT THE TIME OF THE AWARD. FURTHERMORE, IT IS HIS VIEW THAT SINCE ITEM 2 IS THE SAME BASIC VEHICLE THE PRICE QUOTED THEREFOR IS EVIDENCE OF THE INTENDED BID PRICE FOR ITEMS 3A AND 3B. THEREFORE, IT IS HIS RECOMMENDATION THAT THE CONTRACT PRICE BE REFORMED AS REQUESTED.
OUR OFFICE WILL GRANT APPROPRIATE RELIEF WHERE A MISTAKE HAS BEEN ALLEGED SUBSEQUENT TO THE AWARD OF A CONTRACT IF THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD. SEE B-167745, SEPTEMBER 2, 1969, AND CASES CITED; AND FPR 1-2.406-4(J)(2). IN THE CIRCUMSTANCES REPORTED HERE, WE AGREE WITH THE CONCLUSIONS OF THE GENERAL COUNSEL AND CONTRACTING OFFICER RESPECTING CONSTRUCTIVE NOTICE AND THE INTENDED BID PRICE.
ACCORDINGLY, WE HAVE NO OBJECTION TO THE EXECUTION OF A SUPPLEMENTAL AGREEMENT INCREASING THE CONTRACT PRICE AS ADMINISTRATIVELY RECOMMENDED. A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE SUPPLEMENTAL AGREEMENT.
AS REQUESTED, THE ENCLOSURES ARE RETURNED.