B-182700, MAR 14, 1975

B-182700, MAR 14, 1975

1. CONTENTION OF CONTRACTOR ALLEGING ERROR AFTER AWARD THAT NO CONTRACT BUDGET OF PUBLIC RECORD EXISTS IS INCORRECT, AS COST ESTIMATE WAS PREPARED AND UPDATED FOR INCREASED COSTS DUE TO INFLATION PRIOR TO ISSUANCE OF IFB, AND WHEN ESTIMATED COST OF NURSE CALL/PA/INTERCOM IS ADDED TO GOVERNMENT'S UPDATED ESTIMATE, CONTRACTOR'S BID WAS ALMOST IDENTICAL TO ESTIMATE. THEREFORE, CONTRACTING OFFICER WAS NOT ON NOTICE OF POSSIBLE MISTAKE IN BID. ACCORDINGLY, B-182700, DECEMBER 23, 1974, IS AFFIRMED. 2. ALLEGATION THAT EQUIPMENT REQUIRED BY SPECIFICATIONS WILL NOT FUNCTION UNLESS MODIFIED IS MATTER OF CONTRACT ADMINISTRATION AND NOT FOR RESOLUTION UNDER MISTAKE IN BID PROCEDURES. 3. CONTRACTOR'S STATEMENT THAT GAO DIGEST OF INITIAL DECISION WAS UNFAIR IS UNFOUNDED BECAUSE CONTRACTOR HAS MISUNDERSTOOD MEANING OF DIGEST; CONTRACTOR STATES THAT IT CALLED CONTRACTING OFFICER'S ATTENTION TO ERROR AFTER SIGNING CONTRACT, WHEREAS DIGEST REFERS TO CONTRACTING OFFICER'S LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF POSSIBLE ERROR PRIOR TO MAKING OF AWARD. 4. CONTRACTOR'S ASSERTION THAT IT SHOULD NOT BE HELD STRICTLY ACCOUNTABLE AS SPECIFICATIONS WERE INADEQUATE AND DIFFICULT TO INTERPRET IS UNTIMELY, AS QUESTIONS OF THIS NATURE MUST BE BROUGHT TO PROCURING ACTIVITY'S ATTENTION PRIOR TO OPENING OF BIDS UNDER SEC. 20.2(A) OF INTERIM BID PROTEST PROCEDURES AND STANDARDS.

RECONSIDERATION OF DECISION IN MATTER OF VEE SEE CONSTRUCTION COMPANY, INC.:

IN MATTER OF VEE SEE CONSTRUCTION COMPANY, INC., B-182700, DECEMBER 23, 1974, 54 COMP. GEN. , WE CONCLUDED THAT NO LEGAL BASIS EXISTED TO PERMIT CORRECTION AFTER AWARD OF AN ERROR ALLEGED TO HAVE BEEN MADE BY THE VEE SEE CONSTRUCTION COMPANY, INC. (VEE SEE), IN ITS BID WHICH IS THE BASIS OF VETERANS ADMINISTRATION (VA) CONTRACT NO. V537C-891 DATED JUNE 21, 1974.

BY LETTER DATED JANUARY 6, 1975, VEE SEE REQUESTED RECONSIDERATION OF THE DECISION ON FOUR SPECIFIC GROUNDS, EACH OF WHICH WILL BE DISCUSSED BELOW. A CONFERENCE ON THIS MATTER WAS HELD AT OUR OFFICE ON FEBRUARY 10, 1975. FOR THE REASONS THAT FOLLOW, OUR DECEMBER 23 DECISION IS AFFIRMED.

VEE SEE FIRST CONTENDS THAT NO BUDGET OF PUBLIC RECORD EXISTS FOR THIS PROCUREMENT. THIS IS INCORRECT. BY LETTER DATED FEBRUARY 11, 1975, THE VA HAS SUBMITTED ITS CONSTRUCTION COST ESTIMATE FOR THIS PROJECT. ALTHOUGH THE ESTIMATE WAS PREPARED ON DECEMBER 12, 1972, IT WAS ESTIMATED THAT THE CONSTRUCTION COST WOULD APPROXIMATE $25,000 PLUS THE COST OF THE NURSE CALL/PA/INTERCOM. AT THE TIME OF BID OPENING, THE ESTIMATE WAS THOUGHT TO HAVE INCREASED TO $36,000 DUE TO INCREASED COSTS FOR LABOR AND MATERIALS. THE NURSE CALL/PA/INTERCOM COST WAS APPROXIMATELY $14,000 AT THE TIME OF BID OPENING. THEREFORE, VEE SEE'S BID OF $52,000 WAS ALMOST IDENTICAL TO WHAT THE VA BELIEVED THE TOTAL COST TO BE ($50,000) AND, THEREFORE, THERE WAS NOTHING TO PUT THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE MISTAKE IN BID.

NEXT, VEE SEE CONTENDS THAT THE INTERCOM SYSTEM REQUIRED BY THE SPECIFICATIONS WILL NOT FUNCTION UNLESS MODIFIED TO SOME DEGREE. WHETHER AN ITEM REQUIRED UNDER A CONTRACT WILL PERFORM AS CONTEMPLATED AND WHETHER MODIFICATIONS TO THE REQUIREMENTS ARE NECESSARY ARE MATTERS OF CONTRACT ADMINISTRATION. MATTERS OF CONTRACT ADMINISTRATION ARE NOT FOR RESOLUTION UNDER OUR MISTAKE IN BID PROCEDURES AND, THEREFORE, ARE NOT PROPERLY FOR CONSIDERATION AT THIS TIME.

VEE SEE ALSO CONTENDS THAT OUR DECEMBER 23, 1974, DECISION IS UNFAIR AS THE FACTS IN THE DIGEST ARE INCORRECT. VEE SEE STATES THAT IT CALLED THE CONTRACTING OFFICER'S ATTENTION TO THE ERROR SEVERAL DAYS AFTER SIGNING THE CONTRACT, BUT THAT THE CONTRACTING OFFICER ADVISED VEE SEE TO PROCEED AND THAT THE VA WOULD RULE FAIRLY ON THE MATTER. WE FAIL TO UNDERSTAND HOW THE DIGEST IS IN CONFLICT WITH THE STATEMENT, AS THE DIGEST ONLY REFERS TO THE CONTRACTING OFFICER'S LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF POSSIBLE ERROR PRIOR TO THE MAKING OF THE AWARD. THEREFORE, WE DO NOT FIND THE DIGEST TO BE IN CONFLICT WITH VEE SEE'S THIRD CONTENTION.

AND FINALLY, VEE SEE ASSERTS THAT IT SHOULD NOT BE HELD STRICTLY ACCOUNTABLE SINCE THE PLANS FURNISHED WERE GROSSLY INADEQUATE AND DIFFICULT TO INTERPRET. IN OUR OPINION, IF VEE SEE HAD ANY QUESTIONS CONCERNING WHAT WAS REQUIRED UNDER THE IFB, QUESTIONS OF THIS NATURE SHOULD HAVE BEEN BROUGHT TO THE PROCURING ACTIVITY'S ATTENTION PRIOR TO THE OPENING OF BIDS. WHILE VEE SEE NOW SEEKS TO PROTEST THE ADEQUACY OF THE SPECIFICATIONS CONTAINED IN THE IFB, UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.2(A) (1974), PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING IN ORDER TO BE CONSIDERED. IN THIS INSTANCE, VEE SEE FIRST RAISES THIS ALLEGATION SEVERAL MONTHS AFTER BID OPENING. ACCORDINGLY, THE ISSUE IS UNTIMELY RAISED AND WILL NOT BE CONSIDERED ON ITS MERITS.

IN VIEW OF THE FOREGOING, OUR INITIAL DECISION IN THIS MATTER IS AFFIRMED, AND TO THE EXTENT THAT THE LETTER OF JANUARY 6 RAISES ISSUES OF PROTEST NOT ASSERTED BEFORE BID OPENING, THEY ARE DENIED AS BEING UNTIMELY.