B-182721, MAR 5, 1975

B-182721: Mar 5, 1975

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IN MISTAKE IN BID CASE WHERE SUBSEQUENT TO AWARD OF CONTRACT THE CONTRACTING OFFICER STATES THAT A BONA FIDE MISTAKE WAS ESTABLISHED IN THE BID OF THE CONTRACTOR. THAT HE SHOULD HAVE BEEN PLACED ON NOTICE OF THE MISTAKE BEFORE AWARD. THERE IS NO DOUBT AS TO THE INTENDED BID. INCLUDING THE MAINTENANCE OF THE MODEL 686 TAPE CERTIFIER WHICH IS THE ITEM INVOLVED IN THE MISTAKE ALLEGED BY CDC. THE MISSING QUALIFICATION WAS THEREFORE NOT INCLUDED IN THE ULTIMATE GSA SUPPLY SCHEDULE CONTRACT. IN GSA'S REPORT TO THIS OFFICE IT IS NOTED THAT 10 SUCH 686 TAPE CERTIFIERS ARE PRESENTLY INSTALLED AND SUBJECT TO SERVICE UNDER THE CONTRACT. NORMAL SERVICE OF SUCH MACHINES IS CALLED FOR AT LEAST ONCE A YEAR AT AN APPROXIMATE COST OF $1.

B-182721, MAR 5, 1975

IN MISTAKE IN BID CASE WHERE SUBSEQUENT TO AWARD OF CONTRACT THE CONTRACTING OFFICER STATES THAT A BONA FIDE MISTAKE WAS ESTABLISHED IN THE BID OF THE CONTRACTOR, THAT HE SHOULD HAVE BEEN PLACED ON NOTICE OF THE MISTAKE BEFORE AWARD, AND THERE IS NO DOUBT AS TO THE INTENDED BID, THE CONTRACT MAY BE REFORMED AS ADMINISTRATIVELY RECOMMENDED TO REFLECT THE INTENDED BID.

GENERAL SERVICES ADMINISTRATION REQUEST FOR DECISION:

THE GENERAL COUNSEL, GENERAL SERVICES ADMINISTRATION (GSA), REQUESTS A DECISION, PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.406 4(I), GRANTING APPROVAL OF A CONTRACTING OFFICER'S FINDINGS AND DETERMINATION THAT A GSA CONTRACT BE REFORMED PURSUANT TO MISTAKE IN BID PROCEDURES.

THE SUBJECT MISTAKE HAS BEEN ALLEGED BY CONTROL DATA CORPORATION (CDC) AFTER AWARD OF CONTRACT NO. GS-00C-00232. SOLICITATION NO. CDPS 002-N-10- 4-73, ISSUED BY GSA, REQUESTED BIDS FOR A SUPPLY SCHEDULE CONTRACT FOR RENTAL, PURCHASE, MAINTENANCE, AND REPAIR OF AUTOMATIC DATA PROCESSING EQUIPMENT, INCLUDING THE MAINTENANCE OF THE MODEL 686 TAPE CERTIFIER WHICH IS THE ITEM INVOLVED IN THE MISTAKE ALLEGED BY CDC.

BY LETTERS OF APRIL 16, 1974 AND JUNE 3, 1974, CDC HAS STATED, IN SUBSTANCE, THAT A QUALIFYING STATEMENT EXCLUDING CERTAIN MAINTENANCE WORK FOR THE MODEL 686 TAPE CERTIFIER HAD BEEN INADVERTENTLY OMITTED IN THEIR BID TO THE GSA. THE MISSING QUALIFICATION WAS THEREFORE NOT INCLUDED IN THE ULTIMATE GSA SUPPLY SCHEDULE CONTRACT.

IN GSA'S REPORT TO THIS OFFICE IT IS NOTED THAT 10 SUCH 686 TAPE CERTIFIERS ARE PRESENTLY INSTALLED AND SUBJECT TO SERVICE UNDER THE CONTRACT. NORMAL SERVICE OF SUCH MACHINES IS CALLED FOR AT LEAST ONCE A YEAR AT AN APPROXIMATE COST OF $1,260 PER MACHINE. AS EVIDENCE OF CDC'S OMISSION, GSA NOTES THAT THE CONTRACTOR'S 1972 AND 1973 GSA SCHEDULES AT THE SAME PRICE CONTAINED THE OMITTED STATEMENTS. ADDITIONALLY, GSA HAS POINTED OUT THAT THE OBVIOUS DISPARITY IN MAINTENANCE PRICES FOR THE TAPE CERTIFIER BETWEEN THE PRIOR YEARS' SCHEDULES AND CDC'S THEN CURRENT COMMERCIAL PRICES INCLUDING ALL MAINTENANCE "IS SUFFICIENTLY DOCUMENTED IN THE RECORD TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE."

THIS 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-176836, OCTOBER 5, 1972; FPR 1-2.406 4(J)(2); AND MATTER OF UBIQUE LTD., B-180610, AUGUST 12, 1974. IN THE PRESENT CASE THE CONTRACTING OFFICER HAS STATED THAT A BONA FIDE MISTAKE WAS ESTABLISHED, THAT HE SHOULD HAVE BEEN PLACED ON NOTICE OF THE MISTAKE BEFORE AWARD OF THE CONTRACT, AND THAT THE INTENDED BID SHOULD HAVE INCLUDED THE QUALIFYING STATEMENT CONCERNING MAINTENANCE TO THE TAPE CERTIFIERS.

ACCORDINGLY, THIS OFFICE WILL NOT OBJECT TO THE REFORMATION OF CONTRACT NO. GS-00C-00232 TO ALLOW FOR THE INCLUSION OF THE OMITTED QUALIFYING PROVISION, AS ADMINISTRATIVELY RECOMMENDED. FINALLY, IN REGARD TO POSSIBLE CLAIMS ARISING FOR RETROACTIVE ADJUSTMENTS INVOLVING COMPETITIVE PROCUREMENTS OF MAINTENANCE FROM CDC, WE NOTE WITH APPROVAL THAT GSA HAS AGREED THAT ANY SUCH CLAIMS SHALL BE SUBMITTED TO THIS OFFICE FOR CONSIDERATION, IF DEEMED NECESSARY.