B-156542, JUL. 12, 1965

B-156542: Jul 12, 1965

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IN LINE WITH THE DECISIONS OF OUR OFFICE AND THE COURT CASE WHICH WERE CITED TO YOU IN OUR DECISION. WHICH WAS INITIATED SIX MONTHS AFTER THE NEGOTIATED PROCUREMENT WITH AWARD NOT BEING EFFECTED FOR AN ADDITIONAL THREE MONTHS. YOU STATE THAT ALTHOUGH YOU WERE THE THIRD LOW BIDDER ON TWO ITEMS AND THE FOURTH LOW BIDDER ON THREE OTHER ITEMS. THAT IT IS UNFAIR NOT TO GRANT YOU RELIEF UNDER A "MERELY NEGOTIATED INVITATION.'. WHILE A DECISION OF OUR OFFICE IN A MATTER OF THIS NATURE IS ALWAYS SUBJECT TO REVIEW UPON SUBMISSION OF EVIDENCE THAT THE DECISION WAS ERRONEOUS IN POINT OF FACT OR LAW. YOU HAVE NOT FURNISHED ANY ADDITIONAL EVIDENCE RELATING TO THE NEGOTIATED PROCUREMENT WHICH WOULD WARRANT A CHANGE IN OUR CONCLUSION.

B-156542, JUL. 12, 1965

TO PERVO PAINT COMPANY:

YOUR LETTER OF JUNE 9, 1965, REQUESTS RECONSIDERATION OF OUR DECISION B- 156542, DATED JUNE 1, 1965, WHICH DENIED YOUR CLAIM FOR AN INCREASE IN THE PRICE PAID TO YOU BY THE GENERAL SERVICES ADMINISTRATION (GSA) FOR PAINT SUPPLIED UNDER NEGOTIATED CONTRACT NO. GS-OOS-52150, DATED SEPTEMBER 27, 1964.

BRIEFLY, YOU SOUGHT RELIEF FOR AN ALLEGED MISTAKE IN YOUR OFFER, OF WHICH THE CONTRACTING OFFICER HAD NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE UNTIL AFTER THE CONTRACT HAD BEEN AWARDED TO YOU. ACCORDINGLY, THE ERROR BEING UNILATERAL, WE HELD, IN LINE WITH THE DECISIONS OF OUR OFFICE AND THE COURT CASE WHICH WERE CITED TO YOU IN OUR DECISION, THAT UPON ACCEPTANCE OF YOUR OFFER BY THE GOVERNMENT THERE AROSE A BINDING CONTRACT WHICH OBLIGATED YOU TO FURNISH THE PAINT TO THE GOVERNMENT AT THE PRICE STATED IN YOUR OFFER.

IN YOUR LETTER OF JUNE 9, YOU REFER TO AN ADVERTISED PROCUREMENT BY GSA OF THE SAME TYPE PAINT, WHICH WAS INITIATED SIX MONTHS AFTER THE NEGOTIATED PROCUREMENT WITH AWARD NOT BEING EFFECTED FOR AN ADDITIONAL THREE MONTHS. YOU STATE THAT ALTHOUGH YOU WERE THE THIRD LOW BIDDER ON TWO ITEMS AND THE FOURTH LOW BIDDER ON THREE OTHER ITEMS, GSA AWARDED YOU A CONTRACT FOR SUCH ITEMS AFTER RELIEVING THE LOWER BIDDERS OF LIABILITY ON ACCOUNT OF ALLEGED MISTAKES IN THEIR BIDS. YOU CONTEND, THEREFORE, THAT IT IS UNFAIR NOT TO GRANT YOU RELIEF UNDER A "MERELY NEGOTIATED INVITATION.'

WHILE A DECISION OF OUR OFFICE IN A MATTER OF THIS NATURE IS ALWAYS SUBJECT TO REVIEW UPON SUBMISSION OF EVIDENCE THAT THE DECISION WAS ERRONEOUS IN POINT OF FACT OR LAW, YOUR LETTER DOES NOT POINT TO ANY SUCH MISTAKE. ALSO, YOU HAVE NOT FURNISHED ANY ADDITIONAL EVIDENCE RELATING TO THE NEGOTIATED PROCUREMENT WHICH WOULD WARRANT A CHANGE IN OUR CONCLUSION. ACCORDINGLY, ON THE PRESENT RECORD, WE MUST AFFIRM OUR DECISION OF JUNE 1.

AS FOR THE ADVERTISED PROCUREMENT, YOU DO NOT STATE AT WHAT TIME THE MISTAKES IN BID WERE ALLEGED BY THE LOWER BIDDERS, THAT IS, WHETHER PRIOR OR SUBSEQUENT TO AWARD. THE PROCEDURE TO BE FOLLOWED IN CASES IN WHICH MISTAKES IN BIDS ARE ALLEGED PRIOR TO AWARD IS SET FORTH IN FEDERAL PROCUREMENT REGULATIONS 1-2.406-1, -2 AND -3. FOR MISTAKES ALLEGED AFTER AWARD, THE GOVERNING REGULATION IS FRP 1-2.406-4, WHICH WAS ALSO CITED IN OUR JUNE 1 DECISION TO YOU. AS SET OUT IN THOSE REGULATIONS, THE REQUIREMENTS FOR RELIEF ARE QUITE DIFFERENT IN THE TWO CASES.

IF IT IS YOUR POSITION THAT THE ACTION TAKEN BY GSA IN THE ADVERTISED PROCUREMENT WAS IN VIOLATION OF THE REGULATIONS TO YOUR PREJUDICE, AND THAT THE AWARDS TO YOU WERE IMPROPER, WE SHALL GIVE CONSIDERATION TO WHATEVER EVIDENCE YOU MAY SUBMIT IN WRITING IN SUPPORT OF YOUR CHARGES. HOWEVER, THE MERE FACT THAT A PROCURING AGENCY, WHETHER PROPERLY OR IMPROPERLY, HAS TAKEN ACTION IN AN UNRELATED INSTANCE CANNOT BE CONSIDERED AS A PRECEDENT BINDING UPON OUR OFFICE IN THE DISPOSITION OF A SEPARATE CASE PROPERLY BEFORE US FOR CONSIDERATION, WHICH MUST BE SETTLED ON ITS OWN MERITS AND UPON APPLICABLE LEGAL PRINCIPLES.

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