B-170945, OCT. 26, 1970

B-170945: Oct 26, 1970

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(SOLE BIDDER) REQUEST FOR AN INCREASE IN CONTRACT PRICE DUE TO A BID ERROR ON WHICH A FOREST SERVICE CONTRACT FOR A LIGHT BEAM DRAFTING HEAD WITH A MAP DISK AND FOUR SETS OF ALPHANUMERIC DISKS WAS BASED. WHICH SHOULD HAVE ALERTED HIM TO THE POSSIBILITY THAT THE PRICE ON ANOTHER ITEM WAS ALSO ERRONEOUS. THERE IS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR WHERE ONLY ONE BID IS RECEIVED. THE ERROR ALLEGED IN THE OPTION IS NOT THE SAME AS THE ERROR ALLEGED IN THE OTHER ITEM. THE CONTRACTOR'S REQUEST FOR AN INCREASE IN THE CONTRACT PRICE IS DENIED. SECRETARY: REFERENCE IS MADE TO LETTER OF SEPTEMBER 30. ALLEGES IT MADE IN ITS BID ON WHICH FOREST SERVICE CONTRACT 13-463 IS BASED.

B-170945, OCT. 26, 1970

BID PROTEST - ERROR IN BID DENYING FAUL-CORADI, INC. (SOLE BIDDER) REQUEST FOR AN INCREASE IN CONTRACT PRICE DUE TO A BID ERROR ON WHICH A FOREST SERVICE CONTRACT FOR A LIGHT BEAM DRAFTING HEAD WITH A MAP DISK AND FOUR SETS OF ALPHANUMERIC DISKS WAS BASED. ALTHOUGH CONTRACTING OFFICER RECOMMENDS CORRECTION ON BASIS THAT HE HAD CONSTRUCTIVE KNOWLEDGE OF ERROR PRIOR TO AWARD, IN THAT THE OFFERORS TELEGRAM STATING THAT AN ERROR HAD BEEN MADE IN THE NUMBER OF DISKS IN THE ALPHANUMERIC SETS IN THE OPTIONS, WHICH SHOULD HAVE ALERTED HIM TO THE POSSIBILITY THAT THE PRICE ON ANOTHER ITEM WAS ALSO ERRONEOUS, THERE IS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR WHERE ONLY ONE BID IS RECEIVED, AND IN THE PRESENT CASE, THE ERROR ALLEGED IN THE OPTION IS NOT THE SAME AS THE ERROR ALLEGED IN THE OTHER ITEM; THEREFORE, THE CONTRACTOR'S REQUEST FOR AN INCREASE IN THE CONTRACT PRICE IS DENIED.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 30, 1970, WITH ENCLOSURES, FROM THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, REQUESTING A DECISION REGARDING AN ERROR FAUL-CORADI, INC., ALLEGES IT MADE IN ITS BID ON WHICH FOREST SERVICE CONTRACT 13-463 IS BASED.

THE INVITATION FOR BIDS UPON WHICH THE CONTRACT IS BASED SOLICITED PRICES ON FOUR ITEMS. ITEM 1 SOLICITED A PRICE FOR FURNISHING A LIGHT BEAM DRAFTING HEAD WITH A MAP DISK AND FOUR SETS OF ALPHANUMERIC DISKS EACH SET HAVING A DIFFERENT STYLE OF LETTERING AS SPECIFIED IN THE SPECIFICATIONS. THE REMAINING THREE ITEMS WERE OPTIONAL ITEMS. THE FIRST OPTION WAS AN ADDITIONAL SET OF ALPHANUMERIC DISKS IDENTICAL IN LETTER STYLE TO ANY ONE OF THE FOUR REQUIRED TO BE FURNISHED IN ITEM 1. THE SECOND OPTION WAS AN ADDITIONAL MAP SYMBOL DISK IDENTICAL TO THAT REQUIRED BY ITEM 1. THE THIRD OPTION LISTED 10 DIFFERENT STYLES OF LETTERING AND SOLICITED A SEPARATE PRICE FOR A SET OF ALPHANUMERIC DISKS IN EACH STYLE.

PRIOR TO THE SCHEDULED BID OPENING TIME, THE CONTRACTING OFFICER RECEIVED A TELEGRAM FROM FAUL-CORADI, INC., STATING THAT IT HAD ERRONEOUSLY BID ON THE FIRST AND THIRD OPTIONS ON THE BASIS OF ONE DISK INSTEAD OF ONE SET OF FIVE DISKS AND THAT THE PRICE PER SET SHOULD BE $2,925. A LETTER RECEIVED AFTER BID OPENING CONFIRMED THE TELEGRAM.

ONLY ONE BID WAS RECEIVED ON THE PROCUREMENT AND THAT WAS FROM FAUL CORADI. IT BID $37,510 ON ITEM 1, $585 A SET FOR OPTION 1, $465 A DISK FOR OPTION 2 AND $585 A SET FOR EACH OF THE 10 SETS LISTED IN OPTION 3. IN VIEW OF THE BID AND THE MODIFICATION, AN AWARD WAS MADE TO FAUL CORADI FOR ITEM 1 AT $37,510, FOR OPTION 2 AT $465 AND FOR THREE OF THE ALPHANUMERIC DISK SETS IN OPTION 3 AT $2,925 A SET FOR A TOTAL AWARD OF $46,750.

ABOUT 2-1/2 MONTHS AFTER AWARD, FAUL-CORADI SENT A LETTER TO THE CONTRACTING OFFICER ALLEGING THAT IT MADE AN ERROR IN THE PRICE ON ITEM 1 IN THAT IN PREPARING ITS BID FOR THE ITEM IT HAD INCLUDED $2,925 ON THE BASIS OF FURNISHING ONE SET OF ALPHANUMERIC DISKS, WHEREAS THE SPECIFICATIONS REQUIRE IT TO FURNISH FOUR SETS. THE WORKSHEET FURNISHED WITH THE LETTER SHOWS THAT THE BID ON ITEM 1 WAS PREPARED ON THE OF THE LIGHT BEAM DRAFTING HEAD AND ONE SET OF ALPHANUMERIC DISKS. NO PROVISION WAS MADE ON THE WORKSHEET FOR FURNISHING THE MAP DISK WITH ITEM 1. THE CONTRACTOR REQUESTS THAT THE CONTRACT PRICE BE INCREASED BY $9,240 TO COVER THE OMISSIONS.

THE CONTRACTING OFFICER RECOMMENDS CORRECTION ON THE BASIS THAT HE HAD CONSTRUCTIVE NOTICE OF THE PROBABILITY OF AN ERROR PRIOR TO AWARD IN THAT THE CONTRACTOR'S TELEGRAM STATING THAT AN ERROR HAD BEEN MADE IN THE NUMBER OF DISKS IN THE ALPHANUMERIC SETS IN THE OPTIONS SHOULD HAVE ALERTED HIM TO THE POSSIBILITY THAT THE PRICE ON ITEM 1 WAS ALSO ERRONEOUS. THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, CONCURS IN THE VIEW OF THE CONTRACTING OFFICER.

THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, THE BIDDER MUST BEAR THE CONSEQUENCES OF THE ERROR UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE OF IT. 20 COMP. GEN. 652, 657 (1941). WHERE ONLY ONE BID IS RECEIVED, ORDINARILY THERE IS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. SEE 17 COMP. GEN. 560 (1938), AND 26 ID. 415 (1946). IN THIS CASE, IT IS CONTENDED BY THE CONTRACTING OFFICER AND THE DIRECTOR OF THE OFFICE OF PLANT AND OPERATIONS THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF PROBABILITY OF ERROR ON ITEM 1 BECAUSE OF THE TIMELY ERROR ALLEGED IN THE OPTION ITEMS. HOWEVER, THE ERROR ALLEGED IN THE OPTION ITEMS IS NOT THE SAME AS THE ERROR ALLEGED IN ITEM 1. THE ERROR IN THE OPTION ITEMS WAS AS TO THE NUMBER OF DISKS IN A SET. THE ERROR ALLEGED IN ITEM 1 IS NOT AS TO THE NUMBER OF DISKS IN A SET, BUT AS TO THE NUMBER OF SETS TO BE SUPPLIED WITH THE LIGHT BEAM DRAFTING HEAD AND AS TO THE REQUIREMENT FOR A MAP DISK.

ALTHOUGH ALPHANUMERIC DISKS ARE A REQUIREMENT OF ITEM 1 AS WELL AS THE OPTION ITEMS, THE FACT THAT AN ERROR WAS ALLEGED AND CORRECTED BY TIMELY TELEGRAPHIC BID MODIFICATION IN CONNECTION WITH THE OPTION ITEMS BUT NOT AS TO ITEM 1 DOES NOT REQUIRE THE CONCLUSION THAT IT IS PROBABLE THAT A SIMILAR ERROR WAS MADE IN ITEM 1 AND WAS OVERLOOKED. ITEM 1 IS REGULAR ON ITS FACE AND STATES A LUMP-SUM BID PRICE FOR THE DRAFTING HEAD AND THE ALPHANUMERIC AND MAP DISKS. THERE IS NOTHING IN THE BID PRICE ON ITEM 1 THAT SUGGESTS THAT THERE IS A PROBABILITY THAT ANY ERROR WAS MADE OR THAT THE SAME ERROR MADE IN THE OPTIONS WAS MADE IN ITEM 1. AS A MATTER OF FACT, AS INDICATED ABOVE, THE SAME ERROR WAS NOT MADE. THUS, FROM THE ACTUAL CIRCUMSTANCES, AN ERROR IN THE ALPHANUMERIC DISKS ON ONE ITEM IS NOT INDICATIVE OF THE SAME ERROR IN ANOTHER ITEM FOR THE SAME DISKS.

WITHOUT SOMETHING IN THE BID TO SUGGEST IT, IT DOES NOT NECESSARILY FOLLOW THAT WHEN A BIDDER MAKES A MISTAKE IN SOME ITEMS, IT IS PROBABLE THAT HE HAS MADE THE SAME MISTAKE IN OTHER ITEMS FOR THE SAME ARTICLE. WHERE THE UNIT PRICE FOR ALL THE SAME ITEMS IS IDENTICAL AND A BIDDER ONLY ALLEGES AN ERROR AS TO ONE OF THE ITEMS, SUCH CIRCUMSTANCE SHOULD ORDINARILY GENERATE AN INQUIRY AS TO THE OTHER ITEMS. HOWEVER, WHERE, AS HERE, THE PRICES FOR THE OTHER ITEMS ARE MADE UP OF A NUMBER OF DIFFERENT ARTICLES WITH SINGLE LUMP-SUM PRICES FOR ALL THE ARTICLES, IT IS NOT POSSIBLE TO ASCERTAIN FROM THE BID HOW MUCH THE BIDDER HAS ALLOCATED FOR EACH ARTICLE.

WE CANNOT CONCLUDE FROM THE CIRCUMSTANCES IN THIS CASE THAT THE CONTRACTING OFFICER WAS ON NOTICE OF THE PROBABILITY OF A MISTAKE IN THE PRICE ON ITEM 1. ACCORDINGLY, THE CONTRACTOR'S REQUEST FOR AN INCREASE IN THE CONTRACT PRICE IS DENIED.

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