B-167821, NOV. 14, 1969

B-167821, NOV. 14, 1969

MISTAKES--ALLEGATION PRIOR TO AWARD--CONTRACTING OFFICER'S ERROR DETECTION DUTY--NOTICE OF ERROR WHERE CONTRACTOR'S REQUEST FOR RELIEF FROM ALLEGED MISTAKE IN BID WAS PREVIOUSLY DENIED, BECAUSE THERE APPEARED TO HAVE BEEN NOTHING TO PLACE CONTRACTING OFFICER ON NOTICE OF ERROR PRIOR TO AWARD THEREFORE ACCEPTANCE OF BID CONSTITUTED VALID AND BINDING CONTRACT WITH RESULT THERE WAS NO LEGAL BASIS FOR RELEASING CONTRACTOR FROM LIABILITY, REQUEST FOR RELIEF IS AGAIN DENIED, AS CONTRACTING OFFICER EXAMINED CONTRACTOR'S BID AND FOUND NOTHING ON FACE THEREOF TO INDICATE THAT IT WAS OTHER THAN AS INTENDED; DETAILED ANALYSIS OF ALL BIDS WAS NOT REQUIRED; AND CONTRACTING OFFICER DID EVERYTHING REQUIRED OF HIM IN EXAMINING CONTRACTOR'S UNIT BID PRICES AGAINST OTHERS SUBMITTED, AND HAVING FOUND NO REASON TO SUSPECT ERROR, HE PROPERLY MADE AWARD TO CONTRACTOR AS LOWEST BIDDER.

TO MAJESTIC PLUMBING AND HEATING SUPPLY CORP.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 27, 1969, REQUESTING RECONSIDERATION OF OUR DECISION B-167821, DATED OCTOBER 22, 1969, WHICH DENIED YOUR REQUEST FOR RELIEF FROM AN ALLEGED MISTAKE IN YOUR BID UNDER GENERAL SERVICES ADMINISTRATION CONTRACT NO. GS-02S-6635.

IN THE DECISION OF OCTOBER 22, 1969, IT WAS HELD THAT SINCE THERE APPEARED TO HAVE BEEN NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE ERROR PRIOR TO AWARD, ACCEPTANCE OF YOUR BID CONSTITUTED A VALID AND BINDING CONTRACT WITH THE RESULT THAT THERE WAS NO LEGAL BASIS FOR RELEASING YOU FROM LIABILITY. THE FACTS RELATIVE TO THE MATTER AND THE LAW FOUND APPLICABLE TO THE CASE WERE SET FORTH IN DETAIL IN OUR DECISION OF OCTOBER 22, 1969, AND WILL NOT BE REPEATED HERE.

YOU STATE THAT THE RECORD DOES NOT INDICATE THAT THE CONTRACTING OFFICER PREPARED A DETAILED ANALYSIS OF ALL QUOTED BIDS AND THAT IT WAS HIS RESPONSIBILITY TO PREPARE SUCH AN ANALYSIS IN ORDER TO INSURE THAT THERE WERE NO ERRORS IN SUCH BIDS. YOU CONTEND THAT THE FACT THAT THE DIFFERENCE (3.03 PERCENT) BETWEEN YOUR BID AND THE NEXT LOWEST BID WAS GREATER THAN THE DIFFERENCE (0.94 PERCENT) BETWEEN EACH OF THE OTHER BIDS IS SIGNIFICANT.

SECTION 1-2.406-1 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES THAT AFTER BID OPENING, CONTRACTING OFFICERS SHALL EXAMINE ALL BIDS FOR MISTAKES, AND "IN CASES OF APPARENT MISTAKES AND IN CASES WHERE THE CONTRACTING OFFICER HAS REASON TO BELIEVE THAT A MISTAKE MAY HAVE BEEN MADE, HE SHALL REQUEST FROM THE BIDDER A VERIFICATION OF THE BID, CALLING ATTENTION TO THE SUSPECTED TAKE.' PURSUANT TO THIS PROVISION, THE CONTRACTING OFFICER EXAMINED THE BID OF YOUR FIRM AND FOUND NOTHING ON THE FACE OF SUCH BID TO INDICATE THAT IT WAS OTHER THAN AS INTENDED. DETAILED ANALYSIS OF ALL BIDS, AS SUCH, WAS NOT PREPARED BY THE CONTRACTING OFFICER AND NONE WAS REQUIRED. UNDER FPR SEC. 1-2.403, AN ABSTRACT OF BIDS RECEIVED AND OPENED WAS PREPARED WHICH SHOWED A GENERAL DEXCRIPTION OF THE PROCUREMENT ITEM, NAMES OF BIDDERS, PRICES BID AND OTHER INFORMATION RELEVANT TO EVALUATION SUCH AS TRANSPORTATION DATA FURNISHED BY BIDDERS. HAVING THIS INFORMATION BEFORE HIM AS ABSTRACTED, THE CONTRACTING OFFICER EXAMINED ALL BIDS FOR MISTAKE BUT FOUND NONE. KNOW OF NO REQUIREMENT THAT THE CONTRACTING OFFICER VERIFY EACH UNIT PRICE FIGURE WITH THE BIDDER IF NOTHING APPEARS ON THE FACE OF THE BID OR ABSTRACT OF BIDS WHICH CREATES A DOUBT AS TO THE CORRECTNESS OF THE UNIT PRICE. THE CONTRACTING OFFICER DID ALL THAT WAS REQUIRED OF HIM WHEN HE EXAMINED YOUR UNIT BID PRICES AGAINST THE OTHERS SUBMITTED AND, HAVING FOUND NO REASON TO SUSPECT ERROR, HE PROPERLY AWARDED THE CONTRACT TO YOU AS THE LOWEST BIDDER.

ACCORDINGLY, UPON REVIEW, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN OUR DECISION OF OCTOBER 22, 1969.

WITH RESPECT TO YOUR REQUEST FOR INFORMATION AS TO WHOM YOU MAY ADDRESS A FURTHER APPEAL, YOU ARE ADVISED THAT THE DECISIONS OF OUR OFFICE ARE FINAL AND BINDING UPON THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT. 31 U.S.C. 71, 74; 31 COMP. GEN. 596 (1952). HOWEVER, INDEPENDENTLY OF THE AUTHORITY VESTED IN OUR OFFICE, THE DISTRICT COURTS OF THE UNITED STATES AND THE COURT OF CLAIMS OF THE UNITED STATES HAVE JURISDICTION TO DETERMINE CERTAIN CLAIMS AGAINST THE UNITED STATES. 28 U.S.C. 1346, 1491.