B-171520, DEC. 29, 1970

B-171520, DEC. 29, 1970

BID PROTEST - MISTAKE IN BID DENYING PRICE MODIFICATION REQUESTED BY LION UNIFORM, INC., SUCCESSFUL LOW BIDDER ON CONTRACT WITH POST OFFICE DEPARTMENT FOR THE SUPPLY OF UTILITY UNIFORMS. WHERE THE IFB CLEARLY PLACED BIDDER ON NOTICE OF THE NECESSITY TO PREDICATE BIDS UPON A GRADING OF THE PATTERNS OF EACH GARMENT REQUIRED AND INDICATED WHERE THE BIDDERS COULD OBTAIN THESE PATTERNS AND THE CONTRACTING OFFICER REQUESTED A VERIFICATION OF PROTESTANT'S BID BECAUSE OF SIGNIFICANT DISPARITY BETWEEN IT AND THE ONLY OTHER BID RECEIVED, THE FAILURE OF PROTESTANT TO REQUEST THE PATTERNS UNTIL SIX DAYS AFTER THE AWARD OF CONTRACT ESTABLISHED UNEQUIVOCALLY THAT THE ERROR ALLEGED WAS DIRECTLY ATTRIBUTABLE TO PROTESTANT'S OWN DERELICTION AND THERE IS NO BASIS FOR MODIFICATION OF THE CONTRACT IN SUCH CIRCUMSTANCES.

TO MR. POSTMASTER GENERAL:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 10, 1970, WITH ENCLOSURES, FROM MR. JAMES J. WILSON, ASSISTANT GENERAL COUNSEL, REQUESTING OUR ADVICE ON THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH LION UNIFORM, INC. (LION), ALLEGES IT MADE IN ITS BID UPON WHICH CONTRACT NO. 70-1-01492 WAS AWARDED.

THE RECORD INDICATES THAT BY INVITATION FOR BIDS NO. 2264 ISSUED ON MAY 22, 1970, THE BUREAU OF FACILITIES OF THE POST OFFICE DEPARTMENT REQUESTED BIDS (TO BE OPENED JUNE 12, 1970) FOR THE SUPPLY OF UTILITY UNIFORMS FOR POST OFFICE DEPARTMENT PERSONNEL. THE INVITATION FOR BIDS, AT PAGE 7, INCLUDED THE FOLLOWING INFORMATION:

"GRADING STANDARD PATTERNS: STANDARD PATTERNS FOR ONE SIZE OF EACH OF THE GARMENTS MAY BE OBTAINED FROM U.S. ARMY NATICK LABORATORIES. THE SUCCESSFUL BIDDER WILL BE REQUIRED TO GRADE THE STANDARD PATTERNS TO INCLUDE ALL OF THE SIZES INDICATED IN THE SPECIFICATIONS AT THE UNIT PRICE QUOTED."

TWO BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION AND WERE OPENED ON JUNE 12, 1970, WITH LION'S BID TOTALLING $173,101.00, AS OPPOSED TO THE ONLY OTHER BIDDER'S PRICE OF $197,984.50.

BECAUSE OF THE SIGNIFICANT DISPARITY BETWEEN ITS LOW BID AND THE OTHER BID RECEIVED, LION WAS NOTIFIED BY TELEGRAM OF JUNE 15, 1970, OF THE POSSIBILITY OF ERROR AND REQUESTED TO "VERIFY YOUR CALCULATIONS AND CONFIRM YOUR TOTAL BID PRICE." LION VERIFIED ITS BID PRICE IN A LETTER OF JUNE 19, 1970, IN WHICH ITS PURCHASING AGENT STIPULATED:

" *** I HAVE RE-EXAMINED ALL OF OUR BID PRICES AND HAVE FOUND NO DISCREPANCIES THAT WOULD ALTER OUR BID PRICE, THEREFORE OUR BID REMAINS UNCHANGED." CONSEQUENTLY, CONTRACT NO. 70-1-01492 WAS AWARDED TO LION ON JUNE 30, 1970, AS THE LOW RESPONSIVE, RESPONSIBLE BIDDER AT THE PRICE INDICATED IN ITS BID.

ON JULY 16, 1970, LION ALLEGED BY TELEGRAM THAT PRODUCTION ANALYSIS OF THE PATTERNS REVEALED SIZEABLE COSTING ERRORS IN ITS BID, AND LION THEREFORE REQUESTED RENEGOTIATION OF ITS CONTRACT PRICE. ON JULY 21 THE DEPARTMENT REQUESTED LION TO SUBMIT A WRITTEN STATEMENT WITH ALL PERTINENT EVIDENCE THAT WOULD SERVE TO ESTABLISH THE MISTAKE, THE MANNER IN WHICH IT OCCURRED AND THE BID ACTUALLY INTENDED. LION'S RESPONSE ON JULY 25, 1970, ADVISED, IN PERTINENT PART, AS FOLLOWS:

"THE MOST CRITICAL ERRORS OCCURRED IN THE LONG AND SHORT SLEEVE SHIRTS AND THE JACKET WITH THE REMOVABLE LINER. THE ERROR CAN BE ATTRIBUTED TO THE FALSE ASSUMPTION THAT THE POST OFFICE SHIRTS AND JACKET (WITH LINER) COULD BE MANUFACTURED AT THE SAME PRICE AS OUR OWN GARMENTS. ON ANALYSIS OF THE PATTERNS RECEIVED AFTER AWARD, THE STYLE VARIATION PROVED TO BE SO GREAT THAT IT FORCED US TO REQUEST THIS NEGOTIATION. STYLE VARIATIONS IN THE CAPS AND TROUSERS WERE NOT OF SUFFICIENT IMPORTANCE TO ALTER OUR BID. AN ADDITIONAL ERROR WAS COMMITTED WHEN WE DID NOT INCLUDE THE DIE COSTS NECESSARY FOR THE POCKETS, COLLAR AND CUFFS ON THE POST OFFICE SHIRTS." WITH ITS LETTER LION SUBMITTED WORKSHEETS AND A DETAILED EXPLANATION OF HOW VARIOUS ERRORS OCCURRED IN COMPUTING ITS BID PRICE. BASED THEREON IT REQUESTED AN INCREASE OF $7,934.00 IN ITS CONTRACT PRICE.

ON JULY 29, 1970, THE DEPARTMENT REQUESTED THE NATICK LABORATORIES TO ASCERTAIN THE DATE UPON WHICH LION REQUESTED THE PATTERNS AND THE DATE UPON WHICH THEY WERE MAILED TO LION. NATICK LABORATORIES REPLIED ON AUGUST 10, 1970, THAT LION MADE NO REQUEST FOR THE PATTERNS UNTIL JULY 6, 1970 (SIX DAYS FOLLOWING AWARD OF CONTRACT) AND THAT THE PATTERNS WERE FORWARDED TO LION LATER THAT SAME DAY.

THE FOREGOING ANALYSIS OF THE RECORD AT HAND INDICATES THAT THE ERROR ALLEGED WAS UNILATERAL IN NATURE, AND WAS IN NO MANNER INDUCED BY, OR ATTRIBUTABLE TO, THE GOVERNMENT. THE FAILURE BY LION TO REQUEST THE SAMPLE PATTERNS FROM NATICK UNTIL SIX DAYS FOLLOWING THE AWARD OF CONTRACT ESTABLISHES UNEQUIVOCALLY THAT THE ERROR ALLEGED WAS DIRECTLY ATTRIBUTABLE TO LION'S OWN DERELICTION, SINCE THE INVITATION FOR BIDS CLEARLY PLACED LION ON NOTICE OF THE NECESSITY TO PREDICATE ITS BID UPON A GRADING OF THE PATTERNS TO BE OBTAINED FROM NATICK LABORATORIES.

THIS OFFICE HAS CONSISTENTLY HELD THAT A CONTRACTING OFFICER WHO, AFTER ADVISING THE LOW BIDDER THAT ITS BID IS CONSIDERABLY LOWER THAN THE NEXT LOWEST BID, RECEIVES AN UNEQUIVOCAL CONFIRMATION OF THE BID, HAS FULFILLED HIS RESPONSIBILITY FOR THE ASCERTAINMENT OF THE ACCURACY OF THE BID, AND THE SUBSEQUENT ALLEGATION BY THE CONTRACTOR, AFTER AWARD, OF AN ERROR IN THE BID PRICE DUE TO THE CONTRACTOR'S OWN MISTAKE IN COMPUTING THE BID PRICE DOES NOT AFFORD A BASIS FOR MODIFICATION OF THE CONTRACT. 37 COMP. GEN. 786, B-136104, MAY 22, 1958. RECENT ENUNCIATIONS OF THIS PRINCIPLE ARE EVIDENCED BY B-168306, DECEMBER 23, 1969; B-168773, FEBRUARY 18, 1970; AND B-168015, MAY 22, 1970.

IN THE INSTANT CASE THE RECORD ESTABLISHES THAT THE GOVERNMENT DID ALL THAT WAS REQUIRED OF IT BY ATTEMPTING TO ASCERTAIN THE ACCURACY OF LION'S BID. IT WAS NOT UNTIL AFTER LION CONFIRMED ITS BID THAT THE CONTRACTING OFFICER CONSIDERED IT CORRECT AND PROPER FOR AWARD. UNDER SUCH CIRCUMSTANCES THE CONTRACT, AS EXECUTED, REPRESENTS THE FINAL UNDERSTANDING OF THE PARTIES AND FIXES ALL RIGHTS AND LIABILITIES THEREUNDER. THE RIGHT OF THE GOVERNMENT TO RECEIVE PERFORMANCE IN STRICT ACCORDANCE WITH THE CONTRACT TERMS MAY NOT BE WAIVED BY ANY OFFICER OF THE GOVERNMENT IN THE ABSENCE OF ADEQUATE CONSIDERATION, AND SENTIMENTS OF SYMPATHY FOR POSSIBLE HARDSHIPS OR MISFORTUNES TO THE CONTRACTOR DO NOT AUTHORIZE ANY EXCEPTION TO THE RULE. SEE 22 COMP. GEN. 260 (1942); DAY V UNITED STATES, 245 U.S. 159 (1917).

ACCORDINGLY, ON THE PRESENT RECORD, WE MUST CONCLUDE THAT NO LEGAL BASIS EXISTS FOR MODIFYING THE PRICE SPECIFIED IN CONTRACT NO. 70-1 01492.