B-172205, MAR 30, 1971

B-172205, MAR 30, 1971

BID PROTEST - MISTAKE IN BID - RELIEF DENIED DECISION DENYING CANCELLATION OF A CONTRACT FOR PRESSURE AND FILTER TANKS UNDER AN IFB ISSUED BY THE DEPARTMENT OF INTERIOR, BUREAU OF RECLAMATION. PROTESTANT, LOW RESPONSIVE BIDDER, SUBMITTED A BID OF $66,460 WHICH WAS 11 PER CENT UNDER THE NEXT LOW RESPONSIVE OFFER AND 20 PERCENT ABOVE THE GOVERNMENT ESTIMATE. FURTHER, THE INVITATION DID NOT SPECIFY THE TANK DIAMETER REQUIRED SO THERE WAS NO WAY FOR THE CONTRACTING OFFICER TO DISCERN THAT THE BID WAS BASED ON THE WRONG SIZED TANKS. THE MISTAKE WAS UNILATERAL AND NO BASIS EXISTS FOR ITS CORRECTION.

TO HARDEE & GREENER:

YOUR LETTERS OF DECEMBER 9, 1970, AND FEBRUARY 4, 1971, TO THE DENVER OFFICE OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, REQUESTING, ON BEHALF OF OLIN AND HART, INC., THAT SCHEDULE 2 OF CONTRACT NO. 14-06-D-7106, AWARDED TO YOUR CLIENT, BE CANCELED HAVE BEEN REFERRED TO OUR OFFICE FOR CONSIDERATION.

YOU STATE THAT THE PRICES QUOTED TO YOUR CLIENT BY ITS SUPPLIER FOR PRESSURE SAND FILTER TANKS WERE ERRONEOUS BECAUSE THEY WERE BASED ON SUPPLYING TANKS 9 FEET IN DIAMETER RATHER THAN 9.5 FEET IN DIAMETER, THE DIAMETER NECESSARY TO ALLOW ACHIEVEMENT OF THE CONTRACTUALLY REQUIRED MAXIMUM SERVICE FLOW RATE.

YOU HAVE SUBMITTED WORKSHEETS TO INDICATE THAT YOUR CLIENT'S BID PRICE FOR SCHEDULE 2 SHOULD HAVE BEEN $81,552.90, INCLUDING 10-PERCENT PROFIT, BASED ON THE USE OF 9.5-FOOT TANKS, RATHER THAN $66,460 AS LISTED IN ITS BID, WHICH FIGURE WAS BASED ON THE USE OF 9-FOOT TANKS.

THE REPORT SUBMITTED TO US BY THE BUREAU OF RECLAMATION STATES THAT BIDS FOR SCHEDULE 2 RANGED FROM $64,292 TO $139,414 (THE LOWER BID BEING REJECTED AS NONRESPONSIVE), AND THAT THE GOVERNMENT ESTIMATE WAS $55,000. THE REPORT FURTHER STATES THAT -

" *** THERE WAS NOTHING ON THE FACE OF THE OFFER SUBMITTED BY OLIN AND HART, INC. THAT WOULD SERVE TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE ALLEGED ERROR PRIOR TO AWARD INASMUCH AS THAT OFFER WAS ONLY 11 PERCENT UNDER THE NEXT LOW RESPONSIVE OFFER AMOUNTING TO $74,563.45 SUBMITTED BY AQUA MEDIA AND APPROXIMATELY 20 PERCENT ABOVE THE ENGINEER'S ESTIMATE OF $55,000 FOR SCHEDULE NO. 2. *** "

FOR REASONS SET OUT BELOW, WE MUST CONCLUDE THAT NO BASIS EXISTS FOR CANCELLATION OF YOUR CLIENT'S CONTRACT OR FOR UPWARD ADJUSTMENT OF THE CONTRACT PRICE TO REFLECT THE PRICE WHICH WOULD HAVE BEEN BID HAD THE USE OF PROPER SIZED TANKS BEEN CONSIDERED.

THE GENERAL RULE WITH REGARD TO MISTAKES DISCOVERED AFTER THE AWARD OF A CONTRACT IS SUCCINCTLY STATED IN B-168788, MAY 18, 1970, AS FOLLOWS:

"WE HAVE CONSISTENTLY HELD THAT THE RESPONSIBILITY FOR PREPARATION OF A BID RESTS WITH THE BIDDER. THEREFORE, A BIDDER WHO MAKES A MISTAKE IN A BID WHICH HAS BEEN ACCEPTED IN GOOD FAITH BY THE GOVERNMENT MUST BEAR THE CONSEQUENCES UNLESS THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER HAD EITHER ACTUAL OR CONSTRUCTIVE NOTICE OF THE MISTAKE PRIOR TO AWARD. COMP. GEN. 373 (1937) AND 532 (1937); 20 ID. 652 (1941); 23 ID. 596 (1944); 30 COMP. GEN. 509 (1951)."

IN THIS CASE, THE BID SUBMITTED BY YOUR CLIENT WAS SOME $10,000, OR APPROXIMATELY 20 PERCENT, HIGHER THAN THE GOVERNMENT ESTIMATE AND WAS ONLY SOME $8,000, OR APPROXIMATELY 11 PERCENT, LESS THAN THE SECOND LOW BID. FURTHER, THE INVITATION DID NOT SPECIFY THE TANK DIAMETER REQUIRED TO MAINTAIN THE REQUIRED FLOW SO THERE WAS NO WAY FOR THE CONTRACTING OFFICER TO DISCERN THAT YOUR CLIENT'S BID WAS BASED ON THE WRONG SIZED TANKS. THESE CIRCUMSTANCES, WE FIND NO DISCREPANCY IN THE BID SUBMITTED BY YOUR CLIENT SUFFICIENT TO PUT THE CONTRACTING OFFICER ON ACTUAL OR CONSTRUCTIVE NOTICE OF ERROR.

WE CONCLUDE, THEREFORE, THAT ANY ERROR IN THE BID SUBMITTED BY YOUR CLIENT WAS UNILATERAL AND THAT NO LEGAL BASIS EXISTS FOR ITS CORRECTION.

ACCORDINGLY, YOUR REQUEST FOR RELIEF IS DENIED.