B-174049, NOV 4, 1971

B-174049, NOV 4, 1971

BID PROTEST - MISTAKE IN BID - CONSTRUCTIVE NOTICE DECISION ALLOWING A CONTRACT BETWEEN THE PROCUREMENT OPERATIONS DIVISION, GSA AND FORD DIVISION, FORD MARKETING CORPORATION TO BE AMENDED DUE TO A MISTAKE IN BID ON AN INVITATION CALLING FOR FURNISHING 6,763 SEDANS AND STATION WAGONS. BECAUSE THERE WAS ONLY ONE BIDDER, FORD MARKETING CORPORATION, IT WAS IMPOSSIBLE TO COMPARE BIDS, AND THERE WAS NOTHING TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID. HOWEVER, SINCE THE CONTRACTING OFFICER CHECKED THE BASE PRICES TO INSURE THAT THEY DID NOT EXCEED THE STATUTORY LIMITATION OF $1,650 PROVIDED IN 31 U.S.C. 638, THE PRICE OF $1,405 ON ONE ITEM WHEN ALL THE OTHERS WERE $1,649 PLACED THE CONTRACTING OFFICER ON CONSTRUCTIVE NOTICE OF A PROBABLE ERROR AND VERIFICATION SHOULD HAVE BEEN REQUESTED PRIOR TO AWARD. THE CONTRACT MAY THEREFORE BE AMENDED TO PROVIDE AN INCREASE OF $244 PER UNIT ON THAT PARTICULAR ITEM.

TO MR. ROBERT L. KUNZIG:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 3, 1971, WITH ENCLOSURE, FROM THE GENERAL COUNSEL, REQUESTING A DECISION CONCERNING AN ERROR ALLEGED BY THE FORD DIVISION, FORD MARKETING CORPORATION, TO HAVE BEEN MADE IN ITS BID UPON WHICH CONTRACT NO. GS-OOS-05480 WAS BASED.

THE PROCUREMENT OPERATIONS DIVISION, GENERAL SERVICES ADMINISTRATION, WASHINGTON, D.C., BY INVITATION FOR BIDS NO FPNML-D3-26767-A-4-8-71 REQUESTED BIDS FOR FURNISHING 6,763 SEDANS AND STATION WAGONS. RESPONSE, THE FORD DIVISION, FORD MARKETING CORPORATION, FALLS CHURCH, VIRGINIA, SUBMITTED THE ONLY BID RECEIVED IN WHICH IT OFFERED TO FURNISH THE SEDANS AND STATION WAGONS AT THE UNIT PRICES SET FORTH OPPOSITE EACH ITEM. THE BID OF THE FORD MARKETING CORPORATION WAS ACCEPTED AS TO ALL ITEMS ON WHICH BIDS WERE MADE ON APRIL 23, 1971.

BY LETTER DATED MAY 11, 1971, FORD ADVISED THE CONTRACTING OFFICE THAT AN ERROR HAD BEEN MADE IN ITS BID ON ITEM 27-E IN THAT IT HAD FAILED TO INCLUDE IN ITS BID PRICE THE TRANSPORTATION COST AMOUNTING TO $244. THE CORPORATION STATED THAT THE ERROR OCCURRED WHEN ITS BID PRICES WERE TRANSFERRED FROM ITS WORKSHEET TO THE FINAL BID FORM. IT ALSO STATED THAT THE CORRECT UNIT PRICE FOR ITEM 27-E IS $2,333 INSTEAD OF $2,089. THE CORPORATION HAS POINTED OUT THAT VERIFICATION CAN BE OBTAINED BY REVIEWING THE OTHER OFFERS ON SEDANS WHEREIN THE BASE PRICE OF $1,649 WAS USED AND THAT IN THE CASE OF ITEM 27-E, IF THE AMOUNTS OF $244 AND $440 FOR TRANSPORTATION AND "ADDITIONAL SYSTEMS," RESPECTIVELY, ARE DEDUCTED FROM THE AMOUNT OF $2,089, THE NET RESULT IS A BASE VEHICLE PRICE OF $1,405, WHICH, IT STATES, DOES NOT AGREE WITH ANY OTHER ITEM IN ITS ENTIRE BID. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED THE WORKSHEET COVERING ITEM 27-E.

ORDINARILY, WHERE, AS HERE, ONLY ONE BID IS RECEIVED ON AN ITEM, THERE IS NO BASIS FOR COMPARISON OF BIDS AND 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). HOWEVER, IN THE FINDINGS AND DETERMINATION DATED JULY 2, 1971, IN WHICH HE RECOMMENDED THAT THE CONTRACT UNIT PRICE FOR ITEM 27-E BE CORRECTED TO READ $2,333, THE CONTRACTING OFFICER STATED THAT THE MISTAKE IN FORD'S BID AS TO ITEM 27-E WAS SO APPARENT THAT HE SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF MISTAKE IN THE BID PRIOR TO AWARD. IN THE GENERAL COUNSEL'S LETTER OF SEPTEMBER 3, 1971, IN WHICH HE RECOMMENDED THAT FORD BE GRANTED THE REQUESTED RELIEF, IT IS STATED THAT PRIOR TO AWARD THE CONTRACTING OFFICER CHECKED, AMONG OTHER THINGS, TO INSURE THAT NO PRICE BID, AFTER DEDUCTING THE AMOUNTS THE BIDDER STATED FOR TRANSPORTATION, MARKINGS, DATA PLATE, WARRANTY NOTICE, AND OTHER ADDITIONAL SYSTEMS AND EQUIPMENT, EXCEEDED THE STATUTORY LIMITATION OF $1,650 PROVIDED IN 31 U.S.C. 638; THAT IN THE CASE OF ITEM 27-E OF THE FORD BID, THE REMAINDER FOR THE SEDAN WAS $1,405; AND THAT ON ALL OTHER SEDAN ITEMS ON WHICH FORD BID, THE REMAINDER, OR PRICE OF THE BASIC VEHICLE EXCLUSIVE OF TRANSPORTATION, MARKINGS, DATA PLATE, WARRANTY NOTICE, AND ADDITIONAL SYSTEMS AND EQUIPMENT WAS $1,649. THE GENERAL COUNSEL ALSO STATES THAT IN VIEW OF THE CONTRACTING OFFICER'S DUTY TO CHECK "BASIC VEHICLE" PRICES BY REASON OF THE STATUTORY LIMITATION, AND THE $244 DISPARITY OF THE $1,405 "BASIC VEHICLE" PRICE FOR ITEM 27-E FROM THE $1,649 FIGURE FOR THE "BASIC VEHICLE" ON THE OTHER SEDAN ITEMS, IT IS HIS OPINION THAT THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF AN ERROR IN THE FORD BID PRIOR TO AWARD.

FROM THE FOREGOING, IT MAY BE CONCLUDED THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF PROBABLE ERROR IN THE FORD BID AND THAT VERIFICATION OF THE BID SHOULD HAVE BEEN REQUESTED BEFORE AWARD. UNDER THESE CIRCUMSTANCES, CONTRACT NO. GS-OOS-05480 MAY BE AMENDED TO PROVIDE FOR A UNIT PRICE OF $2,333 FOR ITEM 27-E, AS ADMINISTRATIVELY RECOMMENDED.

THE ENCLOSURE SUBMITTED WITH THE LETTER OF SEPTEMBER 3, 1971, IS RETURNED AS REQUESTED.