B-174130, DEC 21, 1971

B-174130, DEC 21, 1971

CONTRACT - RELIEF FROM MISTAKE DENIED - AGGREGATE BIDDING DENIAL OF REQUEST BY GOODWAY, INC., FOR RELIEF FROM AN ERROR ALLEGED TO HAVE BEEN MADE IN CATEGORIES II AND III OF A BID SUBMITTED UNDER AN IFB ISSUED BY THE GOVERNMENT PRINTING OFFICE, FOR THE PRINTING AND BINDING OF DEFENSE INDUSTRIAL SUPPLY CENTER CATALOGS AS REQUIRED DURING THE PERIOD MAY 1, 1971, THROUGH APRIL 30, 1972. WHERE AWARD IS TO BE MADE ON THE BASIS OF THE LOWEST AGGREGATE COST FOR EACH CATEGORY, A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS. SEE 17 COMP. GEN. 534 (1937). FURTHER, THE DIFFERENCE BETWEEN GOODWAY'S BID AND THE NEXT LOWEST BID WAS NOT SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE MISTAKE.

TO GOODWAY, INC.:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 16 AND OCTOBER 18, 1971, WITH ENCLOSURES, REQUESTING RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN CATEGORIES II AND III OF YOUR BID WHICH WERE SUBMITTED IN RESPONSE TO AN INVITATION COVERING JACKET NO. 25597.

THE GOVERNMENT PRINTING OFFICE (GPO) REQUESTED BIDS UNDER JACKET NO. 25597 (GPO PROGRAM 1230-M) FOR THE PRINTING AND BINDING OF DEFENSE INDUSTRIAL SUPPLY CENTER CATALOGS AS REQUIRED BY THE CENTER DURING THE PERIOD MAY 1, 1971, THROUGH APRIL 30, 1972. THE WORK TO BE PERFORMED WAS DIVIDED INTO THREE CATEGORIES AND PROSPECTIVE BIDDERS WERE ADVISED THAT BIDS WOULD BE CONSIDERED IN THE AGGREGATE FOR EACH CATEGORY. BIDDERS WERE NOT REQUIRED TO BID ON ALL CATEGORIES, BUT THEY WERE REQUIRED TO BID ON ALL ITEMS WITHIN A CATEGORY. THE BASIS OF AWARD USED TO EVALUATE THE RELATIVE STANDING OF ALL BIDDERS WITHIN A CATEGORY WAS A SELECTED GROUP OF PRODUCTION ITEMS AS APPLIED TO AN ESTIMATED 3 MONTHS' PRODUCTION UNDER THE PROGRAM.

FOR THE CATEGORIES IN QUESTION, 15 RESPONSIVE BIDS WERE RECEIVED ON CATEGORY II AND 16 RESPONSIVE BIDS WERE RECEIVED ON CATEGORY III. THE LOWEST AGGREGATE BIDS ON CATEGORIES II AND III IN THE AMOUNTS OF $21,065.97 AND $17,616.66, RESPECTIVELY, WERE SUBMITTED BY YOUR FIRM. YOUR BIDS AS TO CATEGORIES II AND III WERE ACCEPTED ON APRIL 29, 1971.

IN YOUR LETTER OF SEPTEMBER 16, 1971, YOU ALLEGE THAT ERRORS WERE MADE IN COMPUTING THE BID PRICES FOR ITEMS 2(A) AND (B), 3(A) AND (B) AND 5(A) AND (B) OF CATEGORIES II AND III. YOU STATE THAT THE PRICE REQUESTED FOR ITEM 2(B) OF CATEGORY II WHICH COVERED ADDITIONAL 1,000 COPIES OF A COMPLETE 16 -PAGE PAMPHLET WAS TO INCLUDE INK, PRESS RUN, FOLDING, TRIMMING, STITCHING AND PAPER FOR A BOOK THAT IS 8-3/8 INCHES X 10-3/4 INCHES. YOU MAINTAIN THAT IT IS OBVIOUS THAT YOUR BID PRICE OF $13.12 FOR ITEM 2(B) OF CATEGORY II IS IN ERROR SINCE THE COST OF THE PAPER ALONE IS $14.07. YOU STATE THAT THE 14 OTHER BIDDERS ON ITEM 2(B) OF CATEGORY II QUOTED PRICES RANGING FROM $16 TO $48. YOU CONTEND THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF AN ERROR IN YOUR BID BECAUSE (1) YOUR FIRM'S BID PRICE WAS 42 PERCENT LOWER THAN THE AVERAGE PRICE OF $22.33 QUOTED BY THE OTHER BIDDERS, (2) YOUR FIRM'S BID PRICE WAS 27 PERCENT LOWER THAN THE MEAN PRICE ($18.14) FOR THE MIDDLE SEVEN BIDDERS, AND (3) YOUR FIRM'S BID PRICE WAS 31 PERCENT LOWER THAN THE PRIOR YEAR'S CONTRACT PRICE OF $19. YOU REQUEST THAT THE CONTRACT BE CANCELED WITHOUT LIABILITY TO YOUR CORPORATION.

YOU HAVE ALLEGED ERROR AS TO YOUR BID PRICES FOR ITEMS 2(A) AND (B), 3(A) AND (B) AND 5(A) AND (B) OF CATEGORIES II AND III AND YOU HAVE SELECTED ITEM 2(B) OF CATEGORY II AS AN EXAMPLE. ASSUMING THAT A SUBSTANTIAL DIFFERENCE EXISTED BETWEEN YOUR BID AND THE OTHER BIDS ON THE ITEMS IN QUESTION, THAT IS NOT CONTROLLING UNDER THE CIRCUMSTANCES OF THIS CASE. THE INVITATION FOR BIDS PROVIDED THAT AWARD WAS TO BE MADE ON THE BASIS OF THE LOWEST AGGREGATE COST FOR EACH CATEGORY. IT HAS BEEN HELD THAT A CONTRACTING OFFICER IS NOT UNDER A DUTY TO COMPARE BID PRICES ON INDIVIDUAL ITEMS WHERE AWARD IS TO BE MADE IN THE AGGREGATE. SEE 17 COMP. GEN. 534 (1937); 42 ID. 383 (1963); 47 ID. 365 (1968); AND ALLIED CONTRACTORS, INC. V UNITED STATES, 159 CT. CL. 548 (1962). FURTHER, THE GOVERNMENT PRINTING OFFICE HAS REPORTED THAT THE PRICE DIFFERENCES IN THE AGGREGATE COST OF CATEGORIES II AND III DO NOT INDICATE AN ERROR IN YOUR BID. IN THAT REGARD, YOUR AGGREGATE COST FOR CATEGORY II WAS ONLY 7.8 PERCENT LOWER THAN THE NEXT LOWEST AGGREGATE COST ON THAT CATEGORY AND THERE WAS ONLY A 7.3 PERCENT DIFFERENCE BETWEEN YOUR AGGREGATE COST FOR CATEGORY III AND THE NEXT LOWEST AGGREGATE COST ON THAT CATEGORY. CONCUR THAT THE DIFFERENCE BETWEEN YOUR AGGREGATE COST ON CATEGORIES II AND III AND THAT OF OTHER BIDDERS WAS NOT SUFFICIENTLY GREAT TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE CLAIMED MISTAKE.

ATTENTION IS INVITED TO THE CASE OF ALLIED CONTRACTORS, INC. V UNITED STATES, SUPRA. IN THAT CASE THE INVITATION FOR BIDS PROVIDED THAT THE WORK INVOLVED WOULD "BE AWARDED AS A WHOLE TO ONE BIDDER." THERE WAS A GREAT DISCREPANCY BETWEEN THE PLAINTIFF'S BID AND THE OTHER BIDS ON ONE ITEM. HOWEVER, THE COURT FOUND THAT THE VARIANCE WAS NOT SUCH AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF ERROR SINCE HIS ATTENTION WAS DIRECTED PRIMARILY TO THE OVERALL BID, AND THERE WAS NOTHING TO MAKE THE CONTRACTING OFFICER SUSPECT A MISTAKE HAD BEEN MADE AND THE PLAINTIFF'S PETITION WAS DISMISSED.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID IS UPON THE BIDDER. FRAZIER-DAVIS CONSTRUCTION COMPANY V UNITED STATES, 100 CT. CL. 120, 163 (1943). WHILE IT MAY BE THAT AN ERROR WAS MADE IN THE BID, SUCH ERROR WAS DUE SOLELY TO YOUR OWN OVERSIGHT OR NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL - NOT MUTUAL - AND THEREFORE DOES NOT ENTITLE YOU TO RELIEF. SEE EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT. CL. 249 (1944). SEE 47 COMP. GEN. 365, 368 (1968); 40 ID. 326, 332 (1960).

ACCORDINGLY, NO LEGAL BASIS EXISTS FOR RELIEVING YOU FROM YOUR OBLIGATION TO PERFORM UNDER THE CONTRACT AT THE PRICES STIPULATED THEREIN.