B-175549, APR 27, 1972

B-175549, APR 27, 1972

CONTRACTS - ALLEGED ERROR IN BID CONCERNING AN ERROR OIL CAPITAL PRINTING CO., INC., ALLEGES IT MADE IN ITS BID ON THE GOVERNMENT PRINTING OFFICE MULTIPLE AWARD PROGRAM NO. 1702- M. RELIEF FROM AN ALLEGED MISTAKE IN BID WILL ONLY BE GRANTED WHEN THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD. 49 COMP. GEN. 272 (1969). IN THE INSTANT CASE, IT WOULD BE UNREASONABLE TO ATTRIBUTE TO THE CONTRACTING OFFICER A DUTY TO COMPARE ABOUT 260 UNIT PRICES STATED IN THE ORIGINAL BID AGAINST THOSE STATED IN THE BIDDER'S DUPLICATE SUBMITTED WITH THE ORIGINAL. ACCORDINGLY, THERE IS NO BASIS TO CONCLUDE THAT THE CONTRACT PRICE SHOULD BE ADJUSTED UPWARDS TO REFLECT CORRECTION OF THE ERROR.

TO MR. HARRY J. HUMPHREY:

WE REFER TO THE LETTER OF MARCH 22, 1972, FROM THE GENERAL COUNSEL REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR OIL CAPITAL PRINTING CO., INC., ALLEGES IT MADE IN ITS BID ON THE GOVERNMENT PRINTING OFFICE MULTIPLE AWARD PROGRAM NO. 1702-M.

THE BID FORM REQUIRED EACH BID TO BE SUBMITTED IN DUPLICATE. THE RECORD INDICATES THAT OIL CAPITAL SUBMITTED ITS PRICING SCHEDULE IN TRIPLICATE - THOUGH ONLY THE ORIGINAL AND DUPLICATE WERE FURNISHED TO US - EACH OF WHICH WAS INDIVIDUALLY FILLED OUT BY HAND. IN EVALUATING THE TOTAL AGGREGATE BID SUBMITTED BY EACH BIDDER, THE CONTRACTING OFFICER EVALUATED THE OIL CAPITAL BID BY USING THE PRICING SCHEDULE ATTACHED TO THE GPO FURNISHED BID AND ACCEPTANCE FORM UPON WHICH GPO HAD PREPRINTED "ORIGINAL." EVALUATION OF ALL BIDS RESULTED IN THE FOLLOWING RANGE OF AGGREGATE PRICES:

F. L. MOTHERAL $236,502.00

THE HURLEY CO., INC. 285,219.74

SHEEGOG PRINTING CO. 308,060.23

SPRINT PRESS, INC. 312,072.20

DEMOCRAT PRINTING & LITHO CO. 323,729.56

OIL CAPITAL PRINTING CO., INC. 331,801.47

J. G. HAUSER, INC. 336,774.02

LITHO PRESS, INC. 371,534.55

IMPRESS, INC. 491,466.41

SUBSEQUENTLY, A PURCHASE ORDER WAS ISSUED TO OIL CAPITAL ON AUGUST 1, 1971, AS THE SIXTH LOW SEQUENTIAL BIDDER. BY LETTER OF FEBRUARY 16, 1972, THE CONTRACTOR ADVISED THE GOVERNMENT PRINTING OFFICE'S REGIONAL OFFICE THAT AN ERROR HAD OCCURRED IN FILLING IN ITS QUOTE FOR ITEM II, NO. 5 ON CATEGORY II OF THE BID. ON TWO OF THE PRICING SCHEDULES SUBMITTED, OIL CAPITAL QUOTED $.30 FOR DRILLING PER 1,000 LEAVES. ONE OF THESE PRICING SCHEDULES WAS ATTACHED TO THE GPO FURNISHED BID AND ACCEPTANCE FORM UPON WHICH GPO HAD PREPRINTED "DUPLICATE." HOWEVER, ON THE PRICING SCHEDULE THAT WAS ATTACHED TO THE "ORIGINAL" BID AND ACCEPTANCE FORM, OIL CAPITAL QUOTED $.03 PER 1,000 LEAVES. IT WAS THIS BID OF $.03 THAT THE CONTRACTING OFFICER USED IN EVALUATING THE OIL CAPITAL BID. THE CONTRACTOR CONTENDS THAT THE LATTER PRICE WAS AN INADVERTENCE AND REQUESTS THAT IT BE PAID ON THE BASIS OF ITS INTENDED $.30 BID.

THE QUESTION FOR CONSIDERATION IS WHETHER THE AWARD TO OIL CAPITAL ON THE BASIS OF THE PRICING SCHEDULE SUBMITTED WITH THE ORIGINAL BID AND ACCEPTANCE FORM, I.E., THAT SCHEDULE SHOWING A BID PRICE OF $.03 PER 1,000 LEAVES, RESULTED IN A VALID AND BINDING CONTRACT. WE ARE OF THE OPINION THAT OIL CAPITAL IS CONTRACTUALLY OBLIGATED TO PERFORM AT ITS BID PRICES INCLUDING THE $.03 PRICE PER 1,000 LEAVES FOR PAPER DRILLING. IN CASES WHERE A MISTAKE IS ALLEGED AFTER AWARD OF A CONTRACT, OUR OFFICE WILL GRANT RELIEF ONLY IF THE MISTAKE WAS MUTUAL OR THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD. 49 COMP. GEN. 272 (1969). THERE IS NO EVIDENCE HERE THAT THE CONTRACTING OFFICER WAS ON ACTUAL NOTICE OF THE ERROR. IN VIEW OF THE FACT THAT THE PRICES FOR PAPER DRILLING RANGED FROM "NO CHARGE" (ONE BIDDER IN ADDITION TO OIL CAPITAL QUOTED $.03 PER 1,000 LEAVES) TO $1.50 PER 1,000 LEAVES, WE CANNOT CONCLUDE THAT THE CONTRACTING OFFICER WAS ON CONSTRUCTIVE NOTICE OF ERROR. IT WOULD BE UNREASONABLE - WHEN AWARD IS TO BE MADE IN THE AGGREGATE - TO ATTRIBUTE TO THE CONTRACTING OFFICER A RESPONSIBILITY TO COMPARE ABOUT 260 UNIT PRICES STATED IN THE ORIGINAL BID AGAINST THOSE STATED IN THE BIDDER'S DUPLICATE SUBMITTED WITH THE ORIGINAL. WE FEEL THAT THE CONTRACTING OFFICER MAY PROPERLY ASSUME THAT A DUPLICATE BID IS IDENTICAL TO THE ORIGINAL BID.

ACCORDINGLY, WE FIND NO BASIS TO CONCLUDE THAT THE CONTRACT PRICE SHOULD BE ADJUSTED UPWARDS TO REFLECT CORRECTION OF THE ERROR.