Skip to main content

B-176314, DEC 4, 1972

B-176314 Dec 04, 1972
Jump To:
Skip to Highlights

Highlights

FOR AN ADDITIONAL AMOUNT AS A RESULT OF AN ERROR ALLEGED IN CONNECTION WITH THE BID UPON WHICH A CONTRACT FOR LANDSCAPE SERVICES WAS AWARDED TO IT BY THE DEPARTMENT OF THE ARMY. THE GOVERNMENT MAY NOT TAKE ADVANTAGE OF A MISTAKE THAT IS DUE TO THE CARELESSNESS OF THE BIDDER. 36 COMP. SINCE THERE IS CLEAR AND CONVINCING EVIDENCE OF THE EXISTENCE OF AN ERROR AND NELSON'S BID IS STILL THE LOWEST OF ALL BIDS RECEIVED. SECRETARY: REFERENCE IS MADE TO LETTER DAEN-GCC DATED JUNE 21. DACW67-72-C-0063 WAS BASED. 850 WAS THE LOWEST RECEIVED. THE GOVERNMENT ESTIMATE AND THE THREE OTHER BIDS RECEIVED WERE IN THE AMOUNTS OF $67. A TELEGRAPHIC MODIFICATION WAS RECEIVED WHICH HAD BEEN FILED WITH WESTERN UNION MORE THAN TWO AND A HALF HOURS BEFORE INCREASING THE NELSON BID BY $11.

View Decision

B-176314, DEC 4, 1972

CONTRACT - MODIFICATION - MISTAKE IN BID - LATE MODIFICATION - BIDDER CARELESSNESS DECISION ALLOWING THE CLAIM OF NELSON LANDSCAPE SERVICE, INC., FOR AN ADDITIONAL AMOUNT AS A RESULT OF AN ERROR ALLEGED IN CONNECTION WITH THE BID UPON WHICH A CONTRACT FOR LANDSCAPE SERVICES WAS AWARDED TO IT BY THE DEPARTMENT OF THE ARMY. A TELEGRAM RECEIVED TOO LATE TO BE CONSIDERED A BID MODIFICATION MAY BE CONSIDERED AS EVIDENCE IN ESTABLISHING THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. B-165434, DECEMBER 2, 1968. MOREOVER, THE GOVERNMENT MAY NOT TAKE ADVANTAGE OF A MISTAKE THAT IS DUE TO THE CARELESSNESS OF THE BIDDER. 36 COMP. GEN. 441, 444 (1956). ACCORDINGLY, SINCE THERE IS CLEAR AND CONVINCING EVIDENCE OF THE EXISTENCE OF AN ERROR AND NELSON'S BID IS STILL THE LOWEST OF ALL BIDS RECEIVED, THE CONTRACT MAY BE AMENDED TO REFLECT THE INTENDED BID PRICE.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTER DAEN-GCC DATED JUNE 21, 1972, WITH ENCLOSURES, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, FORWARDING FOR DECISION THE CLAIM OF NELSON LANDSCAPE SERVICE, INC., FOR AN ADDITIONAL $11,000 AS A RESULT OF AN ERROR ALLEGED IN CONNECTION WITH LANDSCAPE SERVICES UPON WHICH CONTRACT NO. DACW67-72-C-0063 WAS BASED.

THE NELSON BID IN THE AMOUNT OF $44,850 WAS THE LOWEST RECEIVED. THE GOVERNMENT ESTIMATE AND THE THREE OTHER BIDS RECEIVED WERE IN THE AMOUNTS OF $67,245, $73,265, $148,215, AND $169,900, RESPECTIVELY. ABOUT A HALF HOUR AFTER BID OPENING, A TELEGRAPHIC MODIFICATION WAS RECEIVED WHICH HAD BEEN FILED WITH WESTERN UNION MORE THAN TWO AND A HALF HOURS BEFORE INCREASING THE NELSON BID BY $11,000. THE TELEGRAM WAS DETERMINED TO BE AN UNACCEPTABLE LATE BID MODIFICATION UNDER PARAGRAPH 2-303-4 OF THE ARMED SERVICES PROCUREMENT REGULATION. HOWEVER, IN VIEW OF THE DISPARITY IN PRICE BETWEEN THE UNMODIFIED BID, OTHER BIDS RECEIVED AND THE GOVERNMENT ESTIMATE, NELSON WAS REQUESTED TO REVIEW ITS BID TO ASCERTAIN WHETHER IT WAS ERRONEOUS.

MR. NELSON SUBSEQUENTLY ADVISED THAT HE ORIGINALLY BID ON THE ASSUMPTION THAT THE WORK COVERED AN ORDINARY JOB, BUT THAT AFTER EXAMINATION OF THE SITE HE FOUND THAT MORE WORK AND LABOR WERE REQUIRED THAN ORIGINALLY ANTICIPATED. ALONG WITH THE ADVICE, HE FURNISHED THE COMPUTATIONS UPON WHICH THE $11,000 INCREASE WAS BASED.

THE MATTER WAS REFERRED TO THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, WHO FOUND IN PERTINENT PART AS FOLLOWS:

"1. *** OCE WAS ADVISED THAT MR. NELSON HAD PREPARED HIS $44,850.00 BID IN HIS OFFICE ON THE BASIS OF EXPERIENCE WITHOUT INSPECTING THE JOB SITE AND ONLY LOOKED AT THE SITE AFTER HE HAD SUBMITTED SUCH BILL. UPON INSPECTING THE SITE, HE DETERMINED THAT ADDITIONAL WORK WOULD BE INVOLVED AND SUBMITTED TELEGRAPHIC MODIFICATIONS WHICH WAS NOT RECEIVED ON TIME.

"2. THE ABOVE INFORMATION DOES NOT PROVIDE ANY BASIS UNDER WHICH THIS OFFICE, THROUGH THE MISTAKE IN BID PROCEDURE, COULD AUTHORIZE ANY ADJUSTMENT OF THE BID AMOUNT SUBMITTED BY THE NELSON LANDSCAPE SERVICES, INC. THEREFORE, THE REQUESTED AUTHORITY TO CORRECT THE BID MUST BE DENIED."

THEREAFTER, THE CONTRACT WAS AWARDED TO NELSON IN THE AMOUNT OF THE ORIGINAL BID PRICE, WHEREUPON NELSON EXECUTED THE CONTRACT AND BONDS AND AGREED TO COMMENCE PERFORMANCE WITH THE UNDERSTANDING THAT IT WOULD NOT AFFECT ITS RIGHT TO PURSUE THE CLAIM OF ERROR.

IN TREATING NELSON'S REQUEST FOR CORRECTION AS A MISTAKE IN A BID CASE, THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, PURSUANT TO THE AUTHORITY DELEGATED TO HIM BY ASPR 2-406.3(B)(1), HAS CONCLUDED THAT THE LATE TELEGRAPHIC BID MODIFICATION WHICH WAS THE ONLY MATERIAL EVIDENCE FURNISHED BY NELSON, WAS INADEQUATE TO PROVE NELSON'S INTENDED BID PRICE AND THAT TO PERMIT CORRECTION SOLELY ON THE BASIS OF THE UNSUCCESSFUL MODIFICATION WOULD CIRCUMVENT THE INTENT OF THE ASPR PROHIBITION AGAINST ACCEPTING LATE TELEGRAPHIC BID MODIFICATIONS.

IT IS TRUE THAT WE ARE PRECLUDED BY THE REGULATIONS PERTAINING TO LATE BID MODIFICATIONS FROM CONSIDERING THE TELEGRAM OF MARCH 30, 1972, AS A BID MODIFICATION INCREASING NELSON'S BID BY $11,000. HOWEVER, WE HAVE HELD THAT A TELEGRAM RECEIVED TOO LATE TO BE CONSIDERED AS A BID MODIFICATION MAY BE CONSIDERED AS EVIDENCE IN ESTABLISHING THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. B-165434, DECEMBER 2, 1968, AND B-170311, JUNE 3, 1971. THE FACT THAT A BIDDER'S MISTAKE IS DUE TO CARELESSNESS DOES NOT ENTITLE THE GOVERNMENT TO TAKE ADVANTAGE OF THE MISTAKE. 36 COMP. GEN. 441, 444 (1956); B-155268, OCTOBER 22, 1964. THE PRESENT CASE, WE BELIEVE THE LATE MODIFICATION OF PRICE, WHICH WAS SENT PRIOR TO BID OPENING AND WAS RECEIVED ONLY 32 MINUTES LATE, WHEN CONSIDERED IN CONJUNCTION WITH THE OTHER EVIDENCE OF RECORD, IS ADEQUATE TO ESTABLISH BOTH THE EXISTENCE OF A MISTAKE AND THE INTENDED BID PRICE.

IN VIEW THEREOF, WE CONCLUDE THAT THERE IS CLEAR AND CONVINCING EVIDENCE THAT NELSON'S INTENDED BID WAS $55,850, RATHER THAN $44,850. SINCE NELSON'S INTENDED BID IS STILL THE LOWEST OF ALL BIDS RECEIVED, CONTRACT NO. DACW67-72-C-0063 MAY BE AMENDED TO REFLECT NELSON'S INTENDED BID PRICE OF $55,850.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT TO THE CONTRACT.

GAO Contacts

Office of Public Affairs