B-180424, FEB 13, 1974
Highlights
MAY HAVE CONTRACT CANCELLED WITHOUT LIABILITY. SINCE EVIDENCE ESTABLISHES THAT ERROR WAS MADE AND CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF POSSIBILITY OF ERROR BECAUSE OF DISCREPANCY BETWEEN LOW BID AND THREE OTHER BIDS RECEIVED FOR ITEM 430 AND ALSO SUBMITTED BY BIDDER FOR OTHER ACETYLENE ITEMS. TWENTY EIGHT OFFERS WERE RECEIVED BY THE BID OPENING DATE OF SEPTEMBER 28. THE LOW BID FOR ITEM 430 WAS SUBMITTED BY UNION CARBIDE CORPORATION (UNION CARBIDE) IN THE AMOUNT OF $0.0129 PER CUBIC FOOT. AWARD WAS MADE TO UNION CARBIDE ON NOVEMBER 14. ADVISED THAT IT DID NOT HAVE ANY WORKSHEETS FOR THE BID. IT SUBMITTED ITS PUBLISHED PRICE SCHEDULE FOR ACETYLENE WHICH SHOWED THAT THE LOWEST PRICE AT WHICH ACETYLENE WAS SOLD WAS $0.0305 PER CUBIC FOOT AND FURTHER STATED THAT IF IT HAD BID ON ITEM NO. 430.
B-180424, FEB 13, 1974
BIDDER, WHO ALLEGED MISTAKE IN BID AFTER AWARD OF ITEM 430 (ACETYLENE) AND WHO STATED THAT IT HAD INTENDED TO BID ON ITEM 429 (OXYGEN), MAY HAVE CONTRACT CANCELLED WITHOUT LIABILITY, SINCE EVIDENCE ESTABLISHES THAT ERROR WAS MADE AND CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF POSSIBILITY OF ERROR BECAUSE OF DISCREPANCY BETWEEN LOW BID AND THREE OTHER BIDS RECEIVED FOR ITEM 430 AND ALSO SUBMITTED BY BIDDER FOR OTHER ACETYLENE ITEMS.
TO UNION CARBIDE CORP.:
THE GENERAL SERVICES ADMINISTRATION (GSA) ISSUED SOLICITATION NO. GS 08- 1328 ON AUGUST 29, 1973, FOR 474 ITEMS OF MEDICAL AND INDUSTRIAL GASES FOR DELIVERY TO VARIOUS ACTIVITIES IN ARIZONA, COLORADO, NEW MEXICO, UTAH AND WYOMING. TWENTY EIGHT OFFERS WERE RECEIVED BY THE BID OPENING DATE OF SEPTEMBER 28, 1973.
ITEM 430 CONSISTED OF AN ESTIMATED QUANTITY OF 120,000 CUBIC FEET OF ACETYLENE FOR DELIVERY AT TOOELE ARMY DEPOT, UTAH. THE LOW BID FOR ITEM 430 WAS SUBMITTED BY UNION CARBIDE CORPORATION (UNION CARBIDE) IN THE AMOUNT OF $0.0129 PER CUBIC FOOT. AWARD WAS MADE TO UNION CARBIDE ON NOVEMBER 14, 1973. THEREAFTER, UNION CARBIDE ALLEGED THAT AN ERROR HAD BEEN MADE IN THE BID AND REQUESTED CANCELLATION OF THE AWARD.
UNION CARBIDE ALLEGED THAT IT HAD INADVERTENTLY INSERTED ITS BID FOR ITEM NO. 429 (9,760 CUBIC FEET OF OXYGEN) IN THE SPACE FOR ITEM NO. 430. ADVISED THAT IT DID NOT HAVE ANY WORKSHEETS FOR THE BID. IT SUBMITTED ITS PUBLISHED PRICE SCHEDULE FOR ACETYLENE WHICH SHOWED THAT THE LOWEST PRICE AT WHICH ACETYLENE WAS SOLD WAS $0.0305 PER CUBIC FOOT AND FURTHER STATED THAT IF IT HAD BID ON ITEM NO. 430, THE PRICE WOULD HAVE BEEN $0.0384 PER CUBIC FOOT.
THE OTHER BIDS FOR ITEM NO. 430 RECEIVED BY GSA WERE $0.0305, $0.0320 AND $0.0500 PER CUBIC FOOT. UNION CARBIDE SUBMITTED THE FOLLOWING ADDITIONAL BIDS FOR OXYGEN AND ACETYLENE UNDER THE SOLICITATION:
OXYGEN ACETYLENE
ITEM NO. 419 - $0.0159 ITEM NO. 406 - $0.0396
PER CUBIC FT. PER CUBIC FT.
ITEM NO. 435 - $0.0115 ITEM NO. 416 - $0.0310
PER CUBIC FT. PER CUBIC FT.
WHERE AN ERROR IN BID IS ALLEGED AFTER AWARD OF A CONTRACT, OUR OFFICE WILL GRANT RELIEF ONLY IF THE MISTAKE IS MUTUAL OR THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE ERROR PRIOR TO AWARD. COMP. GEN. 672 (1969). CONSTRUCTIVE NOTICE IS SAID TO EXIST WHEN THE CONTRACTING OFFICER, CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF A CASE, SHOULD HAVE KNOWN OF THE POSSIBILITY OF AN ERROR IN BID. 44 COMP. GEN. 383, 386 (1965).
BASED ON THE RECORD, IT APPEARS THE CONTRACTING OFFICER SHOULD HAVE BEEN ON NOTICE OF THE POSSIBILITY OF ERROR IN THE BID OF UNION CARBIDE DUE TO THE SUBSTANTIAL DISCREPANCY BETWEEN THAT BID AND THE OTHER BIDS RECEIVED FOR ITEM 430 AND ALSO THE OTHER BIDS SUBMITTED BY UNION CARBIDE FOR ACETYLENE. IN VIEW OF THE INFORMATION IN THE PUBLISHED PRICE SCHEDULE AND THE FACT THAT THE BID ON ITEM 430 FOR ACETYLENE WAS IN LINE WITH THE PRICES FOR OXYGEN, WE CONCUR WITH THE ADMINISTRATIVE CONCLUSION THAT THERE IS CLEAR AND CONVINCING EVIDENCE THAT A MISTAKE WAS MADE IN THE PREPARATION OF THE BID ON ITEM 430.
IN THE CIRCUMSTANCES, AS ADMINISTRATIVELY RECOMMENDED, THE CONTRACT FOR ITEM 430 MAY BE CANCELLED WITHOUT LIABILITY TO UNION CARBIDE.