UNITED STATES GOVERNMENT PRINTING OFFICE
CONTRACT APPEALS BOARD

Appeal of Citiplate, Inc.
Appeal dated January 23, 1984
Decision dated May 4, 1984

Contract Appeals Board
Panel 4-84

Thomas 0. Magnetti, Chairman
Paul J. Barlow
Donald P. McCaughan
Members

PRELIMINARY STATEMENT

   Citiplate, Inc. (hereafter the contractor) has appealed the
   decision of the Contracting Officer of the U.S. Government
   Printing Office (GPO) which rejected the contractor's claim of
   a post-award mistake in bid.  The contractor's appeal was
   filed in accordance with the "Disputes" clause of the General
   Provisions of the contract.  Exhibit 2 of the Appeal File,
   Clause 31.  As this appeal entails a request for contract
   reformation because of an alleged post-award mistake in bid,
   the GPO Contract Appeals Board has jurisdiction over the
   appeal.  GPO Instruction 110.10B, entitled "Board of Contract
   Appeals Rules of Practice and Procedure"; see also, the above-
   cited "Disputes" clause.  The contractor was given an
   opportunity to have its appeal heard at an informal hearing
   but did not so request.  Therefore, this decision is based
   solely on the record which consists of the appeal filed by the
   contractor and the Appeal File, containing 8 exhibits.

   Solicitation No. 20209 invited prospective contractors to bid
   on a contract to supply the GPO with 30,000 aluminum anodized
   offset printing plates.  Exhibit 2.  The contractor submitted
   a bid on the contract, dated November 21, 1983.  Exhibit 3.
   The bid contained a unit price of $6.19 for the plates and an
   overall cost of $185,700.  Id.  By letter dated December 19,
   1983, the contractor confirmed the bid it had submitted.
   Exhibit 7.  As the contractor was the lowest, responsive, and
   responsible bidder, it was awarded the contract on December
   23, 1983.  Exhibit 5.  On January 4, 1984, the contractor
   notified the GPO that it had incorrectly calculated the cost
   of aluminum when it submitted its bid.  Exhibit 6.  The
   contractor requested that its bid be amended to reflect a unit
   price of $6.66 for the aluminum.  This higher price was
   necessitated by a rise in the cost of aluminum of lithographic
   sheets from $1.13 to $1.313.  Id.  The GPO denied the
   contractor's request, terming it a post-award mistake in bid
   which, according to the GPO had not been substantiated.
   Exhibit 8.  The contractor was not allowed to correct or
   withdraw its bid. Id.

   The contractor appealed the decision of the Contracting
   Officer by letter dated January 23, 1984.  In that appeal the
   contractor alleged that it had calculated its original price
   in error, and asked that its bid be amended to reflect the
   increased price in aluminum.  In the appeal the contractor
   also asked that the contract delivery schedule be adjusted. 1/

DECISION

   The evidence that the contractor has submitted indicates that
   it was notified in November 1983 of an increase in the cost of
   aluminum that would take effect in January 1984.  Exhibit 6.
   The bid it submitted was dated after the notification of the
   price increase.  Exhibit 3.  The price increase should have
   been factored into the bid price.  However, the contractor has
   alleged that it miscalculated the price of the contract
   because it did not factor in the increased cost of aluminum.
   Exhibit 6.  As the contract has been awarded, the contractor
   is alleging a post award mistake in bid.

   In order to prove a mistake in bid after the contract has been
   awarded, a contractor must prove, by clear and convincing
   evidence, that the mistake was mutual or. if the mistake was
   made unilaterally by the contractor, it was so apparent as to
   have charged the Contracting Officer with notice of the
   probability of a mistake when the bid was accepted.  See
   Federal Acquisition Regulations (FAR), Subpart 14.2, 
   14.406-4, September 1983.  A mutual mistake is one that was
   made by the Government and the contractor when the contract
   was entered into.  Restatement, Contracts 2d  152 (1981).

   The evidence indicates that the GPO did not make a mistake as
   to the contract or its interpretation.  Therefore, if a
   mistake were made, it must be deemed to be unilateral.  The
   contractor can recover for unilateral mistakes only when the
   Contracting Officer had constructive notice of the mistake.
   Wender Presses, Inc. v. United States, 170 Ct. Cl. 483 (1965).
   The test of what a Contracting Officer should have known must
   be reasonableness -- whether there are factors which
   reasonably should have raised the presumption of error in the
   mind of the Contracting Officer.  Such factors might be a
   disparate or wide range of bids or a variation in the general
   pattern of bids.  Chernick v. United States, 178 Ct. Cl. 498,
   504 (1967).

1/ Although the contractor requests relief from the delivery
schedule, this Board cannot order any such relief.  The
contractor has not alleged or proven that it made a mistake when
it bid on the contract and agreed to the delivery schedule.
Therefore, its bid as it relates to compliance with the delivery
schedule cannot be considered a post-award mistake in bid.
Furthermore, there is no indication in the record that a dispute
arose relating to the delivery schedule.  If there has been no
dispute and no final decision from the Contracting Officer
deciding the dispute, the Board is without authority to make a
ruling regarding compliance with the delivery schedule.

   In the instant case, if there were a mistake in bid, the
   record does not indicate that it was so apparent that the
   Contracting Officer was aware or should have been aware of the
   error.  This contractor was not the lowest bidder.  Another
   contractor had submitted a lower price for the plates but was
   deemed to be nonresponsive because it could not deliver the
   plates in accordance with the contract schedule.  Exhibit 4.
   .There is only 6% difference in the contractor's price and the
   next bid in the sequence of bids.  Id.  Moreover, the price
   per unit submitted by the contractor was $.47 higher than the
   unit price for the same product procured in March of 1983.
   Exhibit 1.  Another indication that the Contracting Officer
   did not have notice of a mistake in bid is the fact that the
   contractor's bid did not indicate the cost of aluminum in its
   unit price of $6.19.  Exhibit 3.  Without such information
   there would have been no way for the Contracting Officer to
   know that the contractor's price for aluminum was below the
   market price.  It should also be noted that the contractor
   verified its bid prior to award.  Exhibit 7.  Clearly, there
   was no notice, constructive or otherwise to the GPO that the
   contractor had made a mistake in its bid.

   Assuming arguendo  that the Contracting Officer should have
   been aware of a mistake in bid, the contractor has failed to
   submit evidence that would support the conclusion that it had
   made a mistake in its bid.  In order to obtain relief, a
   contractor must provide evidence that would establish the
   mistake, the manner in which the mistake occurred, and the bid
   actually intended.  See FAR,  14.406-4(e).  The only
   documents submitted by the contractor in support of its appeal
   are letters from the supplier of the aluminum and a cost sheet
   comparing the original bid price and the amended bid price.
   Exhibit 6.

   Although the contractor has submitted the price lists of its
   aluminum supplier, it has not submitted any documents, which
   were generated at the same time it submitted its bid (the
   original worksheets or other data used to prepare the bid)
   that would indicate that the contractor's original bid did not
   factor in the higher cost of aluminum.  There is no evidence
   that would demonstrate mathematical, clerical, or
   typographical error.  The document which the contractor has
   entitled "Cost Sheet" although undated, was clearly generated
   after the alleged mistake was discovered.  This does not prove
   that a mistake was actually made, the manner in which the
   mistake occurred, or the bid actually intended.  Without clear
   and convincing evidence of a mistake in bid, this Board cannot
   allow reformation of the contract.

   Under some circumstances, relief can be granted if it would be
   unconscionable to hold a contractor to the terms of the
   contract.  Restatement, Contracts 2d  153 (1981).  However,
   the contractor cannot invoke "unconscionability" by arguing
   that performance of the contract creates an economic hardship.
   The contractor must prove that the GPO was aware that it was
   taking advantage of the contractor when the contract was
   entered into.  Omni Research, Inc., Comp. Gen. Dec. B-186301,
   77-1 CPD  10 (1977).  There is no indication of this in the
   record.  As

stated above, the evidence demonstrates that the contractor's bid
was reasonable and the GPO bad no reason to believe that the
contractor had made a mistake in his bid when it awarded the
contract.

   The contract at issue is a firm, fixed price contract.  It
   contains no provision for an escalation in the contract price
   if the contractor is faced with increased costs.  Exhibit 2.
   Without such a clause, the risk of a price increase is on the
   contractor.  B & W Press, GPO CAB No. 9-83 (March 8, 1984).

   Accordingly, the Board denies the contractor's appeal in its
   entirety.