U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
Appeal of Atlantic Research Corporation
Docket No. GPO BCA 22-87
July 10, 1989
Michael F. DiMario
Administrative Law Judge
Opinion
This appeal, timely filed by Atlantic Research Corporation,
5390 Cherokee Avenue, Alexandria, VA 22314 (Appellant), is
from the final decision of G.W. Watson, Contracting Officer
(CO), United States Government Printing Office (Respondent),
denying Appellant's request for an upward adjustment in the
price of its contract with Respondent identified as GPO
Jacket No. 192-569 made upon the requisition of the United
States Postal Service. The decision of the CO is affirmed
for the reason set forth hereinbelow.
Background
On September 22, 1987, Respondent, pursuant to the
requisition of the United States Postal Service, issued an
Invitation for Bids (IFB) for the production of some 50,280
copies of a publication entitled "Ben Franklin Stamp Club
Activity Guide, Pub. 13, 11-87" kits. The invitation was
sent to some 18 potential bidders including Appellant. Bid
opening was stated in the IFB as 11 a.m. prevailing
Washington, DC time, September 25, 1987. (Rule 4 File,
hereinafter "R4 File," Tab A.) Appellant made a timely
telephone bid on September 25th which was date stamped by
the GPO Purchase Division as being received precisely at 11
a.m. (R4 File, Tab C.) An examination of bids revealed
that while Appellant at $30,407 and $54.50 additional per
thousand was the low bidder, it was so significantly below
the next lowest bid of Cascio-Wolf, Inc. at $48,800 and $970
per $1,000 as to suggest a possible error in bid. (R4 File,
Tab C, sheets 1 and 3.) Accordingly, Respondent's Contract
Administrator, Jon R. Carr, telephoned Appellant on or about
September 28, 1987, before award, and spoke to a Bernie
Wolfson. Carr pointed out to Wolfson that Appellant's bid
was approximately "$18,400 lower than the next bidder and
that product was a kit folder with a pamphlet saddle
stitched at the center fold." In response Wolfson stated
that he could not see any errors and that a confirming
letter would follow. (R4 File, Tab D.)
Based upon this oral confirmation and an analysis of prices
paid for comparable work under Jacket No. 169-148 on
December 12, 1986, Jacket No. 171-076 on December 12, 1986,
and Jacket No. 171-340 in January 1987, Carr determined that
Appellant's price was fair and reasonable. Accordingly,
Purchase Order No. 66640 was issued to Appellant on
September 28, 1987, awarding the contract in strict
accordance with Appellant's bid of September 25, 1987, and
Respondent's specifications. (R4 File, Tab F.)
Appellant picked up the order from Respondent on September
30, 1987, whereupon its Mr. Patrick Peartree, Assistant
Estimator, examined the job and specifications and thereby
noticed that Appellant had made a substantial error in its
bid. He immediately notified Carr that the quotation was
incorrect and asked that Appellant's letter of confirmation
that would be arriving in the mail in the near future be
ignored. He was told of the procedure necessary to have a
post-award mistake in bid considered, including the need for
an affidavit attesting to the mistake.
By affidavit dated October 1, 1987, filed with GPO Contract
Specialist James Markley, Wolfson, supra, identified himself
as Appellant's Manager of Estimating and Planning, and
stated that:
2. [T]he bid submitted by Atlantic Research Corp. on GPO Jacket
192-569 was in error in the following respects.
a. I neglected to notice that the cover was to be die cut and
glued to include a pocket.
b. Because the cover does have a pocket, I did not allow enough
stock to do the job.
3. This error occurred due to an oversight in reading the
specification.
4. [T]he attached worksheets [sic] are the original worksheets
used to prepare the bid and have not been altered.
5. Our original quotation of $30,407. should have been $37,704.
6. [T]he bid be corrected to $37,704.
R4 File, Tab H.
After first having the affidavit and work sheets reviewed by
the CO, Markley reported to Respondent's Contract Review
Board that the CO found the error to be substantiated "but
not the actual bid [of $37,704 claimed to have been]
intended." However, the CO believed the error to be
unilateral on the part of Appellant. He also believed "his
obligation was fulfilled when Atlantic Research was asked to
review and confirm its bid which they did as being correct."
Markley asked for the Board's concurrence in the CO's
determination that no change be made in the contract price.
The concurrence was unanimously given.
Thereafter, by final decision letter of the CO dated October
14, 1987, Appellant was notified that:
There is no evidence to suggest the Government contributed in
any way to the asserted error, i.e., the error was unilateral.
The record establishes that the Government did all that was
required of it to ascertain the correctness of the bid when
you were requested to review and confirm bid price, in view of
the significant variation between it and the other bid
received. It was not until after you expressed the desire to
accept the contract at the price submitted that the
contracting officer considered the bid proper for award.
Under the circumstances the award consummated a valid and
binding contract which fixed the rights and liabilities of the
parties. There is consequently no legal basis for increasing
the price as requested.
R4 File, Tab J.
Thereafter, Appellant by letter of October 30, 1987,
appealed to this Board stating for its cause of action that:
1) We notified Mr. Carr of the error prior to his receipt of the
written confirmation, but, unfortunately, the letter had entered
the U.S. Mail and was not retrievable.
2) This was simply an honest, human error.
3) Even with the requested amount, our bid is still $11,096.00
lower than the next bidder and, lastly,
4) We, in our long history with the Government Printing Office,
have never had reason to make this type of appeal before.
Official File, Tab 1.
No formal complaint or answer was received in the case.
However, a general denial on behalf of the Government was
entered in the record by the Board on February 22, 1988,
pursuant to Rule 6.(b) of GPO Instruction 110.12 dated
September 17, 1984, with Appellant being so notified.
The case is now before the Board in this format for
decision.
Discussion
There is no dispute between the parties concerning any
question of fact related to the contract. The single issue
of whether or not an upward adjustment in contract price is
warranted based upon a post-award discovery by a bidder that
it has made a unilateral mistake in its bid, is within the
exclusive discretion of the CO. A CO may not exercise such
discretion unless both the mistake and the bid price which
the bidder actually intended to make have been independently
verified, the bid price so intended is lower than the next
lowest bid, and correction of the mistake would make the
contract more favorable to the Government. Here, it is
abundantly clear that the CO did everything in his power to
assure that the bidder was treated fairly and in accordance
with established procedure. When it appeared after bid
opening that Appellant might have made a mistake, Appellant
was asked to verify its bid with the added advice respecting
the complex nature of the contract. After discovery of the
mistake, Appellant was asked to supply the affidavit and
pricing work sheets it had used. The CO analyzed the
results with his discretionary authority in mind, finding no
validation of the price actually intended. Then, after
concluding that his decision should be one of denial, the CO
sought the concurrence of Respondent's Contract Review Board
before taking action. Under such circumstances, the Board
is compelled to deny the appeal and affirm the discretionary
decision of the CO.
It is so ordered.