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.