B-167188, OCTOBER 24, 1969, 49 COMP. GEN. 272

B-167188, OCTOBER 24, 1969, 49 COMP. GEN. 272

CONTRACTS -- MISTAKES -- ACTUAL OR CONSTRUCTIVE NOTICE IN THE ABSENCE OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF AN ALLEGED ERROR, A CONTRACTING OFFICER IS NOT REQUIRED TO ASSUME THE BURDEN OF EXAMINING EVERY BID OR PROPOSAL FOR POSSIBLE ERROR AND, THEREFORE, A CONTRACTOR ALLEGING A MISTAKE AFTER AWARD IN HIS PROPOSAL ON BALLISTIC NYLON CANOPIES THAT WAS NOT APPARENT ON ITS FACE, AND WHERE THE CONTRACTING OFFICER HAD NO CONSTRUCTIVE NOTICE OF ERROR BECAUSE THERE WAS ONLY A 14 PERCENT DIFFERENCE BETWEEN PROPOSALS, AND BECAUSE HE COULD HAVE PROCURED A VINYL SET OF BLANKETS AT A LOWER PRICE, IS NOT ENTITLED TO A PRICE ADJUSTMENT ON THE BASIS THE CONTRACTING OFFICER COULD HAVE DISCOVERED THE MISTAKE BY EXAMINING PRIOR PROCUREMENTS. IT IS UNREASONABLE TO HOLD A CONTRACTING OFFICER RESPONSIBLE TO DETERMINE THAT PRICES OFFERED ARE IMPROVIDENT ON FACTORS THAT ARE NOT ASCERTAINABLE FROM THE BID OR OFFER ITSELF. TO KINGS POINT MFG. CO., INC., OCTOBER 24, 1969:

BY LETTER DATED JUNE 5, 1969, WITH ENCLOSURES, YOU REQUESTED AN INCREASE IN THE PRICE STIPULATED IN CONTRACT NO. N00600-69C-0881, BECAUSE OF AN ERROR ALLEGED AFTER AWARD IN YOUR OFFERED PRICE UNDER REQUEST FOR PROPOSALS (RFP) NO. N00600-69-R-5197, UPON WHICH THE CONTRACT IS BASED.

RFP N00600-69-R-5197 WAS ISSUED ON MARCH 24, 1969, FOR THE PROCUREMENT OF 25 SETS OF BALLISTIC NYLON CANOPIES. ON APRIL 9, 1969, THE DAY BEFORE THE CLOSING DATE FOR PROPOSALS AND AFTER THREE PROPOSALS HAD ALREADY BEEN RECEIVED, AN AMENDMENT WAS ISSUED WHICH EXTENDED THE CLOSING DATE FOR PROPOSALS UNTIL APRIL 17, 1969, INCREASED THE QUANTITY REQUIRED TO 95 SETS, AND REDUCED THE TIME FOR DELIVERY. ON APRIL 17, 1969, ALL PROPOSALS FOR 95 SETS WERE ABSTRACTED. PRICES PER SET WERE $1,492, $1,684.12, AND $1,929, WITH KINGS POINT'S OFFER BEING LOW. ACCORDINGLY, KINGS POINT WAS AWARDED THE CONTRACT IN THE AMOUNT OF $141,740 ON APRIL 21, 1969. SHORTLY THEREAFTER, YOU NOTIFIED THE CONTRACTING OFFICER THAT AN ERROR HAD BEEN MADE AND SUBMITTED SUBSTANTIATING WORKSHEETS WHICH CLEARLY SHOWED THE ERRONEOUS MATHEMATICAL COMPUTATION ALLEGED.

YOUR CLAIM WAS DENIED ON THE GROUNDS THAT THE ALLEGED MISTAKE WAS NOT APPARENT ON THE FACE OF YOUR PROPOSAL AND THAT THERE WAS NO BASIS FOR A FINDING THAT THE CONTRACTING OFFICER SHOULD HAVE HAD CONSTRUCTIVE NOTICE OF YOUR ERROR. ON THIS LATTER POINT, THE CONTRACTING OFFICER ADVISED YOU THAT THERE WAS ONLY A DIFFERENCE OF APPROXIMATELY 14 PERCENT BETWEEN EACH OF THE THREE PROPOSALS SUBMITTED AND THAT THE COST OF A VINYL SET OF BLANKETS WOULD BE LESS THAN YOUR PROPOSED PRICE. (THE NAVAL SHIP RESEARCH CENTER HAD QUOTED A PRICE OF $1,383.17 PER VINYL BALLISTIC CANOPY SET TO THE CONTRACTING OFFICER.)

TAKING THESE FACTS INTO CONSIDERATION, THAT IS, THE PERCENTAGE DIFFERENCE BETWEEN PROPOSALS; THE FACT THAT THE CONTRACTING OFFICER HAD BEEN FURNISHED WITH A VINYL SET PRICE LOWER THAN YOUR PROPOSED PRICE; AND THE ABSENCE OF APPARENT ERROR IN YOUR OFFER, WE CONCUR WITH THE CONTRACTING OFFICER'S DECISION DENYING YOUR REQUEST FOR RELIEF.

IN THE ABSENCE OF ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGED ERROR, WE DO NOT BELIEVE THAT THE CONTRACTING OFFICER WAS, AS YOU CONTEND, REQUIRED TO EXAMINE A PRIOR PROCUREMENT INVOLVING A LESSER QUANTITY OF SMALLER BLANKETS OR THE PROPOSALS SUBMITTED FOR 25 SETS. THE INITIAL RFP COVERING 25 SETS WAS EFFECTIVELY ELIMINATED FROM CONSIDERATION BY THE AMENDMENT WHICH SUBSTANTIALLY CHANGED THE CONCEPT OF THE PROCUREMENT. FURTHERMORE, IN VIEW OF THE SUBSTANTIAL DIFFERENCES BETWEEN THESE PRIOR PROCUREMENT ACTIONS AND THE INSTANT PROCUREMENT, IT WOULD BE UNREASONABLE TO HOLD THAT THE CONTRACTING OFFICER HAD THE BURDEN OF MINUTELY ASCERTAINING THE RESPECTIVE COST RELATIONSHIPS OF THE ABOVE FACTORS TO ASSURE THAT YOU HAD NOT OFFERED AN IMPROVIDENT PRICE. THE SAME MAY BE SAID OF YOUR CONTENTION TO THE EFFECT THAT THE CONTRACTING OFFICER SHOULD HAVE EXTRACTED MATERIAL COSTS FROM THE PROPOSALS BEFORE A PERCENTAGE COMPARISON WAS MADE. NOT ONLY IS YOUR CONTENTION BASED UPON THE DUBIOUS ASSUMPTION THAT THE MATERIAL COSTS OF THE OFFERORS WERE THE SAME, BUT IT INTRODUCES INTO THE PRICE COMPARISON A FACTOR WHICH IS NOT ASCERTAINABLE FROM THE OFFER ITSELF. THE FOLLOWING COMMENT FROM B-164845, JANUARY 27, 1969, IS PARTICULARLY PERTINENT HERE:

MISTAKE-MAKING CONTRACTORS WILL NATURALLY SEEK TO IMPOSE UPON CONTRACTING OFFICERS A RATHER HIGH LEVEL OF BRILLIANCE FOR THE PURPOSE OF DETECTING ERROR. SEE WENDER PRESSES, INC. V UNITED STATES, 170 CT. CL. 483, 486. HOWEVER, THE TEST IS WHETHER UNDER THE FACTS AND CIRCUMSTANCES OF "THE PARTICULAR CASE THERE WERE ANY FACTORS WHICH REASONABLY SHOULD HAVE RAISED THE PRESUMPTION OF ERROR IN THE MIND OF THE CONTRACTING OFFICER" (WELCH, MISTAKES IN BID, 18 FED. B.J. 75, 83) WITHOUT MAKING IT NECESSARY FOR THE CONTRACTING OFFICER TO ASSUME THE BURDEN OF EXAMINING EVERY BID FOR POSSIBLE ERROR BY THE BIDDER. SEE SALIGMAN V UNITED STATES, 56 F. SUPP. 505, 508. ***

FOR THE ABOVE REASONS, WE FIND NO BASIS UPON WHICH TO ALLOW YOUR REQUEST FOR PRICE ADJUSTMENT.