U.S. GOVERNMENT PRINTING OFFICE
BOARD OF CONTRACT APPEALS
In the Matter of )
)
the Appeal of )
)
EDDIE'S PLASTIC LAMINATING )
SERVICE CORPORATION ) Docket No. GPOBCA 24-99
)
Jacket No. 779-571 )
Purchase Order N6078 )
For the Appellant: Edward L. Garcia, Chief Financial Officer/Chairman of the Board of Directors,
Eddie's Plastic Laminating Service Corporation, San Diego, California.
For the Government: Jennifer R. Fantuz, Esq., Assistant General Counsel, U. S. Government Printing
Office, Washington DC.
Before Kerry L. Miller, Administrative Judge.
DECISION
By Notice of Appeal filed on September 20, 1999, Eddie's Plastic Laminating Service Corporation
(Appellant or Contractor), timely appealed the August 27, 1999, final decision of the
Contracting Officer denying the Contractor's post-award request for relief based on an assertion
of a mistake in its price quotation under a small purchase contract identified as Jacket
779-571, Purchase Order N6078. For the reasons that follow, the Contracting Officer's decision
is AFFIRMED and the appeal is DENIED.
I. FINDINGS OF FACT
1. On June 22, 1999, the U.S. Government Printing Office (GPO) Los Angeles Regional Printing
Procurement Office (LARPPO) issued a request for quotations (RFQ) under Jacket 779-571, for
4,000 copies of a laminated pocket guide for the U.S. Department of Veteran's Affairs (VA)
Greater Los Angeles Healthcare System. Rule 4 File, Tab B.
2. The RFQ described the pocket guide as a 5 x 19-1/2 inch document printed on both the front
and back. The document was to be laminated on both sides with 3 mil plastic cut flush. The
pocket guide was to be scored every 3-1/4 inches and folded from 5 x 19-1/2 inches to 5 x 3-1/4
inches, resulting in six panels per side. The contractor was directed to pack the finished
products "suitable per shipping container." Id.
3. GPO received 6 price quotations, ranging from Appellant's low quote of $1,387 to a high of
$5,488.
CONTRACTOR UNDISCOUNTED PRICE DISCOUNTED1 PRICE
Eddie's Laminating $1,387 $1,387
Franklin Southland $1,977 $1,878.5
KS Press $2,016 $1,195.20
National Printing $2,045 $2,045
C & N Desktop $4,632 $4,539.36
Sir Speedy $5,600 $5,488
Rule 4 File, Tab D. Appellant's written price quotation was faxed to the LARPPO on June 22, 1999,
by the company's Chief Financial Officer and Chairman of the Board of Directors, Edward Garcia, Sr.
Rule 4 File, Tab C.
4. On June 23, 1999, the GPO LARPPO contacted Appellant by telephone for the purpose of
reviewing and confirming the company's earlier price quote. The LARPPO's David Jackson spoke
first with Mr. Garcia's son and pointed out that there was a 43 per cent difference between
Appellant's undiscounted price and the next lowest contractor. Mr. Garcia's son assured Mr.
Jackson that the quote "was good" and asked GPO to send Appellant a purchase order.
Mr. Jackson next spoke with Mr. Garcia himself. He informed Mr. Garcia that there was a 43 per
cent difference between Appellant's price and the next lowest contractor. He again requested that
the company review and confirm its earlier price submission. Mr. Garcia stated that his earlier
price was correct. Rule 4 File, Tab K.
5. Later that day the GPO LARPPO issued Purchase Order N6078 to Appellant. Rule 4 File, Tab
F.
6. Appellant picked up the Government furnished materials and began producing the pocket
guides called for in the contract. On July 1, 1999, Mr. Garcia contacted the Contracting
Officer to report that his company was producing the job, and expected to finish on time and to
produce products that met the contract's specifications. However, Mr. Garcia claimed he had
made miscalculations in his price quote and requested the contract price be increased by $350.
The Contracting Officer reminded Mr. Garcia that his company had verified the price during the
pre-award review and confirm process. The Contracting Officer advised Mr. Garcia to submit a
notarized affidavit and evidence to establish the mistake made, the manner in which the mistake
occurred and the intended price. Rule 4 File, Tab M.
7. By facsimile transmission on July 12, 1999, Appellant informed the LARPPO Compliance
Section that the company had shipped the completed materials to the Government, to arrive at
destination on July 15, 1999. Rule 4 File, Tab G.
8. On July 16, 1999, the LARPPO received a claim from Appellant for relief based upon an error
in its price quotation. According to an affidavit signed by Mr. Garcia, the company's price
quotation was in error because the "labor involved was unforeseen regarding the individual
cutting, scoring, folding and pressing of each unit." Mr. Garcia also explained that the cost
of wrapping the finished materials in units of 50 "was not taken into consideration" when
formulating the price quotation. Mr. Garcia explained that the error occurred "because the
labor was not realistically approached for a book of 6 panels to be scored, folded and pressed
into a nice finished product." Rule 4 File, Tab H.
9. By letter dated July 20, 1999, the Contracting Officer informed Appellant that "[y]ou were
called by Mr. Jackson, of this office, requesting you to review & confirm your bid on that date,
which you did. . . . "[y]our claim of mistake after award does not present any clear &
convincing evidence that a bona fide mistake was made by you & and your company. It simply
states that you made miscalculations, and requests more mon[ey]." Rule 4 File, Tab I. The
Contracting Officer requested Appellant submit evidence to support its claim. Id.
10. On August 6, 1999, Appellant compared the estimated costs included in its original price
quotation with the costs actually incurred in completing the contract. Appellant claimed that
it estimated 31 hours for pressing 6 panels and incurred 46.5 hours; estimated 30.1 hours for
folding 6 panels, and incurred 45 hours; and estimated 42 hours for cutting but incurred 56.35
hours.2 Appellant stated:
We hereby respectfully request an additional $350.00 due to our error in the original calculations
for labor on this job. We have no other data to provide, as the original estimates were shredded
after we were in the final phases of completion. At that time we were only concerned with
completing this job in an orderly fashion and assuring that delivery was on time as promised.
Rule 4 File, Tab J.
11. By memorandum dated August 17, 1999, the Contracting Officer recommended, to the
Chairperson of the GPO Contract Review Board, that Appellant's claim be denied. The Contracting
Officer's analysis follows:
After bid opening, the certifier noticed that the bid of Eddies Laminating Service Corp. was much
lower than the next low bidder. He called the contractor, and asked him to review & confirm
because of the probability of a mistake, and gave the contractor an opportunity to verify the bid
as correct, & accept the job, or withdraw his bid. The Contractor was awarded the job.
After award, and after substantial performance, Edward L. Garcia called the GPO C.O. on July 1,
1999, and said he was producing the job and would finish it per specs & on schedule, but that he
had made miscalculations in his bid and requested another $350.00. The C.O. reminded him that he
had verified his bid to be true and correct, & had accepted the job. Mr. Garcia has never denied he
verified his bid. The C.O. advised Mr. Garcia that he must submit a notarized affidavit, and
evidence that will serve to establish the mistakes, the manner in which they occurred, and the bid
actually intended, in order for his claim to be considered.
By notarized affidavit dated 7-15-99, Mr. Garcia states his alleged mistake without any supporting
documentation. The C.O. responded with a letter dated July 20, 1999. Mr. Garcia then prepared &
sent his letter dated 8-6-99. It is the opinion of the Contracting Officer that clear & convincing
evidence has still not been submitted, that a bona fide mistake was made, nor as to what he
intended to bid.
Although the bid for this small job was considered low in comparison to the other bids, the GPO
estimate, and similar jobs, the discrepancy in bids was not so large that it was unconscionable.
The Governments specifications were not ambiguous or defective, and the bid verification was
adequate. The evidence does not warrant a change in the award amount.
The contractor was responsive to the IFB, and was responsible in terms of his understanding of what
was required by the IFB. The contractor was on notice of the differences in the bids, and did not
raise any objection to the C.O. until after he had verified his bid, accepted the job, & had made
substantial performance.
This is a product that Eddies Laminating Service Corp. specializes in producing. Mr. Garcia's bid
verification has barred correction even though a mistake may well have been made. The Government
does not guarantee the contractor that the contract award will become a profitable piece of
business.
The job was completed & delivered on time. The Contractor can bill for the purchase order amount
of $1,387.00.
Based upon the evidence furnished, a determination to increase the price is not warranted.
Therefore a recommendation is made that no change shall be made in the contract award. The
contracting officer requests concurrence from the GPO General Counsel, and the Contract Review
Board to deny the contractor's request for more money.
Rule 4 File, Tab M. The Contract Review Board concurred with the Contracting Officer's
recommendation. Id.
12. In a final decision dated August 27, 1999, the Contracting Officer informed Appellant
that he was denying Appellant's claim for an increase in the contract price. Tab N.
13. On September 20, 1999, Appellant filed the instant appeal. Appellant explained its
position in the letter of appeal:
In all fairness, Mr. Fergusons' office [the LARPPO] called me prior of the award of the bid to
verify the amount we bid for Jacket # 779-571. We accepted not knowing the actual time elements it
would take to complete such a complicated job involving the six panel scoring, pressing and
folding. We are asking for the additional monies due to a human error on our part concerning the
final phases of this job for labor that was incurred. In order to meet our obligations for this
job we did not request additional time for completion, we finished and delivered the job on time,
hoping that the bid was sufficient to cover all the extra labor. Unfortunately it was not. We
hereby request an additional $350.00 to cover the additional labor that was involved.
(Emphasis in original.) Rule 4 File, Tab O.
II. DISCUSSION
The Appellant argues that because it misjudged the amount of labor that would be needed to
complete the contract, this unilateral mistake in its price quotation entitles it to post-award
error in bid relief. The Contracting Officer asserts that Appellant is not entitled to relief
because the Government properly discharged its bid verification duty. The Board concludes that
the error made by Appellant was an error of judgment rather than the type of error for which
mistake-in-bid relief is available.
A. Errors in Small Purchase Price Quotations
The small purchase contract that is the subject of this appeal was negotiated pursuant to the
agency's authority granted by 41 U.S.C. � 5(1). That statute provides the GPO limited
exceptions to the requirement that purchases and contracts for supplies for the Government may
be made only after advertising and the receipt of proposals.3 Although technically a negotiated
procurement, in practice it was conducted much like a traditional sealed bid procurement. The
requirements were publicly advertised and contractors were requested to submit prices to the
Government in the form of price quotations. The responsible firm with the lowest acceptable
quotation was to be issued a purchase order signed by the contracting officer. PRINTING
PROCUREMENT REGULATION, GPO Pub. 305.3 (Rev. 5-99) (hereinafter PPR) Ch. VII, Sec. 4.2(c).
The PPR notes that quotations submitted in response to small purchase solicitations differ from
formal bids submitted in response to an IFB. A written offer in response to an IFB can form a
bilateral contract upon acceptance by the Government through the issuance of a Purchase Order.
However, a quotation submitted in response to an RFQ is not a binding offer, and consequently
cannot be accepted by the Government to form a contract. A small purchase contract can only be
formed by the contractor signing the purchase order or by performing substantial work on the
contract. See, PPR Ch. VII, Sec. 4.1; PPR Ch. XII, Sec. 6.5 (a).
In the instant appeal, Appellant received the small purchase order and began performing. It was
not until Appellant had performed a substantial portion of the contract that it claimed an error
in its price quotation. Respondent's PPR contains guidance on how a Contracting Officer should
handle mistakes in quotations on small purchase procurements. Respondent's regulations require
that mistake claims made after the contractor has begun performance "shall be handled in the
same manner as any post-award mistake in bid." PPR, Ch. XII, Sec. 5, � 5(a)(4). The GPO
mistake in bid regulations reflect a different standard to be applied to post award error claims
as compared to pre-award error claims. Post award claims, to protect the integrity of the
sealed bid system, are granted only when the parties have made a mutual mistake or when the
Government suspected a pre-award error in bid and failed to seek confirmation. Compare PPR Ch.
XII, Sec. 6.3 (b)-(d) with PPR Ch. XII, Sec. 6.4 (c). These regulations comport with the
general rule in Government contract law that if a bidder has made a mistake in submission of a
bid that was neither induced nor shared by the Government and the bid has been accepted, the
bidder must bear the consequences of the mistake unless the Contracting Officer knew or should
have known of the existence of the mistake at the time the bid was accepted. Doke, MISTAKES IN
GOVERNMENT CONTRACTS - ERROR DETECTION DUTY OF CONTRACTING OFFICERS, 18 S.W.L.J. 1, 10 (1964).
B. Standard For Relief
In McClure Elec. Constructors, Inc. v. Dalton, 132 F.3d 709 (Fed. Cir. 1997) the Court of Appeals
for the Federal Circuit applied a five part analysis to a claim seeking reformation as a result of
a contractor's unilateral mistake in bid. To recover, a contractor must show by clear and
convincing evidence that: (1) a mistake in fact occurred prior to contract award; (2) the mistake
was a clear-cut, clerical or mathematical error or a misreading of the specifications and not a
judgmental error; (3) prior to award the Government knew, or should have known, that a mistake had
been made, and therefore should have requested bid verification; (4) the Government did not request
bid verification or its request for bid verification was inadequate; and (5) proof of the intended
bid is established. Id. at 711. See also Bromley Contracting Co., Inc. v. United States, 794 F.2d
669 (Fed. Cir. 1986); Dakota Tribal Indus. v. United States, 34 Fed. Cl. 593, 595 (1995); Comspace
Corp., DOTBCA No. 4034, 99-2 BCA � 30,473; Solar Foam Insulation, ASBCA No. 46921, 94-2 BCA �
26,901 (1994). In applying these elements to the instant appeal, the Board concludes that
Appellant is not entitled to relief.
1. Did a Mistake Occur and What Was the Intended Price?
Appellant has not adequately established the first and fifth elements, namely that a mistake in
fact occurred prior to contract award and the amount of the intended price. This failure of proof
occurs primarily because the company "shredded" the original estimates after it was "in the final
phases of completion." Rule 4 File, Tab J. Thus the Board is without the contractor's worksheets
it prepared when formulating its price quotation. Such worksheets are valuable and probative of
these issues and Appellant's destruction of them undermines its claim. See EFG Associates, Inc.,
ASBCA No. 49356, 00-1 BCA � 30,638. When a contractor seeks to reform a contract in a unilateral
mistake context, it bears the burden of proving the intended bid by clear and convincing evidence.
Chris Berg, Inc. v. United States, 192 Ct. Cl. 176, 426 F.2d 314 (1970). "Clear and convincing
evidence" has been defined as "evidence sufficient to set the tribunal's mind at ease. It must
engender a feeling of believability. It must be complete as to all material points, and may not be
conflicting, confusing, or unreliable." See All-American Poly Corp., 84-3 BCA � 17,682 at 88,187,
citing Hageny v. United States, 215 Ct. Cl. 412, 428, 432, 570 F.2d 924, 933 (1978). The slight
evidence Appellant has placed in the record falls short of satisfying that standard. In addition
to the absence of worksheets, Appellant's inability to prove these essential elements is equally
hampered by the nature of the mistake allegedly made.
2. Is the Mistake an Error in Judgment?
The second McClure element requires the contractor to prove that the mistake was a clear-cut,
clerical or mathematical error or a misreading of the specifications and not a judgmental error.
This element recognizes that relief is not available for every mistake a contractor might make.
Arithmetical and mathematical errors and misunderstanding or misinterpreting the specifications
typically provide a basis for relief under the mistake rules. Relief is not available, however,
for mistakes in judgment. Ruggiero v. United States, 190 Ct. Cl. 327, 420 F.2d 709 (1970);
Aydin Corp. v. United States, 229 Ct. Cl. 309, 669 F.2d 681 (1982); Hydraulics International,
Inc., ASBCA Nos. 50325, 51285, 00-2 BCA � 30,921; Handy Tool & Mfg. Co., Inc., 60 Comp. Gen. 189
(1981), 81-1 CPD � 27; R.P. Richards Constr. Co.; PW Constr., Inc., B-274859.2; B-274859.3, Jan.
22, 1997, 97-1 CPD � 39; Olympic Graphic Sys., GPOBCA No. 1-92 (Sept. 13, 1996), 1996 GPOBCA
LEXIS 32, 1996 WL 812957. The reason for this rule is that errors in judgment are not
"mistakes" in the true equitable sense of that concept, see Ruggiero, 190 Ct. Cl. at 335, 420
F.2d at 713, but rather, they involve a "conscious gamble with known risks." Liebherr Crane
Corp. v. United States, 810 F.2d 1153, 1157 (Fed. Cir. 1987). Therefore, the Board first must
consider whether the error the Appellant made was an error in business judgment.
A useful distinction suggested by the cases in this area is whether the mistake involves: (1)
the quantity or nature of the work; or (2) the effort required to perform the work. See John
Cibinic, Jr. & Ralph C. Nash, Jr., ADMINISTRATION OF GOVERNMENT CONTRACTS 3d ed. 332 (The George
Washington University, 1995). A mistake involving the former is regarded as a misinterpretation
of specifications, while a mistake concerning the latter is viewed as a matter of business
judgment. Thus, an experienced contractor's failure to read more than four of the 98 pages of
specifications before submitting a bid, leading to a misjudgment of what would be required to
meet the specifications (Liebherr Crane Corp. v. United States, supra), a company's error in
determining the nature and cost of materials necessary to perform (Aydin Corp. v. United States,
supra), and a company's failure to obtain supplier quotes before computing its bid price (Handy
Tool & Mfg. Co., Inc., supra) were held to involve business judgment, while interpretations of
specifications as calling for less work than they actually did (Walter Straga, ASBCA No. 26134,
83-2 BCA � 16,611; BCM Corp. v. United States, 2 Cl. Ct. 602 (1983)) were held to involve the
kind of mistake for which relief could be granted.
In light of this distinction, it is clear that the Appellant's asserted error involves not the
nature of the work, but the effort needed to perform it. What is at issue is not, for example,
the particular kind of plastic with which the publication was to be laminated, but rather the
Contractor's judgment as to the amount or type of labor or equipment needed to properly perform
the contract. Errors in understanding or interpreting what the contract specifications require
as a deliverable end product are what is encompassed by the mistake-in-bid rules. BCM Corp. v.
United States, supra; Wico, Inc., EBCA No. 125-6-80, 80-2 BCA � 14,790. See also, St. Ives,
Inc., GPOBCA No. 12-93, 1998 GPOBCA LEXIS 32, 1998 WL 148984 (Jan. 5, 1998) (Contractor's
misunderstanding of the type of paper called for in the specifications held to be encompassed by
the mistake-in-bid rules).
In the instant appeal Appellant has consistently described its mistake as one involving an
underestimation of the amount of labor needed to complete the contract. In its initial
affidavit claiming an error Appellant's CFO wrote: "labor involved was unforeseen regarding the
individual cutting, scoring, folding and pressing of each unit" and that the error occurred
"because the labor was not realistically approached for a book of 6 panels to be scored, folded
and pressed into a nice finished product." Rule 4 File, Tab H. In its appeal to the Board
Appellant stated it "accepted [the contract] not knowing the actual time elements it would take
to compete such a complicated job." Rule 4 File, Tab O. At the Board's May 11, 2000, Status
Conference, Appellant conceded that it simply "guessed" when formulating its price quotation. A
mistaken estimate of the hours needed to perform a contract is a mistake in judgment that does
not entitle a contractor to reformation of the contract. United States v. Hamilton, Inc., 711
F.2d 1038 (Fed. Cir. 1983); American Ship Bldg. Co. v. United States, 228 Ct. Cl. 220. 654 F.2d
75 (1981) (Relief denied where contractor's failure to fully assess the difficulty of work was
held to be an error in judgment). See also Leibherr Crane Corp. v. United States, 810 F.2d 1153
(Fed. Cir. 1987) (When a contractor undertakes a conscious gamble with known risks it assumes
the risk of its deliberative choice).
Appellant does not claim that it submitted a price quotation different from the one it intended
to submit. Rather, it concludes with the benefit of hindsight, that its price quotation was not
sufficient to allow it to cover its actual costs. If a contractor submits the bid that it
intended to submit, relief is unavailable if the bid merely inaccurately gauged one or more of
the variables involved in contract performance. Goldberger Foods, Inc. v. United States, 23
Cl.Ct. 295, 311 (1991). Based on the above quoted statements by Appellant and the other
evidence adduced in this case, the Board concludes that the Appellant's error was one of
business judgment and is not cognizable under Respondent's mistake-in-bid rules.
Although in the Board's view, Appellant's failure to satisfy the second element is fatal to the
appeal, for the sake of completeness, we will examine the remaining McClure factors.
3. Was the Government's Verification Adequate?
Element three deals with the Government's duty to examine bids for mistakes and to seek bid
verification where appropriate. Element four concerns the adequacy of the Government's bid
verification. These elements arise from the principle that one party to a contract who knows or
should know that the other party has made a mistake in its offer may not sit quietly by and take
advantage of the other party's error; to do so is considered to be improper "overreaching."
Ruggiero v. United States, 190 Ct. Cl. 327, 420 F.2d 709 (1970). To prevent this overreaching,
federal procurement regulations have imposed on Contracting Officers a bid verification duty, so
that whenever a Contracting Officer suspects that a bidder has made a bid mistake, the
Contracting Officer must point out that suspicion and the basis for it. See, e.g., Federal
Acquisition Regulation (FAR) �� 14.407-1, 14.407-3(g)(1).
The Respondent's regulation covering mistakes in small purchase quotations requires a
Contracting Officer who suspects a mistake to request that the supplier review and confirm the
accuracy of its quotation. PPR, Chap. XII, Sec. 6.5 (a)(1). If the supplier responds by
alleging a mistake, the Contracting Officer may allow the contractor to withdraw its quotation;
or accept a corrected quotation; or negotiate a change in the quotation. PPR, Chap. XII, Sec.
6.5 (a)(2).
In the instant appeal, the Contracting Officer followed the regulation and examined the prices
for potential errors. He noted that Appellant's price was $590 (43 per cent) lower than the
next lowest offeror and suspected an error. He then contacted Appellant and obtained
verification of the price quote. Rule 4 File, Tabs K, M.
The inquiry now turns to the adequacy of the price verification, for if a Contracting Officer
has not adequately verified a bid, a contract award to the bidder submitting the erroneous bid
will not give rise to a binding contract notwithstanding that the bidder, in response to a
verification request, verified the bid as correct. BDF Tesa Corp., GSBCA No. 8307, 89-3 BCA �
21,925. In such circumstances, the contractor generally will be entitled to rescission or
reformation, as appropriate, of the contract. It is the contractor's burden however, to
establish this entitlement to relief by clear and convincing evidence. PPR Chap. XII, Sec. 6, �
4.c.; St. Ives, Inc., GPOBCA No. 12-93 (Jan. 5, 1998), 1998 GPOBCA LEXIS 31, 1998 WL 148984;
Olympic Graphic Sys., GPOBCA No. 01-92 (Sept. 13, 1996), 1996 GPOBCA LEXIS 32, 1996 WL 812957.
The Contracting Officer's duty is to place bidders on notice of a suspected mistake and, when a
particular mistake is suspected, of that particular mistake. Structural Finishing, Inc., ASBCA
No. 26647, 84-2 BCA � 17303; Ames Color-File Corp., B-185873, Mar. 26, 1976, 76-1 CPD � 199
(denying relief in another GPO procurement to a bidder whose bid was approximately 33 percent
lower than the next lowest bid but who confirmed the bid after being informed of the discrepancy
and requested to review the specifications and who then after award asserted a mistake); Andy
Elec. Co., B-194610.2, Aug. 10, 1981, 81-2 CPD � 111; Atlas Builders, Inc., B-186959, Aug. 30,
1976, 76-2 CPD � 204; Porta-Kamp Mfg. Co., Inc., 54 Comp. Gen. 545 (1974), 74-2 CPD � 393.
Where the only reason why the Contracting Officer suspects error is the disparity in price
between the bids received, a simple request for verification is enough. Jansen, ASBCA No. 5412,
59-2 BCA � 2384; 37 Comp. Gen. 786 (1958).
To verify Appellant's price quotation, the LARPPO's David Jackson called Appellant and spoke
first with Mr. Garcia's son. Mr. Jackson pointed out that there was a 43 per cent difference
between Appellant's undiscounted price and the next lowest contractor. Mr. Garcia's son assured
Mr. Jackson that the quote "was good" and asked GPO to send Appellant a purchase order.
Mr. Jackson next spoke with Edward Garcia, the person who had submitted the price quotation to GPO.
He informed Mr. Garcia that there was a 43 per cent difference between Appellant's price and the
next lowest contractor. He again requested that the company review and confirm its earlier price
submission. Mr. Garcia stated that his earlier price was correct. Rule 4 File, Tab K.
The Board concludes that the verification request was appropriate under the circumstances.4
There is no factual basis in the record for a conclusion that the Contracting Officer knew or
should have known of any particular reason for the possible error in Appellant's bid. This
small purchase procurement called for a single lump sum price. Therefore, there were no
contract line items that the Contracting Officer could have examined in an effort to pinpoint
the source of the suspected mistake. The most the Contracting Officer could do was to point out
the price disparity and request Appellant to review and confirm its price.
The record does not establish that the Contracting Officer had any reason to believe, upon
receipt of two verifications from Appellant, that Appellant's price quotation was based on an
incorrect estimate of the amount of labor needed to produce the product. While the Appellant's
quote was $590 lower than the next lowest quote and lower than the Government estimate, this
procurement produced a wide swing in prices with a difference between the fourth and fifth
lowest quote exceeding $2,500. Rule 4 File, Tab D. Under the circumstances, the Board does not
view the Appellant's quote as so out of line with the other quotes or the $590 difference
between the Appellant's quote and the next lowest quote as so clearly indicative of error
despite the verification such that the Contracting Officer should not have issued a purchase
order.
DECISION
Considering the record as a whole, the Board concludes that Appellant is not entitled to
unilateral mistake-in-bid relief. Therefore, the Contracting Officer's final decision denying
relief is AFFIRMED and the appeal is DENIED.
It is so Ordered.
August 18, 2000 KERRY L. MILLER
Administrative Judge
GPO Board of Contract Appeals
_______________
1 Under the terms of the solicitation, contractors were permitted to offer the Government a prompt
payment discount. GPO CONTRACT TERMS, GPO Publication 310.2 (Rev. 5-99), Solicitation Provision
12.
2 Appellant made no further claim for the cost of wrapping the finished pocket guides. Compare
Rule 4 File, Tab H with Rule 4 File, Tab J.
3 GPO contracting officers are constrained by the historical preference for using sealed bid
procurements found in Revised Statutes � 3709 (41 U.S.C. � 5). This preference was eliminated for
the Executive branch in 1984, but not for the Legislative branch. See, 41 U.S.C. � 253. Thus,
while the Executive branch can choose to conduct acquisitions either by negotiated procedures or by
sealed bid, as appropriate under the circumstances, GPO can only do so under certain restrictions
found in 41 U.S.C. � 5 or under very limited circumstances, by invoking the approval and
justification procedures contained in 44 U.S.C. � 311(b).
4 The Board's only concern with the verification process is that the Contracting Officer revealed
the percentage difference between the two prices. This small purchase procurement was a negotiated
procurement and as such, the prices of the other offerors were not publicly available. In such
circumstances the verification must be made without disclosing information concerning the other
offeror's prices. See PPR Ch. XII, Sec. 6.5(a)(1); Rex Systems, Inc., ASBCA No. 45297, 93-3 BCA �
26,155. However, the Contracting Officer's actions did not prejudice Appellant. Rather, the
Contracting Officer provided Appellant with more information about the suspected mistake that it
was entitled to.