IN THE UNITED STATES CLAIMS COURT
No. 90-4010C
(Filed: March 10, 1992)
_______________________________
)
EPOC ASSOCIATES, )
)
Plaintiff ) THIS OPINION WILL NOT BE
) PUBLISHED IN THE UNITED
v. ) STATES CLAIMS COURT
) REPORTER.
UNITED STATES OF AMERICA )
)
Defendant. )
_______________________________)
William L. Dickey, Washington, D.C., attorney for plaintiff.
John Warshawsky, United States Department of Justice, Washington,
D.C., for defendant.
OPINION
HODGES, Judge.
The United States Government Printing Office (GPO) issued an
invitation for bids for a five-year contract to print patents and
other documents for the United States Patent and Trademark
Office. Bids were opened on November 28, 1990, and plaintiff
(EPCO) was the apparent low bidder. Thereafter, GPO notified
EPCO that a quantity error had been made. The solicitation was
cancelled. EPCO moved for a temporary restraining order before
this court on December 12, 1990. This motion was denied.
Plaintiff filed an amended complaint on December 20, 1990,
requesting reinstatement of the cancelled solicitation, direction
for award to be made under the reinstated solicitation to
plaintiff, and other relief as appropriate. Defendant moved for
summary judgment on May 15, 1991. For the reasons stated below,
and on the record of oral argument August 14, 1991, defendant's
motion for summary judgment is granted.
FACTS
GPO issued an invitation for bids on October 9, 1990. Section 2
of the invitation for bids included the following language with
regard to quantity: "Approximately 400 Dedications, Disclaimers,
Adverse Decisions, and Special Certificates, requiring
approximately 150 copies of each may be ordered per year."
(Emphasis supplied). Section 3 provided that the lowest bid
would be determined by applying the Schedule of Prices to the
"units of production which are the estimated requirements to
produce the first year's production under this contract."
Units of production for Dedications, Disclaimers, Adverse
Decision, and Special Certificates were listed in Section 3 at
Subsection III(a) as "360." This was a mistake. GPO actually
needed 360 units times 150 copies per unit, a total of 54,000
units actually needed.
EPCO submitted a bid of $6 per leaf for the 360 units mistakenly
listed, while the second lowest bidder (Xerox) bid $.0155 per
leaf for the same item. The result was that EPCO's bid increased
by $321,840 when applied to the correct quantity; Xerox' bid
increased by only $831.42. After recomputing the bids based on
the correct quantity, GPO found that plaintiff no longer was the
low bidder, so the Contracting Officer cancelled the solicitation
on November 30, 1990. The Contract Review Board affirmed the
Contracting Officer's decision.
Thereafter, plaintiff offered to produce the additional quantity
at the unit price offered by Xerox. Alternatively, it offered to
produce the additional quantity needed for the original bid price
for that item (360 unit x $6 per unit = $2,160). These
suggestions were not accepted by GPO.
Plaintiff applied to this court for a temporary restraining order
prohibiting the new resolicitation. This motion was denied on
December 19, 1990.
ARGUMENTS
Defendant states that the "ambiguity" in the invitation for bids
was "dramatic" because it resulted in the second lowest bidder
becoming the lowest, when the bid prices were applied to correct
government requirements. It resulted in a disparity of more than
$321,000 between the increased bid amounts for the units in
error. Plaintiff asserts that the 360-leaf number was not an
ambiguity at all, but "all uniform basis upon which the parties
could bid." Plaintiff points out also that its bid for 360 units
at $6 per unit is de minimis $2,160 in relation to its total low
bid of $2,856,785.67.
This is a case in which both parties seem right. Measured by the
54,000 page requirement, plaintiff's bid at $6 per page increases
dramatically; measured by the advertised 360 pages, $6 per page
is only $2,160 - indeed a de minimis amount of less than one-
tenth of one percent of the total bid price. Coupled with
plaintiff's offer of meeting Xerox' price of $.0155, or producing
all 54,000 units for EPCO's mistaken bid of $2,160, one wonders
how plaintiff could have been more reasonable.
DECISION
Plaintiff's arguments do have the sound of logic and reason, so
it is important to review the regulations. GPO is not subject to
the Federal Acquisition Regulations (FAR), but its own
procurement regulations are substantially similar to FAR ยง
14.404-1, Cancellation of invitations after opening.
GPO Printing Procurement Regulation ch. XI, Section 2,
Cancellation of Invitation After Opening, reads in part as
follows:
1. Procedure. The following applies to cancellation after bid
opening.
a. Preservation of the integrity of the competitive bid system
and prevention of unnecessary exposure of bid prices dictate
that...award must be made to that responsible bidder who
submitted the lowest responsive bid, unless there is a compelling
reason to reject all bids and cancel the invitation...
b. IFBs may be cancelled after opening but prior to award and
all bids rejected, only where such action is clearly in the best
interest of the Government...The following are examples of an IFB
after opening.
(i) Inadequate, ambiguous, or otherwise deficient specifications
were cited in the IFB.
When one contractor bids $6 per page and another contractor bids
$.0155 for the same item, one might suspect an ambiguity.
However, plaintiff explains this as "only a different bidding
approach" and not an ambiguity in the number 360. Plaintiff
points out that numbers inherently are not ambiguous, though they
can be wrong.
While number in themselves perhaps cannot be ambiguous, their use
in context may be. Section 2 of the invitation for bids clearly
states: "Approximately 400 Dedications, Disclaimers, Adverse
Decision, and Special Certificates, requiring approximately 150
copies of each may be ordered per year." (Emphasis supplied).
This is 60,000 copies per year, and this is a correct
approximation. It is in Section 3, Determination of Award, that
the error occurs. It reads:
III. DEDICATIONS, DISCLAIMERS, ADVERSE DECISIONS, AND SPECIAL
CERTIFICATES:
(A) 360
An ambiguity exists in Sections 2 and 3. Confusion apparently
resulted from this ambiguity, though admittedly the disparity
could be explained by bidding strategies.
Defendant is persuasive in its arguments against the alternatives
to resolicitation offered by EPCO. These include lack of
authority, prejudice to other bidders, and integrity of the bid
process. We have reviewed arguments of plaintiff and defendant
with regard to the alternatives, and determined that the
Contracting Officer had good reason not to use them.
The issue narrows therefore to whether the Contracting Officer
had a "compelling reason" to cancel the solicitation after bid
opening. The Claims Court has found a Contracting Officer's
decision to cancel a solicitation to be discretionary and
'"extremely broad. A determination concerning the
unreasonableness of prices bid is a matter of administrative
discretion which should not be questioned...[without] a showing
of fraud or bad faith." Caddell Constr. Co. v. United States, 7
Cl. Ct. 236, 241 (1985). Plaintiff's counsel has acknowledged
that the Government had no actual knowledge of the error prior to
the bid opening. He makes no allegations of fraud or bad faith.
Plaintiff's case rests on its belief that the Contracting
Officer acted irrationally or unreasonably.
The Court of Claims has held that "where the Government alleges a
reasonable basis for cancelling the solicitation...it is clear
that plaintiffs must do more than assert what amounts to mere
naked charges of arbitrary and capricious action in order to
obtain a trial." American General Leasing, Inc. v. United
States, 218 Ct. Cl. 367, 375 (1978). Our review of the record
suggest that the Contracting Officer and those who reviewed his
decision understood the gravity of that decision. They realized
that it was a serious determination which may be made only for
compelling reasons in the Government's best interest.
While this process caused hardship for EPCO on this single bid,
we cannot say it was illegal. Viewed in the perspective of
government procurement policies across the board, perhaps
plaintiff will see the Contracting Officer's decision as
understandable, if not reasonable.
CONCLUSION
For the reasons stated herein, and on the record of oral argument
August 14, 1991, defendant's motion for summary judgment is
GRANTED. The Clerk will dismiss plaintiff's complaint. No
costs.