UNITED STATES
GOVERNMENT PRINTING OFFICE
CONTRACT APPEALS BOARD
Appeal of Dependable Printing Company, Inc.
Contract Appeals Board
Panel 84-19
KERRY L. MILLER
Chairman
JAMES L. LEONARD
JOHN M. MARKOVCHICK
Members
PRELIMINARY STATEMENT
Dependable Printing Company, Inc. (hereinafter appellant), has filed a timely appeal from the
final decision of the Contracting Officer denying appellant's request to modify or withdraw its
bid after award in Program 1433-S. The appellant appealed the final decision in accordance with
the "disputes" clause of the contract. Article 2-3, Contract Terms No. 1, GPO Publication
310.2, revised October 1, 1980. In accordance with Contract Terms No. 1 and GPO Instruction
110.10B, entitled "Board of Contract Appeals Rules of Practice and Procedure," the GPO Contract
Appeals Board has jurisdiction over this matter. The decision of the Board is based solely on
the record of this appeal. The record consists of an appeal file containing 161 exhibits.
FINDINGS OF FACT
1. Invitations for Bids on Program 1433-S were mailed to 40 contractors. An additional six
firms requested a copy of the Invitation for Bids. Exhibit 1.
2. At the bid opening on December 1, 1983, seven "no bids" and four responses were received.
Exhibit 6.
3. Program 1433-S was a contract for the procurement of engineering drawings and specifications
for the U.S. Army - Corps Of Engineers for the period of January 1, 1984, to December 31, 1984.
The contract consisted of a single award in each of two categories. Exhibit 2, p. 1.
4. For Category I of the contract, appellant submitted the following per leaf (one side only),
bid prices:
Black Ink or a Color Other Than Black:
Make ready and Setup Charges $5.50
Per 100 Copies 2.25
Each Additional Color of Ink:
Makeready and Setup Charges 4.50
Per 100 Copies 1.00
Exhibit 3, p. 2. Appellant's total bid for Category I (excluding the discount), was $48,980.
Appellant was the lowest bidder for Category I. The other three bids ranged from $99,200 to
$220,720. The current contractor was awarded the contract with a bid for Category I of $49,352.
Exhibit 4.
5. For Category II of the contract, appellant submitted the following prices for text pages:
Makeready Running Per
and/or Setup 100 Copies
(a) Perfect Bound (per page) $ .25 $ .75
(b) Side-Stitched (per page) .15 .49
Additional Operations Per Book .90
Exhibit 3, p.2. Appellant's total bid for Category II (excluding the discount), was $51,799.92.
Appellant was the lowest bidder for Category II. The other three bids ranged from $66,703.20 to
$383,880.00. The current contractor was award the contract with a bid for Category II of
$73,732.80. Exhibit 4.
6. Appellant was contacted telephonically by William Walters, Printing Specialist, and
requested to review and confirm his prices. Mr. C. Kenneth Rhodes, Jr., Secretary-Treasurer of
appellant, confirmed the prices by telephone (Exhibit 11), and provided the following notarized
statement dated December 20, 1983: "I, C. Kenneth Rhodes, Jr., being Secretary-Treasurer of
Dependable Printing Company, Inc., do hereby confirm the revised prices of Program 1433-S as bid
by us." Exhibit 5.
7. Award in both Category I and II was made to appellant on January 6, 1984. Exhibit 7.
8. By letter dated February 1, 1984, appellant complained that after billing the first three
print orders, the "estimated cost" was not close to the actual amount billed and asked: "[s]
hould I be concerned about this difference? If so, what am I to do about it?" With his February
1, 1984 letter appellant enclosed a copy of the "Schedule of Prices" (page 9 of the contract
specifications). The Contracting Officer's comparison of this document (Exhibit 10, p. 6), with
appellant's actual bid (Exhibit 3, p. 2), disclosed that the prices in Category II differed
significantly. Exhibit 8.
9. Based on the material submitted by appellant, the Contracting Officer concluded that there
was the possibility of a post-award error in bid and informed appellant of the steps to take in
perfecting such a claim. Exhibit 9.
10. Appellant claimed that his bid prices for Category II2 were incorrectly transferred from
his working copy (Exhibit 10, p. 6), to the document submitted as his bid (Exhibit 3, p. 2).
According to appellant, his intended bid for Category II was:
Makeready Running per
and/or setup 100 copies
(a) Perfect Bound (per page) $1.25 $1.75
(b) Side-Stitched (per page) 1.15 1.49
Appellant requested that his bid be corrected or in the alternative that he be allowed to withdraw
his bid. Exhibit 10, p. 1.
11. The GPO Contract Review Board (CRB), approved the Contracting Officer's recommendation that
appellant not be permitted to modify or withdraw its bid. The Contracting Officer concluded
that evidence of a post-award error in bid was not presented by appellant and that if an error
was made by appellant, it was unilateral. Exhibit 12. Appellant was informed of the Final
Decision of the Contracting Officer in a letter dated March 12, 1984. Exhibit 13.
12. Appellant appealed this Final Decision in a letter dated June 10, 1984. Exhibit 14.
DECISION
Appellant alleges that the Contracting Officer had actual pre-award notice that appellant's bid
contained an error in the Category II prices. In addition, appellant contends that he should
have been permitted to withdraw or modify his bid subsequent to award.
A. Pre-Award Notice of Error
Where an error in bid is alleged after award, the contractor can obtain relief only by
establishing that the Contracting Officer was on actual or constructive notice of the mistake in
bid at the time of award. Wonder Presses, Inc. v. U.S., 343 F.2d 961 (Ct. Cl. 1965); 44 Comp.
Gen. 383 (1965). Appellant alleges that the Contracting Officer was on actual notice of a
mistake in bid at the time of award.
Appellant specifically alleges that after being telephonically contacted and requested to review
and confirm his bid, he "believes" (Exhibit 10, p. 2), he mailed to the Contracting Officer a
copy of page 9 of the solicitation (Exhibit 10, p. 6), which contained his intended bid. The
Contracting Officer disclaims knowledge or possession of the document prior to award. However,
appellant admits he was thereafter again contacted by the Contracting Officer and requested to
confirm his bid in writing. Thus, it is clear to the Board that the Contracting Officer had not
received the copy of the "intended" bid. However, appellant alleges that along with his
December 20, 1983, confirmation of bid (Exhibit 5), he mailed another copy of page 9 of the
solicitation containing his "intended" bid. Again, the Contracting Officer disclaims knowledge
or possession of the document prior to award.
In response to a written request from the Board for punctuation of all attachments to
appellant's December 20, 1983, affidavit, the Contracting Officer stated:
"[t]here are no known attachments to Dependable Printing's confirming affidavit of December 20,
1983. No reference is made in the letter and there is no recollection of any attachments."
Exhibit 16. In response to the Board's request for the production of all attachments to
appellant's February 1, 1984, letter, the Contracting Officer stated:
"[i]t is not known exactly what was attached in the Dependable Printing letter of February 1, 1984,
however, enclosed are two groups of copied documents which were in our file."
Exhibit 16. Among the documents produced were two copies of page 9 of the solicitation containing
the "intended" bid. The Contracting Officer also produced his entire contract file for the Board's
inspection. The Board has carefully examined these documents. None of the copies of appellant's
"intended" bid sheet bear a time or date stamp showing when they were actually received by the
Contracting Officer.
The Contracting Officer claims he did not receive a copy of the "intended" bid until February 7,
1984, when he received appellant's February 1, 1984 letter and its attachments. A handwritten
note from the Contracting Officer dated February 10 states: "Bid prices don't match." Another
handwritten note dated February 10 indicates that the Contracting Officer examined appellant's
original bid submission and determined "they do not match what [contractor] sent in." Exhibit 8.
The Contracting Officer concluded, after further investigation, that he could not locate
"anything in this office that indicates we had any knowledge of pricing schedules differently
[sic] than what was submitted." Exhibit 8, p. 2.
The Board concludes that appellant has failed to establish that the Contracting Officer was in
possession of a copy of appellant's "intended" bid prior to award. The evidence leads the Board
to conclude that copies of the "intended" bid were not received by the Contracting Officer until
after the award. Thus, there is no evidence that the Contracting Officer had actual knowledge
of appellant's mistake in bid prior to award.
The second issue to be decided is whether the Contracting Officer had constructive notice of a
mistake in bid at the time of award.
Under the GPO's Printing Procurement Regulation (GPOPPR), a Contracting Officer must examine all
bids submitted for mistakes. In cases where the Contracting Officer has reason to believe that
a mistake may have been made, the bidder must be advised of the suspected mistake and requested
to verify the bid. GPOPPR Ch. IV, § 6.1. Appellant was telephonically contacted on December 6,
1983, and advised that a suspected error in bid might exist because of a $25,000 difference3 in
appellant's bid and the next lowest bidder for Category II. Mr. C. K. Rhodes, Secretary-
Treasurer of appellant, answered that "his prices were correct as bid." Exhibit 11, p. 1.
Appellant was subsequently asked to confirm his bid in writing. By letter dated December 20,
1983, Mr. Rhodes confirmed "the reviewed prices of Program 1433-S as bid by us." Exhibit 5.
Accordingly, relying on appellant's assurances of the accuracy of its bid, the Contracting
Officer made award to appellant. Exhibit 6. Under the relevant provisions of GPOPPR, if a
bidder verifies a bid, the Contracting Officer must consider it as originally submitted. GPOPPR
Ch. IV, § 6.3 b.(2).
In the instant case, appellant was given two opportunities to review and verify its bid. In
both instances, appellant verified that its bid was correct. The Contracting Officer had a
right to rely on this confirmation and make award. 47 Comp. Gen. 616 (1968); Comp. Gen. Dec.
B-151735 (Sept. 11, 1963); 39 Comp. Gen. 27 (1959). There is no evidence that the bid was so
out of line as to put the Contracting Officer on notice of a mistake notwithstanding the
appellant's verification.
Accordingly, the Board finds that the Contracting Officer did not have constructive or actual
notice of a mistake in bid prior to award.
B. Denial of Post-Award Relief
The next issue to be decided is whether the Contracting Officer was justified in denying
appellant's post-award request for relief based on an alleged mistake in bid. Appellant argues
that he should have been allowed to modify his bid to recover his "out of pocket cost" or
alternatively that the agency should have invoked the termination for convenience clause of the
contract. Exhibit 14.
Under applicable GPO regulations a Contracting Officer, with the approval of the Chairperson, GPO
Contract Review Board, is authorized in certain cases to increase the bidder's price4 "only on the
basis of clear and convincing evidence that a mistake in bid was made, and either that the mistake
was mutual or that the unilateral mistake made by the contractor was so apparent as to have charged
the Contracting Officer with notice of probability of mistake." (Emphasis added.) GPOPPR Ch. IV, §
6.4c. Thus to obtain a price increase, appellant must first provide clear and convincing evidence
of a mistake in bid.
Appellant, in response to the Contracting Officer's request for evidence in support of
appellant's allegation of a mistake in bid, supplied an affidavit. Exhibit 10, p. 2.
Appellant's affidavit, signed by C. Kenneth Rhodes, Jr., stated that an error had been made in
transferring the prices in Category II from "affiant's working copy to the triplicate Section 4
- Schedule of Prices as returned with his bid." Rhodes stated that when requested to confirm and
review his bid prices he only reviewed his working copy of the Schedule of Prices. However,
appellant did not submit any working papers to prove how appellant arrived at the prices it now
alleges were the intended prices. The Contracting Officer concluded that the material submitted
did not substantiate a claim of error in bid. Given the above circumstances, this Board finds
that the Contracting Officer's determination was not clearly erroneous.
Assuming arguendo that appellant proved by clear and convincing evidence that a mistake in bid
was actually made, to prevail appellant must also prove either the mistake was mutual or that
the unilateral mistake was so apparent as to have charged the Contracting Officer with notice of
the probability of a mistake in bid. GPOPPR Ch. IV, § 6.4c. There is no evidence of mutual
mistake and the evidence submitted by appellant does not clearly and convincingly establish that
the mistake was apparent. Appellant's Category II bid was only $14,605.22 lower than the next
lowest bidder and was confirmed twice by the appellant.
CONCLUSION
The Board concludes that the actions taken by the Contracting Officer were correct.
Accordingly, the Board denies the contractor's appeal.
August 23, 1985
KERRY L. MILLER
Chairman
JAMES L. LEONARD
Member
JOHN M. MARKOVCHICK
Member
_______________
1.Fifteen exhibits were initially submitted by the Contracting Officer. By letter dated June 26,
1985, the Board requested additional information. The materials submitted by the Contracting
Officer in response to the Board's request are enumerated as Exhibit 16.
2.Appellant made no claim of error in his Category I bid prices.
3.The actual difference between appellant's bid and the next lowest bidder was $14,605.22. Exhibit
4.
4.Such a price increase cannot exceed the price of the next lowest acceptable bid under the
original invitation for bids. GPOPPR Ch. IV, § 6.4b. (ii).