U.S. GOVERNMENT PRINTING OFFICE 

BOARD OF CONTRACT APPEALS 

WASHINGTON, D.C. 20401 

In the Matter of ) 

) 

the Appeal of ) 

) 

ST IVES, INC. ) Docket No. GPOBCA 12-93

Jacket No. 331-461 ) 

Purchase Order 88271 ) 

For the Appellant: St. Ives, Inc, 2025 McKinley Street, Hollywood, Florida , by William L. 

Dickey, Attorney at Law, Washington, DC. 

For the Government: Kerry L. Miller, Esq., Associate General Counsel, U.S. Government 

Printing Office. 

Before BERGER, Ad Hoc Chairman. 

DECISION AND ORDER

By Notice of Appeal filed on June 3, 1993, St. Ives, Inc. (Appellant or Contractor), 2025 

McKinley Street, Hollywood, Florida 33020, timely appealed the April 6, 1993, final decision of 

Contracting Officer John W. Adams of the U.S. Government Printing Office (GPO or Respondent) 

denying the Contractor’s post-award request for relief based on an assertion of a mistake in its 

bid under a contract identified as Jacket 331-461, Purchase Order 88271. See Rule 4 File, Tab M.1

 

 1

 The Contracting Officer’s appeal file, assembled pursuant to Rule 4 of the Board’s Rules 

of Practice and Procedure, dated September 17, 1984, was delivered to the Board on July 2, 1993. 

It will be referred to hereafter as the Rule 4 File, with an appropriate Tab letter also indicated. The 

Rule 4 File consists of 13 documents identified as Tab A through Tab M. 
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For the reasons which follow, the Contracting Officer’s decision is AFFIRMED and the appeal is 

DENIED.

2

I. BACKGROUND

On October 9, 1992, GPO issued an invitation for bid (Jacket 331-461) for 250,000 copies 

and a set of film negatives for a 28-page publication entitled “Air National Guard Planning Guide 

1993” (Planning Guide). In response, it received 14 responsive bids on the extended bid opening 

date of October 22, 1992, ranging from the Appellant’s low bid of $163,865 to a high bid of 

$290,000. Rule 4 File, Tab B. On October 27, upon noticing that the Appellant’s bid was $30,000 

lower than the next lowest bid, the Respondent contacted the Appellant, pointed out the $30,000 

difference, and requested the Appellant to review its bid. Specifically, the Appellant was told to 

review its worksheets to ensure that the bid was “all inclusive” and to check the stock and inks to 

make sure that nothing was left out. Rule 4 File, Tabs C and M. The Appellant responded by 

facsimile transmission on that same date, confirming its bid. The contract was awarded to the 

 2

 The Board’s decision is based on: ( a) the Appellant’s Notice of Appeal dated April 27, 

1993; (b) the Rule 4 File; (c) the Appellant’s Complaint dated July 2, 1993; (d) the Respondent’s 

Answer dated August 5, 1993; (e) Appellant’s Submission of Materials Requested in Order to Close 

the Record dated October 8, 1993 (hereinafter SMRCR); ( f) the Respondent’s Notice of Filing 

dated October 15, 1997; (g) the Respondent’s Brief dated November 8, 1993 (hereinafter R. Brf.); 

(h) the Brief of Appellant, St Ives Inc dated November 8, 1993 (hereinafter App. Brf.); (i) Report 

of Presubmission Telephone Conference dated November 29, 1993; (j) the Appellant’s Reply Brief 

and Completion of the Record dated January 14, 1994 (hereinafter App. R. Brf.), and accompanying 

Affidavits of Jeffrey R. Harris and Ernest E. Engle; (k) the Respondent’s Reply Brief dated January 

14, 1994 (hereinafter R. R. Brf.), and accompanying Declarations of Phyllis J. Kent, James 

Cameron, John Adams, and Sylvia S. Subt; and (l) Report of Oral Argument dated July 7, 1994. 

(Oral argument was heard on May 24, 1994, and was not transcribed. A hearing was not held in 

this case, the appellant having waived a hearing pursuant to Board Rules 8 and 11.) 
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Appellant on October 28, 1992. 

On October 29, 1992, the Appellant claimed a mistake in its bid, asserting that the bid was 

based on the wrong paper stock, JCP (Joint Committee on Printing) L60 instead of JCP L61 

(hereinafter L60 or L61), the stock required by the specifications. The Appellant, in a November 

2, 1992, letter to the Respondent, explained that it first requested a price quote on L61 stock, but 

that its paper supplier was not familiar with L61, which led both parties to believe that L61 was a 

typographical error and that L60 was the intended paper stock. The Contracting Officer concluded 

that Appellant’s claimed error did not entitle it to a remedy and denied the claim for relief. The 

Appellant, by this time aware that it could not perform the contract using either paper because of a 

compatibility problem between the paper and the Appellant’s presses, subcontracted the job, with 

the Respondent’s approval, to Gateway Press, Inc., the third lowest bidder, at that company’s bid 

price of $193,284. Rule 4 File, Tab H; Harris Affidavit; Adams Declaration; SMRCR. The 

Appellant seeks rescission or reformation of its contract with reimbursement for the difference 

between its contract price of $163,865 and the higher subcontract price. 

II. POSITIONS OF THE PARTIES 

A. The Appellant 

The Appellant argues that it made a unilateral mistake in its bid, that mistake being the 

assumption that the IFB’s requirement for L61 paper was a typographical error and that L60 paper 

was the actual requirement. The Appellant asserts that this was a reasonable mistake for it to make 

because L60 stock was the paper stock previously used for the Planning Guide and because the 

IFB did not highlight the fact that L61 paper had been substituted for L60 paper. Appellant argues 
4 

that the Government had “actual notice” that Appellant had misread the IFB because the 

Contracting Officer knew or should have known that Appellant’s sophisticated web presses could 

not use L61 paper stock. The Appellant further argues that the Respondent’s request that it review 

its bid was insufficient to alert it to its misreading of the IFB’s paper requirement. 

The Appellant further asserts that a mutual mistake was made in this case, that mistake 

being the belief of both parties, the Appellant and GPO, that paper stock L61 could run on 

Appellant’s presses to meet the requirements of this contract when in fact it could not. (At oral 

argument Counsel for the Appellant stated that the mutual mistake involved the assumption that 

either paper stock, L60 or L61, could run on Appellant’s presses but, as was subsequently 

discovered, neither could.) The Appellant believes this mutual mistake entitles it to relief. 

The Appellant further asserts that GPO erred in finding Appellant to be a responsible 

bidder because Appellant did not possess the equipment necessary to perform the contract using 

L61 paper. 

Based on the foregoing arguments, Appellant, as stated above, requests contract 

rescission or reformation or other appropriate relief including reimbursement of the difference 

between its contract price and the price of its subcontract with Gateway Press. 

B. The Respondent

The Respondent asserts that Appellant is not entitled to relief because the errors it made 

were errors of judgment rather than the type of errors, e.g., arithmetical error, misreading 

specifications, for which mistake-in-bid relief is available. Respondent further asserts that the 
5 

Contracting Officer properly discharged his bid verification duty, and that once Appellant verified 

its bid the Contracting Officer had no choice but to accept the bid, thereby giving rise to a binding 

contract. The Respondent further argues that the incompatibility of Appellant’s web presses with 

L61 paper is not a legitimate basis for a claim of mutual mistake. 

 III. ISSUES PRESENTED

1. Did the Appellant make a unilateral mistake in its bid for 

which relief is available? If so, did the Contracting Officer 

know or should he have known of the mistake prior to 

accepting the bid? If so, did the Contracting Officer 

adequately discharge his bid verification duty? 

2. Did the parties make a mutual mistake that requires the 

rescission or reformation of the contract? 

3. Did the Respondent improperly determine Appellant to be a 

responsible bidder? 

IV. DISCUSSION 

A. Unilateral Mistake

The rules governing unilateral mistakes are straightforward. 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 mistake in its bid, 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 mistake in bid rules, which are 
6 

nearly identical to the FAR provisions, require a contracting officer who suspects a mistake to 

advise the bidder of that fact and point out, “as appropriate,” that the bid is considerably lower 

than other bids received or the Government's estimate, that there are “important or unusual 

characteristics of the specifications,” that there are “changes in requirements from previous 

purchases of a similar item,” or “other data proper for disclosure that will put the bidder on notice 

of the suspected mistake.” Printing Procurement Regulations, GPO Pub. 305.3 (Rev. 10-

90)(hereinafter PPR), Chap. XI, Sec. 6, ¶ 3.(g) . If the bidder responds by alleging a mistake, the 

bidder is given an opportunity to establish by appropriate evidence that a mistake was made and 

to either withdraw or correct the bid. PPR Chap. XI, Sec. 6, ¶ 3. On the other hand, if the bidder 

verifies that the bid is correct as submitted, in most cases the bid may be accepted for award and 

the award will result in a binding contract. PPR Chap. XI, Sec. 6, ¶ 3.(g)(2) (“[i]f the bid is verified, 

the Contracting Officer shall consider the bid as originally submitted”); Peterman, Windham & 

Yaughn, Inc., 56 Comp. Gen. 239 (1977), 77-1 CPD ¶ 20. 

When a contractor first asserts a mistake-in-bid claim after award of the contract, what must 

be determined is whether the contracting officer, before award, knew or should have known of the 

possibility of an error in the bid. PPR Chap. XI, Sec. 6, ¶ 4.c. (relief is available if “. . . the . . . 

mistake made by the contractor was so apparent as to have charged the Contracting Officer with 

notice of probability of mistake”); Chernick v. United States, 178 Ct. Cl. 498, 372 F.2d 492 (1967); 

The Kato Corp., ASBCA 47601, 97-2 BCA ¶ 29,130. If the circumstances were such so as to put 

the contracting officer on notice of a possible mistake in a bid, the question becomes whether the 

contracting officer adequately discharged the required bid verification duty. United States v. 

Hamilton Enters., Inc., 711 F.2d 1038 (Fed. Cir. 1983). If he/she did not, a contract award to the 
7 

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 

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. XI, Sec. 6, ¶ 

4.c.; Olympic Graphic Sys., GPOBCA 01-92 (September 13, 1996), slip op., 1996 WL 812957. 

At the outset, it is important to note that relief is not available for every mistake that a bidder 

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, supra; Aydin Corp. v. United States, 

229 Ct. Cl. 309, 669 F.2d 681 (1982); 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., supra. Thus, a contractor will not be entitled to 

mistake-in-bid relief in all cases involving an inadequate verification request; the mistake made 

must be one cognizable under the mistake rules. Therefore, the Board first must consider the 

Respondent’s argument that the only error the Appellant made was essentially an error in business 

judgment, the type of error for which mistake-in-bid relief is not available. 

According to the Respondent, the Appellant’s error was three-fold: (1) Appellant assumed, 

without seeking clarification from the Contracting Officer, that because L60 paper had been used 

in the past, L61 paper specified in the IFB was a typographical error; (2) Appellant did not subscribe 

to the relevant publication that describes all JCP paper stocks, including L61, even though the 

information provided by the publication is essential to Appellant’s business; and (3) Appellant 
8 

submitted its bid without first determining if the specified paper would run on its presses. The 

Respondent considers these matters as involving business judgment rather than misunderstanding 

specifications. 

The Board does not agree with the Respondent on this issue. While Appellant clearly 

exercised some judgment based on its experience and knowledge as to what the paper stock 

specification provision actually meant, that does not make the error one of business judgment rather 

than one of specification misinterpretation. Experienced Government contractors do not read 

specifications in a vacuum, but can be expected to bring to that exercise their knowledge and 

general understanding of Government requirements and make judgments about what the 

specifications require in light of that knowledge and understanding. See generally Centre Mfg. 

Co., Inc., ASBCA 10854, 66-1 BCA ¶ 5613; Grand Central Aircraft Co., ASBCA 5128, 59-2 BCA 

¶ 2352. The exercise of that judgment in the interpretation of a specification cannot, when the 

judgment is erroneous, simply be labeled as business judgment when a contractor seeks mistakein-bid relief. To hold otherwise obviously would eliminate the misunderstanding/misinterpretation 

of specifications basis for mistake-in-bid relief. Moreover, Appellant’s failure to seek clarification 

from the Contracting Officer and to obtain an available publication describing the different paper 

stocks available does not, in the Board’s view, establish the nature of the mistake as either one of 

business judgment or one of misreading a specification—it simply bears on the avoidability of the 

mistake. 

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, 
9 

Jr. & Ralph C. Nash, Jr., Administration of Government Contracts 3d ed. 332 (The George 

Washington University, 1995) (hereinafter Nash & Cibinic, Administration). 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, 810 F.2d 

1153 (Fed. Cir. 1987)), 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 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 seems clear that the Appellant’s asserted error involves the 

nature of the work, not the effort to perform it. What is at issue is not, for example, the Contractor’s 

judgment as to the amount or type of labor or equipment needed to properly perform the job, but 

the nature of the final product, that is, the particular kind of paper stock on which the publication 

was to be printed. Errors in understanding or interpreting what the contract specifications require 

as a deliverable end product are exactly what is encompassed by the mistake-in-bid rules. BCM 

Corp. v. United States, supra; Wico, Inc., EBCA 125-6-80, 80-2 BCA ¶ 14,790. The Board 

concludes that the Appellant’s error is not one of business judgment, but one that is cognizable 

under the mistake-in-bid rules. 

Resolution of Appellant’s unilateral mistake in bid claim depends, therefore, on whether the 
10 

Contracting Officer adequately discharged his bid verification duty. It is not disputed that the 

Contracting Officer was on notice of a possible mistake in Appellant’s bid. That notice resulted 

from the $30,000 price disparity between Appellant’s bid and the next lowest bid, and led to the 

Respondent’s request to the Contractor that it review its bid. In making that request, the 

Respondent pointed out to the Appellant the precise basis—the $30,000 bid price differential—for 

its suspicion of error in the bid. Rule 4 File, Tabs C and M. The Appellant reviewed its bid and 

verified it, and the contract award followed. 

The Appellant asserts that the verification process was fatally flawed because the 

Respondent did not place Appellant on notice of Appellant’s actual error—misunderstanding what 

paper was required in performing the contract. There is no requirement, however, that the 

Respondent have done so. As set forth above, a contracting officer’s duty is to alert a bidder to a 

possible bid mistake when one is suspected and to the basis for the contracting officer’s belief that 

a mistake might have been made; there is no duty to divine exactly what error a bidder might have 

made and to point out that precise error in the verification request. Thus, the verification request 

cannot be considered faulty because it did not highlight for Appellant the actual basis for 

Appellant’s error; it is faulty only if the contracting officer knew or should have known of that basis 

or any other particular basis for the possible error in Appellant’s bid apart from what was brought 

to the Appellant’s attention—the dollar differential between Appellant’s bid and the next lowest 

bid, along with the request to check stock and inks, etc., to ensure that nothing was left out. 

The Board finds no flaw in the verification request. First, 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. While Appellant asserts that the Contracting 
11 

Officer knew or should have known that the specified paper stock could not be run on Appellant’s 

presses, the Contracting Officer denies this, R.R. Brf., Adams Declaration (see infra p. 16), and in 

any event it is not apparent why such knowledge, if it did exist, should have led to further knowledge 

or suspicion that the Appellant had decided to ignore the specifications and base its bid on using 

paper other than that called for by the specifications. In fact, Appellant itself concedes that the 

Contracting Officer was not aware of the actual error made. Complaint, ¶ 23 (“The true nature of 

the mistake . . . was not readily apparent to . . . the Contracting Officer . . .”); Rule 4 File, Tab H 

(“. . . the Contracting Officer was no more aware than the Contractor that this particular mistake 

had been made”). 

Second, the Board does not agree that the verification request should have included specific 

reference to the paper stock requirement. Appellant, relying on Chap. XI, Sec. 6, ¶ 3.(g) of the 

PPR (quoted above), asserts that the specifications had an “unusual characteristic” and represented 

a “change from previous similar purchases,” Complaint, ¶ 14, because L61 was a new paper stock 

with specifications not widely circulated to the public and because L60 stock had been previously 

specified for similar jobs, thereby requiring Respondent to direct Appellant to the L61 specification 

requirement when requesting verification. The regulations require information about unusual or 

changed specifications to be provided to “assure that the bidder will be put on notice of a mistake 

suspected by the Contracting Officer. . . .” PPR, Chap. XI, Sec. 6, ¶ 3.(g)(1). Since 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 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 some 33 percent lower than the next lowest 
12 

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 based on using less expensive paper than 

required by the specifications); 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, in the Board’s view the regulatory language does not require 

unusual or changed specification information to be provided as part of every verification request 

when such a specification exists, but means simply that the information should be provided when 

the contracting officer suspects or should suspect that the possible mistake arose from a failure to 

understand or appreciate the requirements of the unusual or changed specification provision. 

The Appellant has not explained exactly what the “unusual characteristic” of the L61 paper 

stock is that should have led the Contracting Officer to suspect a mistake in connection with the 

L61 requirement. The record also establishes that while the L61 specification was relatively new, 

it was not scarce or unavailable. It was included in Amendment No. 2 to No. 9 of the Government 

Paper Specification Standards issued by the JCP (R. R. Brf., Atch. 1); the Amendment was issued 

on June 1, 1992, and was distributed by the Respondent to subscribers by August 14, 1992, and 

was available to the public by subscription until April 29, 1993. R. R.Brf., Cameron Declaration. 

It is also apparent from the record that the Appellant is an experienced GPO contractor with a 

satisfactory performance record, R.R. Brf., Adams Declaration (St. Ives . . . has been successfully 

performing large GPO contracts for many years”), and therefore one about whom the Contracting 

Officer had no reason to suspect would not be familiar with, or at least aware of, the most recent 

specifications. Thus, although there is no dispute in the record concerning the actual unfamiliarity 

of the Appellant and its paper buyer with the specification, the record does not establish that the 
13 

Contracting Officer knew or should have known of this unfamiliarity such that he should have tied 

the suspected error in the 

Appellant’s bid to the paper specification even if, as the Appellant asserts, this was the first time 

the Respondent specified L61 paper3 for the type of publication involved in this procurement.4

Accordingly, the Board concludes that the Contracting Officer did not suspect and should 

not have suspected that the Appellant’s bid was based on the use of an incorrect paper stock, and 

that the verification request was legally adequate. 

This conclusion does not quite end our inquiry into the unilateral mistake issue. Although 

Respondent asserts that once bid verification is received the Contracting Officer need make no 

further inquiries and that generally the only appropriate course of action is to make award, R.Brf. 

at. 9, that is not precisely the rule. The Comptroller General has held that a contracting officer who 

suspects that a mistake has been made notwithstanding receipt of verification from the bidder has a 

duty to pursue the matter further with the bidder before accepting the bid5, William M. Young & 

 3

The prior solicitation for the Planning Guide, Jacket No. 300-761, issued on September 9, 

1991, did not identify a specific JCP code for the required paper, but Appellant states that “JCP L60 

had traditionally be[en] used.” App. Brf. at 5. 

4

 Indeed, the amount of the disparity between Appellant’s bid and the next lowest bid would 

suggest that the suspected error was not tied to the intended use of L60 paper instead of L61. 

According to Appellant, the cost of L60 paper needed for performing this contract was $78,386, 

while the cost for L60 paper would have been $124,740, a difference of $46,354. SMRCR. It 

seems reasonable that a bid based on L60 instead of L61 paper therefore likely would be understated 

by considerably more than the $30,000 that alerted the Contracting Officer to the mistake possibility 

here. 

5 See L. Washington & Assocs., Inc., B-276556 et al., June 26, 1997, 97-1 CPD ¶ 229, for 
14 

Co., B-188374, Apr. 18, 1977, 77-1 CPD ¶ 271, and ultimately should reject the bid if it is clear 

that a mistake has been made. See, e.g., American Independent Corp., B-258126; B-258126.2, 

Jan. 18, 1995 (unpub.); Tratoros Constr., Inc., B-254600, Jan. 4, 1994, 94-1 CPD ¶ 1; TLC 

Financial Group, B-237384, Jan. 26, 1990, 90-1 CPD ¶ 116 (a contracting officer may not accept 

an obviously erroneous bid). In this regard, both the FAR (§14.407-3(g)(5)) and the PPR (Chapt. 

XI, Sec. 6, ¶ 3(g)(4)) provide that where a bidder fails to furnish evidence in support of a suspected 

mistake, the contracting officer shall reject, rather than accept, the bid where the amount of the bid 

is so far out of line with other bids or there are other clear indications of error such that acceptance 

of the bid would be unfair to the bidder or to other bona fide bidders. See, e.g., R.P. Richards 

Constr. Co., B-260543, June 21, 1995, 95-1 CPD ¶ 280, recon. denied, B-260543.2, Aug. 23, 1995, 

95-2 CPD ¶ 80. Clearly erroneous bids subject to rejection under these provisions include those 

based on misinterpretations of solicitation requirements. Orbas & Assocs., B-255276, Feb. 23, 

1994, 94-1 CPD ¶ 139; Martin Contracting, B-241229.2, Feb. 6, 1991, 91-1 CPD ¶ 121. 

Appellant cannot prevail here, however, because the record does not establish that the 

Contracting Officer had any reason to believe, upon receipt of the Appellant’s verification, that 

there was a mistake in the Appellant’s bid. While the Appellant’s bid was $30,000 lower than the 

next lowest bid and no other bid was that much below the next lowest responsive bid, this 

procurement produced a wide swing in bid prices with a difference between the eighth and ninth 

lowest bid exceeding $26,000. Rule 4 File, Tab B. Moreover, while the Appellant’s price 

 

an example of multiple verification requests preceding agency decisions as to whether to accept a 

bid. 
15 

($655.58/m) was below the 1991 contract price ($770/m), Rule 4 File, Tab D, the 1992 contract 

called for a 25 percent greater quantity and the Appellant itself notes that it has “price advantages 

inherent in use of [its] sophisticated web-fed versus competitors sheet feed presses.” Rule 4 File, 

Tab H. In addition, the Contracting Officer knew St. Ives to be an experienced, well-established 

GPO printing contractor. R.R. Brf., Adams Declaration. Under the circumstances, the Board 

does not view the Appellant’s bid as so out of line with the other bids or the $30,000 difference 

between the Appellant’s bid and the next lowest bid as so clearly indicative of error despite the 

verification such that the Contracting Officer should not have accepted the Appellant’s bid. 

 B. Mutual Mistake

The rules governing mutual mistake are also simple. As relevant here, a contractor will be 

entitled to relief if both the contractor and the government, at the time of the contract award, made 

a mistake as to a basic assumption upon which the contract is based, the assumption had a material 

effect upon contract performance, and the contractor did not assume the risk of the mistake. 

Dairyland Power Co-op. v. United States, 16 F.3d 1197 (Fed. Cir. 1994); National Presto Ind., Inc. 

v. United States, 338 F.2d 99 (Ct. Cl. 1964), cert. denied, 380 U.S. 962 (1965); Morris v. United 

States, 33 Fed. Cl. 733 (1995); Bath Iron Works Corp., ASBCA 44617, 45232, 97-2 BCA ¶ 29,073. 

It is not enough that both parties make a mistake; both parties must make the same mistake. Natus 

Corp. v. United States, 371 F.2d 450 (Ct. Cl. 1967). If there is clear and convincing evidence that 

a mutual mistake was made, the contract may be rescinded or reformed. PPR, Chap. XI, Sec. 6, ¶ 

4.c. Appellant argues that a mutual mistake was made here in that both it and the Respondent 

incorrectly believed that the specified paper stock, L61, could run on Appellant’s presses. 
16 

According to the Appellant, the L61 paper is manufactured for sheet-fed presses and cannot be used 

on its web-fed presses. Appellant “submits that neither the Contracting Officer nor St Ives at the 

time of award . . . knew in fact that JCP L61 paper would not run on St Ives’ web fed presses. This 

was a mutual mistake of fact . . . .” App. Brf. at 7. The Respondent’s position is that the Contracting 

Officer had no knowledge that St. Ives lacked sheet-fed presses or that the L61 paper was not 

available for web presses. 

The Board is not persuaded that there was a mutual mistake here. Preliminarily, the Board 

notes that the Appellant’s factual assertions in support of its mutual mistake theory—to the effect 

that the Contracting Officer did not know that L61 (or even L60) paper would not work on 

Appellant’s web-fed presses—are inconsistent with its other factual assertions that the Contracting 

Officer knew or should have known that Appellant had web-fed pressses and that L61 paper would 

not work on those presses. Complaint at 2-3; App. Brf. at 6; Report of Oral Argument at 3. More 

importantly, the record does not establish that the Respondent made a mistake that is encompassed 

by the mutual mistake concept. 

First, there is no persuasive evidence that the Contracting Officer made the mistake alleged 

by the Appellant. The Contracting Officer states that he did not know that L61 paper was a sheetfed paper and did not know that the Appellant did not have sheet-fed presses. He explains: 

It is not a standard practice for Contracting Officers to inquire of 

large, well-established printing contractors whether they have web or 

sheet-fed presses. If a Contracting Officer receives a bid from a 

contractor, like St. Ives, that has been successfully performing large 

GPO contracts for many years, there is no need to conduct an inquiry 

to determine whether they have a certain type of press. It is the 

contractor’s obligation to ascertain their equipment needs and to 

decide whether their equipment can produce the product. . . . I did 

not know at the time of contract award that St. Ives lacked sheet-fed 
17 

presses. . . . 

Similarly, at the time of award, I did not have any knowledge that 

L61 paper was only available in sheet-fed form. Since all paper is 

manufactured on rolls at the factory, and the paper is then cut down 

into sheets, there is no such thing as a paper which cannot be 

manufactured in a form usable by web presses. The paper 

specifications do not limit the use of L61 to sheet-fed presses. 

R.R.Brf., Adams Declaration. The Board ascertains from this statement that the Contracting 

Officer did not make it his business to know about the particular types of presses used by GPO 

contractors, including St. Ives, and did not know or have any reason to know whether there would 

be a compatibility problem between St. Ives’ equipment and any particular paper stock. There is no 

evidence in the record that rebuts this declaration. Although Appellant asserts that GPO’s “on-file 

information on St Ives reflected it only had web presses that would not run the sheet fed only L61 

paper,” no evidence that this information exists, or that if it exists the Contracting Officer knew 

about it, has been introduced. Moreover, even if the Contracting Officer knew from such on-file 

information that St. Ives had only web-fed presses, that would not establish, in light of the 

Contracting Officer’s declaration, that the Contracting Officer had assumed anything with respect 

to the compatibility of those presses with the specified paper stock. In addition, while a preaward 

survey on Appellant found satisfactory such things as Appellant’s plant facilities and equipment 

and ability to meet the schedule, Rule 4 File, Tab E, it appears that this was a limited survey rather 

than the more detailed “full” survey utilized when a bidder’s responsibility cannot be readily 

determined from available information. PPR, Chap. 1, Sec. 5, ¶ 5. Nothing in the record 

establishes that this limited preaward survey led the Contracting Officer to make any assumptions 

about what equipment the Appellant had, how the equipment operated, or whether any particular 
18 

paper would or would not work with the equipment. In short, the Board finds nothing in the record 

that establishes the validity of the Appellant’s assertion that the Contracting Officer knew of the 

Appellant’s particular presses and assumed that the specified L61 paper could be run on those 

presses. 

Second, even if Appellant’s factual assertions were borne out by the record, as a legal matter 

the Board could not find that a mutual mistake was made that would provide a basis for relief. 

As set forth above, for a contractor to get relief there must be a mutual mistake of a basic 

assumption. As explained in Nash & Cibinic, Administration at 323, that basic assumption must 

be “a significant part of the bargaining process.” For example, in the leading case in this area, a 

mutual mistake was found to exist when it was discovered that a certain production method which 

was the subject of preaward discussion and which the contractor had agreed to use would not work. 

The court held that the parties had “reasonably labored . . . under a mutual mistake as to a most 

material set of facts.” National Presto Indus., Inc., v. United States, supra, at 108. The basic 

assumption about which the parties were mistaken was that the agreed upon production method was 

feasible. See also Air Compressor Prods., Inc., ASBCA 40015, 91-2 BCA ¶ 23,957 (where both 

parties mistakenly believed a particular compressor model would satisfy requirements) and 

Management & Training Corp. v. General Servs. Admin., GSBCA 11182, 93-2 BCA ¶ 25,814 

(where the parties were unaware of the true cost of utilities in government buildings). As the 

Federal Circuit stated in reviewing cases in this area: 

. . . where courts have reformed a contract, the parties recognize the 

existence of a fact about which they could negotiate, they mutually 

form a belief concerning that fact, but their belief is erroneous. In 

those cases the court may reform the contract to bring the parties’ 

agreement in accord with the true state of the facts. 
19 

 . . . . . 

Other cases in which courts have permitted reformation . . . similarly 

show that the parties had an erroneous belief concerning a fact whose 

existence the parties recognized and about which they could reach 

agreement. See, e.g., Southwest Welding & Mfg. Co. v. United 

States, 373 F.2d 982, 179 Ct. Cl. 39 (1967) (the parties mistakenly 

believed the price of steel was lower than it actually was); Walsh v. 

United States, 102 F. Supp. 589, 121 Ct. Cl. 546 (1952) (the parties 

erroneously believed the minimum wage rate was a certain amount, 

even though it had increased earlier); Aluminum Co. of America v. 

Essex Group, Inc., 499 F. Supp. 53 (W.D.Pa. 1980) (the parties 

erroneously believed that the Wholesale Price Index would 

accurately represent on labor production costs for the purpose of a 

contractual escalation clause). 

 . . . . . 

Atlas Corp. v. United States, 895 F.2d 745, 750-1 (Fed. Cir. 1990), cert. denied, 498 U.S. 811 

(1990). 

Here, there was no mutual error concerning anything that was part of the bargaining process 

or about which the parties could reach agreement. Stated another way, the alleged mistake, unlike 

in the cases cited above, does not directly involve a specific performance requirement or another 

contract term or condition. There is no mistake here about what is to be produced or the terms 

and conditions under which production, delivery, and contractor compensation are to occur. 

Rather, the mistake involves Appellant’s initial misunderstanding of the specifications and its 

ultimate judgment about its ability to meet the specifications with its own equipment. Clearly, the 

Respondent did not know of the misinterpretation and, as set forth above, had no common 

understanding with Appellant that Appellant could meet specification requirements by using any 

specific type of equipment. These circumstances do not permit the conclusion that a mutual 

mistake was made here that would entitle the Appellant to relief. See Natus Corp. v. United States, 
20 

supra, where the court held that a contractor, who sought mutual mistake relief when the production 

method it chose did not work, was not entitled to such relief because there was nothing “mutual” 

about the mistake—the contractor had unilaterally chosen the production approach, with the 

Government “at no time expressing any views as to how production should proceed.” 371 F.2d at 

14. 

C. Responsibility

The Appellant’s assertion that the Respondent erroneously found it to be a responsible 

bidder is not a matter for resolution by this Board. Bidder responsibility is a preaward matter and 

as such is not within the Board’s jurisdiction. Rose Printing, Inc., GPO BCA 32-95 (December 

16, 1996), slip op., 1996 WL 812880; Big Red Enters., GPO BCA 07-93 (August 30, 1996), slip 

op., 1996 WL 812960. 

ORDER

Considering the record as a whole, the Board finds and concludes that: (1) Appellant has 

not established by clear and convincing evidence that it is entitled to unilateral mistake-in-bid relief; 

(2) Appellant and the Respondent did not make a mutual mistake entitling the Appellant to any 

relief; and (3) the Board is without jurisdiction to consider the Appellant’s challenge to the 

Respondent’s determination that Appellant was a responsible bidder. Therefore, the Contracting 

Officer’s final decision denying relief is AFFIRMED and the appeal is DENIED. 

It is so Ordered.
21 

January 5, 1998 RONALD BERGER 

Ad Hoc Chairman 

GPO Board of Contract Appeals