B-170535, DEC. 2, 1970

B-170535: Dec 2, 1970

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THE CONTRACTING OFFICER IS PERMITTED TO CHANGE THE BID AND NOT PERMIT ITS WITHDRAWAL IN CONFORMITY WITH THE ASPR WHEN HE HAS BEEN FURNISHED "CLEAR AND CONVINCING EVIDENCE" AS TO THE EXISTENCE OF A MISTAKE IN BID. WHAT THE BIDDER ACTUALLY INTENDED TO BID PROVIDED THE UNCORRECTED BID AND THE BID AS CORRECTED IS THE LOWEST BID RECEIVED. A FINDING BY THE SBA THAT THE SUCCESSFUL BIDDER HAD THE STATUS OF A SMALL BUSINESS CONCERN FOR THE PURPOSES OF THIS PROCUREMENT IS CONCLUSIVE ON OFFICERS OF THE GOVERNMENT HAVING PROCUREMENT POWERS. THERE IS NO LEGAL BASIS TO OBJECT TO THE AWARD AND THE PROTEST IS DENIED. WIENER & ROSS: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 17. THE INVITATION WAS ISSUED ON JUNE 25.

B-170535, DEC. 2, 1970

BID PROTEST - MISTAKE - MODIFIED BID DENIAL OF PROTEST BY ARDEN ENGINEERING ATLANTIC CONTRACTORS, INC. AGAINST AWARD OF CONTRACT TO CONSTRUCCIONES WERL ISSUED BY COMMANDER, ATLANTIC DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, NORFOLK, VIRGINIA FOR CONSTRUCTION OF AN OPEN ALERT HANGER AT MUNIZ AIR NATIONAL GUARD BASE, PUERTO RICO INTERNATIONAL AIRPORT, CAROLINA, PUERTO RICO. WHERE BID ERROR OCCURED IN A TELEPHONIC TRANSMISSION OF A BID MODIFICATION TO THE TELEGRAPH OFFICE AND THE COMPANY WORKSHEETS SUBSTANTIATE THE CLAIMED ERROR, THE CONTRACTING OFFICER IS PERMITTED TO CHANGE THE BID AND NOT PERMIT ITS WITHDRAWAL IN CONFORMITY WITH THE ASPR WHEN HE HAS BEEN FURNISHED "CLEAR AND CONVINCING EVIDENCE" AS TO THE EXISTENCE OF A MISTAKE IN BID, ITS NATURE, HOW IT OCCURED, AND WHAT THE BIDDER ACTUALLY INTENDED TO BID PROVIDED THE UNCORRECTED BID AND THE BID AS CORRECTED IS THE LOWEST BID RECEIVED. FURTHER, A FINDING BY THE SBA THAT THE SUCCESSFUL BIDDER HAD THE STATUS OF A SMALL BUSINESS CONCERN FOR THE PURPOSES OF THIS PROCUREMENT IS CONCLUSIVE ON OFFICERS OF THE GOVERNMENT HAVING PROCUREMENT POWERS. THEREFORE, THERE IS NO LEGAL BASIS TO OBJECT TO THE AWARD AND THE PROTEST IS DENIED.

TO WACHTEL, WIENER & ROSS:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 17, SEPTEMBER 3, AND NOVEMBER 10, 1970, PROTESTING, ON BEHALF OF ARDEN ENGINEERING ATLANTIC CONTRACTORS, INC., ANY AWARD TO CONSTRUCCIONES WERL, INC., ON THE BASIS OF ITS TELEGRAPHICALLY MODIFIED BID SUBMITTED IN RESPONSE TO NAVY INVITATION FOR BIDS NO. N62470-70-B-1171, ISSUED BY THE COMMANDER, ATLANTIC DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, NORFOLK, VIRGINIA.

THE INVITATION WAS ISSUED ON JUNE 25, 1970, FOR CONSTRUCTION OF AN OPEN ALERT HANGAR AT MUNIZ AIR NATIONAL GUARD BASE, PUERTO RICO INTERNATIONAL AIRPORT, CAROLINA, PUERTO RICO. TWO BIDS WERE RECEIVED AND WERE OPENED AT 2 P.M., E.D.S.T., AUGUST 4, 1970, AT THE ISSUING OFFICE:

CONSTRUCCIONES WERL $229,928

ARDEN ENGINEERING 307,000 THE GOVERNMENT ESTIMATE WAS $295,057.

BOTH THE ABOVE BIDS HAD BEEN MODIFIED BY TELEGRAMS RECEIVED PRIOR TO OPENING REDUCING THE ORIGINAL BID PRICES. THE ORIGINAL BID OF WERL HAD BEEN $600,000, AND ARDEN ENGINEERING HAD BEEN IN THE AMOUNT OF $540,000.

DUE TO THE WIDE DISCREPANCY BETWEEN THE BIDS AND THE GOVERNMENT ESTIMATE, WERL WAS REQUESTED TO VERIFY ITS BID OF $229,928. WERL ADVISED THAT THE TIMELY TELEGRAPHIC BID MODIFICATION WHICH READ: "REDUCE OUR PROPOSAL BY 370,072.00 DOLLARS" SHOULD HAVE READ "300,072.00 DOLLARS." THIS WAS CONFIRMED IN WRITING BY LETTER DATED AUGUST 5, 1970, WHICH REQUESTED PERMISSION TO WITHDRAW THE BID AND FORWARDED ITS WORKSHEETS AS EVIDENCE OF ITS INTENDED BID AND PRICE REDUCTION. HOWEVER, BY LETTER DATED AUGUST 7, 1970, WERL REQUESTED THAT AWARD BE MADE TO IT FOR THE AMOUNT OF ITS CORRECTED BID (299,928), IF THIS WERE POSSIBLE. IN SUPPORT OF THIS REQUEST, THE CONFIRMATION COPY OF THE TELEGRAM WAS SUBMITTED. THIS COPY APPEARS TO DEMONSTRATE THAT THE FIGURE "300" WAS STRUCK BY THREE "X'S" BEFORE THE FIGURE "370,072.00" WAS ENTERED. BY MESSAGE DATED AUGUST 12, 1970, THE TELEGRAPH COMPANY CORRECTED THE PREVIOUS TELEGRAM TO READ "300,072.00."

YOU PROTEST THAT IF A MISTAKE IN BID IS CONTENDED BY WERL AND IF THE MISTAKE IS CLAIMED TO BE DUE TO AN ERROR IN THE TRANSMISSION OF THE TELEGRAM, THEN IT IS ARDEN'S POSITION THAT THE GOVERNMENT EITHER CAN ACCEPT THE BID AT $229,928 OR PERMIT ITS WITHDRAWAL. YOU PROTEST ANY AWARD TO WERL AT ITS CORRECTED BID PRICE OF $299,928.

THE CONTRACTING OFFICER CONSIDERS THAT BOTH THE ERROR AND THE INTENDED BID ARE EVIDENT FROM THE TELEGRAMS AND WERL'S WORKSHEETS. HE, THEREFORE, REQUESTS PERMISSION TO CORRECT THE LOW BID OF WERL TO $299,928 PURSUANT TO PARAGRAPH 2-406.3(A)(2) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR). THAT PROVISION READS:

"(2) HOWEVER, IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO EXISTENCE OF THE MISTAKE AND AS TO THE BID ACTUALLY INTENDED, AND IF THE BID, BOTH AS UNCORRECTED AND AS CORRECTED, IS THE LOWEST RECEIVED, A DETERMINATION MAY BE MADE TO CORRECT THE BID AND NOT PERMIT ITS WITHDRAWAL."

THE QUESTION WHETHER A BIDDER MAY CHANGE A BID AFTER OPENING AND PRIOR TO AWARD BECAUSE OF A MISTAKE THEREIN ALWAYS PRESENTS A MATTER OF SERIOUS CONCERN. IN ORDER TO AUTHORIZE CORRECTION OF A BID, THE BIDDER MUST FURNISH EVIDENCE WHICH CONCLUSIVELY ESTABLISHES NOT ONLY THE EXISTENCE OF THE MISTAKE BUT ITS NATURE, HOW IT OCCURRED, AND WHAT THE BIDDER ACTUALLY INTENDED TO BID. ASPR 2-406.3(D). THE FORM OF SUCH EVIDENCE NECESSARILY WILL VARY WITH THE CIRCUMSTANCES OF EACH CASE, BUT THE EVIDENCE NECESSARILY MUST BE THE BEST AVAILABLE.

THE ERROR IS ALLEGED TO HAVE OCCURRED IN A TELEPHONIC TRANSMISSION OF A BID MODIFICATION TO THE TELEGRAPH OFFICE. IN PHONING, IT IS ALLEGED THAT THE AMOUNT OF THE MODIFIED BID DEDUCTION OF $300,072 WAS ERRONEOUSLY TRANSMITTED AS $370,072. THE TELEGRAPH COMPANY HAS ISSUED A CORRECTION OF THE MESSAGE SENT APPARENTLY TO REFLECT THE MESSAGE RECEIVED FROM THE BIDDER. HOWEVER, THE WORKSHEETS SHOW THE ORIGINAL BID OF $600,000, A NEW BID OF $299,928, AND A "CUT" OF $300,072. HENCE, ASIDE FROM THE ALLEGED ERRONEOUS TELEGRAPHIC MESSAGE, WE FEEL THAT THE WORKSHEETS SUBSTANTIATE THE NATURE OF WERL'S ERROR AND ITS INTENDED BID.

WE THEREFORE CONCLUDE THAT "CLEAR AND CONVINCING EVIDENCE" HAS BEEN PRESENTED AS TO THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED WITHIN THE PURVIEW OF ASPR 2-406.3(A). SEE CHRIS BERG, INC. V UNITED STATES, CT. CL. NO. 235-68, DECIDED MAY 15, 1970.

ACCORDINGLY, AND SINCE WERL'S BID AS CORRECTED WILL STILL BE THE LOWEST BID RECEIVED, WE FIND NO LEGAL BASIS TO OBJECT TO AN AWARD TO SUCH BIDDER IF OTHERWISE PROPER.

WITH REGARD TO THE QUESTION OF SIZE STATUS OF THE LOW BIDDER RAISED BY YOU, WE ARE IN RECEIPT OF A COPY OF A COMMUNICATION FROM THE SMALL BUSINESS ADMINISTRATION, PUERTO RICO REGIONAL OFFICE, ADDRESSED TO THE COMMANDER, ATLANTIC DIVISION, NAVAL FACILITIES ENGINEERING COMMAND, TO THE EFFECT WERL WAS A SMALL BUSINESS CONCERN FOR THE PURPOSES OF THIS PROCUREMENT. UNDER THE PROVISION OF 15 U.S.C. 637(B)(6), SUCH DETERMINATION IS CONCLUSIVE ON OFFICERS OF THE GOVERNMENT HAVING PROCUREMENT POWERS. IN THE CIRCUMSTANCES, YOUR PROTEST IS DENIED.