B-172578, JUL 22, 1971

B-172578: Jul 22, 1971

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PROTESTANT CONTENDS THAT IT WAS ERRONEOUS FOR THE CONTRACTING AGENCY TO ALLOW THE LOW BIDDER TO CORRECT A MISTAKE IN THE BID. ASPR 2-406.3(A)(3) PROVIDES THAT A MISTAKE IN BID MAY BE CORRECTED WHERE THERE IS CLEAR AND CONVINCING EVIDENCE AS TO THE EXISTENCE OF A MISTAKE. THE AUTHORITY TO CORRECT SUCH MISTAKES IS VESTED IN THE PROCURING ACTIVITY BY ASPR 2-406.3(B)(1). THE WEIGHT TO BE GIVEN THE EVIDENCE IS A QUESTION TO BE DECIDED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR. JR.: REFERENCE IS MADE TO YOUR LETTERS OF APRIL 14 AND 30. THE INVITATION WAS ISSUED ON FEBRUARY 10. BIDS WERE OPENED AT 11 A.M. THE BIDS RECEIVED WERE AS FOLLOWS: CHRIS BERG. 000 THE GOVERNMENT ESTIMATE FOR THE PROJECT WAS $7.

B-172578, JUL 22, 1971

BID PROTEST - MISTAKE IN BID DENIAL OF PROTEST ON BEHALF TWIN CITY CONSTRUCTION COMPANY AGAINST AWARD OF A CONTRACT TO CHRIS BERG. INC., UNDER AN IFB ISSUED BY THE U.S. ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA, FOR THE CONSTRUCTION OF SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM NONTECHNICAL SUPPORT FACILITIES. PROTESTANT CONTENDS THAT IT WAS ERRONEOUS FOR THE CONTRACTING AGENCY TO ALLOW THE LOW BIDDER TO CORRECT A MISTAKE IN THE BID. ASPR 2-406.3(A)(3) PROVIDES THAT A MISTAKE IN BID MAY BE CORRECTED WHERE THERE IS CLEAR AND CONVINCING EVIDENCE AS TO THE EXISTENCE OF A MISTAKE, AND THE ACTUAL, INTENDED BID. THE AUTHORITY TO CORRECT SUCH MISTAKES IS VESTED IN THE PROCURING ACTIVITY BY ASPR 2-406.3(B)(1), AND THE WEIGHT TO BE GIVEN THE EVIDENCE IS A QUESTION TO BE DECIDED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR. THE COMP. GEN. FEELS THAT THE RECORD HERE SUPPORTS THE DETERMINATION OF THE CONTRACTING AGENCY.

TO MR. MILLARD F. OTTMAN, JR.:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 14 AND 30, 1971, PROTESTING ON BEHALF OF THE TWIN CITY CONSTRUCTION COMPANY, FARGO, NORTH DAKOTA, AGAINST THE AWARD OF A CONTRACT TO CHRIS BERG, INC., UNDER INVITATION FOR BIDS NO. DACA87-71-B-0030, ISSUED BY THE UNITED STATES ARMY ENGINEER DIVISION, HUNTSVILLE, ALABAMA.

THE INVITATION WAS ISSUED ON FEBRUARY 10, 1971, SOLICITING BIDS FOR CONSTRUCTION OF SAFEGUARD BALLISTIC MISSILE DEFENSE SYSTEM NONTECHNICAL SUPPORT FACILITIES IN THE VICINITY OF GRAND FORKS, NORTH DAKOTA. BIDS WERE OPENED AT 11 A.M. ON MARCH 23, 1971. THE BIDS RECEIVED WERE AS FOLLOWS:

CHRIS BERG, INC. $7,445,200

TWIN CITY CONSTRUCTION COMPANY 8,029,839

BURGESS CONSTRUCTION CO. 8,284,000

THE WERTZ COMPANY, INC. 8,334,000

ALLEN M. CAMPBELL COMPANY 8,809,200

ORVILLE E. MADSEN & SON, INC. 9,266,000

MORRISON-KNUDSEN COMPANY, INC. 9,617,000

THE GOVERNMENT ESTIMATE FOR THE PROJECT WAS $7,966,542.

BY LETTER OF MARCH 23, 1971, HAND-DELIVERED THAT DAY, THE LOW BIDDER ALLEGED A MISTAKE INVOLVING OMISSION FROM THE BID OF THE AMOUNT OF $283,107 DUE TO THE INADVERTENT FAILURE TO INCLUDE IN THE FINAL BID PRICE TWO SUBCONTRACTOR QUOTE ADJUSTMENTS. AFTER CONSIDERATION OF THE ALLEGED ERROR, THE DOCUMENTARY EVIDENCE SUBMITTED IN SUPPORT THEREOF, AND THE REQUEST FOR CORRECTION OF THE BID, THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, PURSUANT TO AUTHORITY DELEGATED UNDER PARAGRAPH 2- 406.3(B)(1) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), MADE A DETERMINATION AND FINDINGS READING IN PERTINENT PART AS FOLLOWS:

"A. PRIOR TO COMING TO GRAND FORKS FOR THE BID OPENING, THE BIDDER HAD PREPARED A BLANKET ESTIMATE TO ENABLE IT TO 'PLUG IN' FIGURES LATER. THUS, WHILE STILL AT ITS HOME OFFICE IN SEATTLE, THE BIDDER ESTIMATED EITHER PRELIMINARY BUDGET FIGURES OR TENTATIVELY USED THE PRELIMINARY SUBBIDS RECEIVED FROM SUBCONTRACTORS AND THEN LATER 'PLUGGED IN' THE ACTUAL FIGURES. MARKUP FOR OVERHEAD AND PROFIT WERE DETERMINED EARLIER AND WERE NOT AFFECTED BY SUBSEQUENT REFIGURING OF THE REST OF THE BID.

"B. ON THE NIGHT BEFORE THE BID OPENING, SUBBIDS AND REVISIONS WERE BEING RECEIVED UNTIL LATE AT NIGHT. FOR THE MECHANICAL WORK, A REPRESENTATIVE OF DETWEILER CAME IN AROUND 9:00 P.M. IN THE EVENING AND LEFT AN ESTIMATE. HOWEVER, THIS ESTIMATE INCLUDED PRICES FOR ONLY ABOUT 20% OF HIS BID. DETWEILER ADVISED THAT HE WOULD RETURN LATER WITH THE REMAINDER OF THE PRICES. AT 11:00 P.M., MR. DETWEILER RETURNED AND FILLED IN THE REMAINING FIGURES IN PENCIL ON HIS BID FORM. THE ESTIMATE FOR THE BIDDER NEVER SUBSTITUTED THE SUBBID AND USED INSTEAD THE BUDGET ESTIMATE FIGURES. ON THE MORNING OF THE BID OPENING, DETWEILER REDUCED HIS BID BY $75,000 AND THIS AMOUNT WAS DEDUCTED FROM THE ERRONEOUS BID. THE TOTAL SUBBID SUBMITTED BY DETWEILER AMOUNTED TO $1,622,460 AND THE AMOUNT USED BY THE BIDDER WAS $1,455,637. SUBTRACTING THE $75,000 FROM THESE AMOUNTS CHANGES THE TOTAL MECHANICAL BID ACTUALLY SUBMITTED TO $1,380,637 AND THE REDUCED AMOUNT OF THE SUBBID TO $1,547,460. THE TOTAL OMISSION AMOUNTS TO $166,823.

"C. ON 16 MARCH 1971, A PRELIMINARY MASONRY SUBBID WAS SUBMITTED BY INTER -STATE MASONRY CONSTRUCTION, INC., TO THE BIDDER IN THE AMOUNT OF $370,000. BY TELEPHONE, ON 22 MARCH 1971, INTER-STATE INCREASED HIS OVERALL BID BY 10%. THIS CHANGE WAS NOTED AND THESE FIGURES WERE ACTUALLY USED. THE NIGHT BEFORE BID OPENING, INTER-STATE BORROWED PLANS AND SPECIFICATIONS FROM THE BIDDER TO RECHECK ITS FIGURES. IN THE COURSE OF ITS REVIEW, INTER-STATE DISCOVERED IT HAD OVERLOOKED SOME ADDENDA IN PREPARING ITS EARLIER SUBBID WHICH INCREASED THE AMOUNTS SUBMITTED. INTER -STATE REVISED ITS BID AND HANDED IN A CHANGED SUBBID OF $523,214. HOWEVER, THE BIDDER ASSUMED THIS WAS MERELY A CONFIRMATION OF THE EARLIER SUBBID, AND DID NOT INCLUDE THE INCREASED SUBBID IN ITS BID SUBMITTED TO THE GOVERNMENT.

"D. THE TOTAL AMOUNT OF THE OMISSIONS IS $283,037 RATHER THAN THE $283,107 CLAIMED BY THE BIDDER. THIS ERROR IN ADDITION WAS DISCOVERED IN THE COURSE OF CHECKING THE CONTRACTOR'S FIGURES.

"5.THE BIDDER HAS SUBMITTED ITS DETAILED WORK SHEETS, AND SWORN STATEMENTS FROM THE BIDDER'S PRESIDENT AND THE SUBBIDDERS INVOLVED IN SUPPORT OF ITS ALLEGATIONS.

DETERMINATION & FINDING

"1. AFTER EXAMINATION OF ALL THE EVIDENCE, I FIND THAT (A) CHRIS BERG, INC., HAS ALLEGED THAT IT MADE A MISTAKE IN ITS BID UNDER IFB DACA 87-71-B -0030; (B) THE EXISTENCE OF THE MISTAKE HAS BEEN SHOWN BY CLEAR AND CONVINCING EVIDENCE; AND (C) THE INTENDED BID HAS BEEN SHOWN BY CLEAR AND CONVINCING EVIDENCE.

"2. BASED ON THE ABOVE AND PURSUANT TO THE AUTHORITY VESTED IN ME BY ASPR 2-406.3(B)(1), AUTHORITY IS HEREBY GRANTED TO THE CONTRACTING OFFICER TO PERMIT CHRIS BERG, INC., TO INCREASE ITS BID FROM $7,445,200.00 TO $7,728,237.00."

OUR OFFICE HAS HELD THAT, TO PERMIT CORRECTION OF AN ERROR IN BID PRIOR TO AWARD, A BIDDER MUST SUBMIT CLEAR AND CONVINCING EVIDENCE THAT AN ERROR HAS BEEN MADE, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE INTENDED BID PRICE. SEE 49 COMP. GEN. 480, 482 (1970). THE SAME BASIC REQUIREMENTS FOR THE CORRECTION OF A BID ARE FOUND IN ASPR 2 406.3(A)(3) WHICH PROVIDES:

"WHERE A BIDDER REQUESTS PERMISSION TO CORRECT A MISTAKE IN HIS BID AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE; *** "

WHILE YOU CONCEDE, ARGUENDO, THAT THE EVIDENCE IN THIS CASE CORROBORATES THE EXISTENCE OF A MISTAKE IN BID BY CHRIS BERG, YOU CONTEND THAT THE AMOUNT OF CHRIS BERG'S INTENDED BID WAS NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE AND, THEREFORE, IT WAS AN ERROR FOR THE CORRECTION TO HAVE BEEN ALLOWED. THEREFORE, YOU CONTEND THAT CHRIS BERG SHOULD HAVE BEEN ALLOWED TO WITHDRAW THE BID RATHER THAN TO CORRECT IT. HOWEVER, THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER BID OPENING BUT PRIOR TO AWARD IS VESTED IN THE PROCURING AGENCY BY ASPR 2-406.3(B)(1) AND THE WEIGHT TO BE GIVEN THE EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF THE EVIDENCE. 41 COMP. GEN. 160, 163 (1961). UNDER THE CIRCUMSTANCES OF THIS CASE AND THE RECORD BEFORE US, WE BELIEVE THAT THE DETERMINATION TO CORRECT IS SUPPORTED BY SUFFICIENT EVIDENCE OF THE ERROR AND THE INTENDED BID.

ACCORDINGLY, THE PROTEST IS DENIED.