B-172955, JUL 8, 1971, 51 COMP GEN 18

B-172955: Jul 8, 1971

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REQUESTED AWARD ON THE BASIS OF ITS LOW SUBMITTED BID IS PROPER WHERE SUBMITTED WORKSHEETS DO NOT SUPPORT THE ERROR ALLEGED OR ESTABLISH THE INTENDED BID PRICE WAS SOMETHING OTHER THAN THE AMOUNT BID AND. THE ERROR ALLEGED IS CONSIDERED A JUDGMENTAL ERROR THAT MAY NOT BE CORRECTED OR SERVE AS THE BASIS FOR WITHDRAWAL OF THE BID. THE UNITED STATES GENERAL ACCOUNTING OFFICE WILL NOT CONDUCT A COMPLETE REVIEW OF THE WORKPAPERS. BIDS WERE OPENED ON MARCH 30. WAS LOW BIDDER WITH A BID PRICE OF $13. WAS SECOND LOW BIDDER WITH A BID PRICE OF $14. BECAUSE THE LOW BIDDER WAS APPROXIMATELY 22.89 PERCENT BELOW THE GOVERNMENT COST ESTIMATE FOR THE CONTRACT. IT WAS ALLEGED THAT BROYLES & BROYLES INC.

B-172955, JUL 8, 1971, 51 COMP GEN 18

BIDS - MISTAKES - ALLEGATION WITHDRAWAL - AWARD OF CONTRACT THE AWARD OF A CONSTRUCTION CONTRACT TO THE LOW BIDDER WHO WITHDREW AN ALLEGATION OF ERROR, CONFIRMED THE ORIGINAL BID PRICE, AND REQUESTED AWARD ON THE BASIS OF ITS LOW SUBMITTED BID IS PROPER WHERE SUBMITTED WORKSHEETS DO NOT SUPPORT THE ERROR ALLEGED OR ESTABLISH THE INTENDED BID PRICE WAS SOMETHING OTHER THAN THE AMOUNT BID AND, THEREFORE, THE ERROR ALLEGED IS CONSIDERED A JUDGMENTAL ERROR THAT MAY NOT BE CORRECTED OR SERVE AS THE BASIS FOR WITHDRAWAL OF THE BID. FURTHERMORE, THE LOW BIDDER IN CONFIRMING ITS BID PRICE, WAIVED AN UNDERADDITION ERROR FOUND BY THE CONTRACTING OFFICER, AND NO OTHER ERROR HAVING BEEN ALLEGED BY THE BIDDER, THE UNITED STATES GENERAL ACCOUNTING OFFICE WILL NOT CONDUCT A COMPLETE REVIEW OF THE WORKPAPERS, FOR ANY DISCREPANCIES THAT MAY BE FOUND WOULD NOT ESTABLISH ERRORS IF THE BIDDER CONTENDED OTHERWISE.

TO CAPELL, HOWARD, KNABE AND COBBS, P.A., JULY 8, 1971:

WE REFER TO YOUR LETTER DATED MAY 13, 1971, AND SUBSEQUENT MEMORANDA AND AFFIDAVITS, PROTESTING ON BEHALF OF ALGERNON-BLAIR INDUSTRIAL CONTRACTORS, INC., AGAINST AWARD OF A CONTRACT TO PERCE, DEMOSS KING, INC., UNDER INVITATION FOR BIDS DACA01-71-0039, ISSUED BY THE UNITED STATES ARMY ENGINEER DISTRICT, MOBILE, ALABAMA. THE CONTRACT COVERS CONSTRUCTION OF THREE CONTINUOUS PROCESS TNT LINES AT THE VOLUNTEER ARMY AMMUNITION PLANT, CHATTANOOGA, TENNESSEE.

BIDS WERE OPENED ON MARCH 30, 1971. PEARCE, DEMOSS & KING, INC., WAS LOW BIDDER WITH A BID PRICE OF $13,083,504. ALGERNON-BLAIR INDUSTRIAL CONTRACTORS, INC., WAS SECOND LOW BIDDER WITH A BID PRICE OF $14,360,000. BECAUSE THE LOW BIDDER WAS APPROXIMATELY 22.89 PERCENT BELOW THE GOVERNMENT COST ESTIMATE FOR THE CONTRACT, THE CONTRACTING OFFICER REQUESTED BY TELEPHONE ON APRIL 1, 1971, THAT THE LOW BIDDER VERIFY ITS BID. BY ITS TELEGRAM OF APRIL 7 THE LOW BIDDER ALLEGED A MISTAKE IN BID AND REQUESTED PERMISSION TO MAKE CORRECTION. IN ITS LETTER OF APRIL 19, THE LOW BIDDER ALLEGED THAT THE BID MISTAKE RESULTED FROM AN ERRONEOUS QUOTE SUBMITTED TO IT BY ITS MECHANICAL SUBCONTRACTOR, BROYLES & BROYLES INC. IN THIS LETTER, IT WAS ALLEGED THAT BROYLES & BROYLES INC. HAD GIVEN IT A QUOTE OF $6,442,148 RATHER THAN $6,841,592 - A DIFFERENCE OF $399,444. THIS ERROR IS STATED TO BE ATTRIBUTED TO THE ERRONEOUS USE OF A LABOR FACTOR OF 1.10 RATHER THAN 1.50 BY THE SUBCONTRACTOR'S ESTIMATOR. WE HAVE NO DEFINITE INFORMATION REGARDING THIS FACTOR OTHER THAN THE ALLEGATION THAT THE INADVERTENT USE OF THE LOWER FACTOR BY BROYLES & BROYLES INC. RESULTED IN A $399,444 UNDERQUOTE TO PEARCE, DEMOSS & KING. IN SUPPORT OF THE CLAIM OF ERROR, THE WORKSHEETS OF BOTH PEARCE, DEMOSS & KING AND BROYLES & BROYLES WERE FURNISHED TO THE CONTRACTING OFFICER. AFTER A REVIEW OF THESE WORKPAPERS, THE CONTRACTING OFFICER FOUND NO BASIS TO CONCLUDE THAT A 1.10 LABOR FACTOR WAS USED INCORRECTLY OR THAT A 1.50 FACTOR WAS INTENDED BY BROYLES & BROYLES. WE FOUND NO DATA ESTABLISHING THAT PEARCE, DEMOSS & KING WAS AWARE THAT THE CORRECTNESS OF SUCH QUOTE WAS IN DOUBT WHEN IT SUBMITTED ITS BID TO THE CORPS IN RESPONSE TO THE INVITATION. BASED UPON HIS EXAMINATION, THE CONTRACTING OFFICER CONCLUDED THAT THE RECORD DID NOT ESTABLISH THE ALLEGED ERROR OR THAT THE INTENDED BID WAS SOMETHING MORE THAN THE AMOUNT BID. HE THEREFORE RECOMMENDED THAT AWARD BE MADE TO PEARCE, DEMOSS & KING AT ITS LOW SUBMITTED BID PRICE.

AT THIS JUNCTURE, WE MUST POINT OUT THAT AN APPARENT $33,998 UNDERADDITION ERROR WAS FOUND BY THE CONTRACTING OFFICER IN HIS REVIEW OF THE WORKPAPERS. WE ARE IN RECEIPT OF A COPY OF A LETTER DATED JUNE 2, 1971, WHEREBY PEARCE, DEMOSS & KING WITHDREW ITS ALLEGATION OF ERROR, CONFIRMED ITS ORIGINAL BID PRICE OF $13,083,504 AND REQUESTED AWARD ON THE BASIS OF THAT BID. HENCE, WE WILL REGARD THE $33,998 ERROR AS HAVING BEEN WAIVED. WE HAVE BEEN INFORMALLY ADVISED BY THE CORPS THAT THE BIDDER WAS AWARE OF ITS $33,998 MATHEMATICAL ERROR WHEN IT WITHDREW ITS CLAIM OF ERROR.

ALGERNON-BLAIR ADVANCES THE VIEW THAT THE ONLY PERMISSIBLE RESOLUTION OF THIS MATTER IS TO PERMIT THE LOW BIDDER TO WITHDRAW ITS BID. ALSO, ANCILLARLY TO THIS VIEW, ALGERNON-BLAIR SUGGESTS THAT OUR OFFICE MUST REVIEW THE WORKPAPERS TO DETERMINE WHETHER ADDITIONAL ERRORS HAVE BEEN MADE WHICH, IF CONSIDERED, WOULD DISPLACE PEARCE, DEMOSS & KING AS LOW BIDDER.

THE ERROR THAT IS ALLEGED HERE AS TO THE SUBCONTRACTOR'S QUOTE IS A JUDGMENTAL ERROR THAT ORIDINARILY MAY NOT BE CORRECTED OR SERVE AS THE BASIS FOR WITHDRAWAL OF THE BID. IT CANNOT BE ARGUED THAT THE BID, WHEN SUBMITTED, WAS NOT THE BID INTENDED AND IT WAS NOT UNTIL LATER THAT THE SUBCONTRACTOR CLAIMED IT HAD MADE AN ERROR IN ITS QUOTE.

AS TO OUR FURTHER REVIEW OF THE WORKPAPERS, WHEN THE BIDDER HAS NOT ALLEGED OTHER ERROR, WE SEE NO VALID REASON TO CONDUCT A COMPLETE REVIEW OF HIS VOLUMINOUS WORKPAPERS TO ASCERTAIN WHETHER WE CAN FIND OTHER DISCREPANCIES WHICH MIGHT INDICATE THE POSSIBILITY OF ERROR. SUCH DISCREPANCIES, EVEN IF FOUND, WOULD NOT ESTABLISH THAT ERRORS HAD BEEN MADE IF THE BIDDER CONTENDED OTHERWISE.

ACCORDINGLY, WE CONCLUDE THAT THE LOW BID OF PEARCE, DEMOSS & KING AS SUBMITTED AND AS CLARIFIED BY THE WAIVER LETTER OF JUNE 2, 1971, MAY BE ACCEPTED FOR AWARD UNDER THE INVITATION. YOUR PROTEST IS THEREFORE DENIED.