B-173592, NOV 2, 1971

B-173592, NOV 2, 1971

BID PROTEST - MISTAKE IN BID - BID GUARANTEE DENIAL OF PROTEST BY SECOND LOW BIDDER AGAINST AWARD OF A CONTRACT TO CROOKS BROTHERS CONSTRUCTION COMPANY, LOW BIDDER UNDER AN INVITATION ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN BRUNO, CAL. FOR PAVEMENT REPAIR AT THE NAVAL AUXILIARY AIR STATION, FALLON, NEV. DUE TO A MISTAKE IN BID THE LOW BIDDER WAS ALLOWED TO MODIFY ITS TOTAL PRICE IN ACCORDANCE WITH ASPR 2-406.3(A)(3). WHILE THE NEW PRICE WAS IN EXCESS OF CROOK'S BID GUARANTEE, ASPR 10-102.5(V) PROVIDES THAT WHERE AN OTHERWISE ADEQUATE BID GUARANTEE BECOMES INADEQUATE AS A RESULT OF THE CORRECTION OF A MISTAKE IN BID, THE BID MAY BE ACCEPTED IF THE BIDDER WILL INCREASE THE AMOUNT OF THE BID GUARANTEE IN PROPORTION TO THE AUTHORIZED BID CORRECTION. THEREFORE THE PROTEST IS DENIED.

TO TEICHERT CONSTRUCTION CORPORATION:

REFERENCE IS MADE TO YOUR PROTEST AGAINST AWARD OF CONSTRUCTION CONTRACT NO. N62474-71-C-4501, TO THE CROOKS BROS. CONSTRUCTION COMPANY, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN BRUNO, CALIFORNIA.

THE INVITATION, ISSUED MAY 24, 1971, REQUIRED SPECIFIED PAVEMENT REPAIR AT THE NAVAL AUXILIARY AIR STATION, FALLON, NEVADA. THE INVITATION, AS AMENDED, REQUIRED A BID FOR ITEM 1 BASED ON ALL WORK, EXCLUSIVE OF THE WORK COVERED BY BID ITEM 1A. VARIOUS QUANTITIES OF WORK NOT INDICATED IN THE SPECIFICATIONS OR DRAWINGS WERE SET OUT UNDER ITEM 1 TO BE CONSIDERED IN ARRIVING AT A TOTAL BID FOR ITEM 1. BID ITEM 1A WAS AN ADDITIVE ITEM, REQUIRING A BID BASED ON REPAIR AND OVERHAUL WORK TO A SPECIFIED RUNWAY AND REPLACEMENT OF ELECTRIC WIRING. QUANTITIES OF WORK WERE ALSO PROVIDED UNDER ITEM 1A FOR USE IN SUBMITTING A TOTAL BID. SECTION 1D ENTITLED "BIDS" CALLED FOR THE BID TO INCLUDE A PRICE FOR ITEM 1, A PRICE FOR ITEM 1A, AND SEPARATE UNIT PRICES FOR VARIOUS KINDS OF WORK IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS. PARAGRAPH 1C.4 STATED THAT THESE UNIT PRICES

" ... WHICH ARE USED TO DETERMINE THE BIDS FOR BID ITEMS 1 AND 1A ... WILL BE USED AS A BASIS OF PAYMENT FOR THOSE ITEMS OF WORK IF QUANTITIES OF WORK ACTUALLY PERFORMED DEVIATE FROM THE ESTIMATED QUANTITIES SHOWN."

THE FOLLOWING BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION:

BID ITEM 1 BID ITEM 1A

CROOKS BROS. $924,852 $812,725

TEICHERT CONSTRUCTION 1,547,576 890,106

GOVERNMENT ESTIMATE1,257,000 802,000

BY LETTER DATED JUNE 24, 1971, THE CONTRACTING OFFICER ASKED CROOKS BROS. TO VERIFY ITS BID, INASMUCH AS THERE WAS A DIFFERENCE OF MORE THAN $300,000 BETWEEN ITS COMBINATION OF ITEMS 1 AND 1A AND THE GOVERNMENT ESTIMATE AND APPROXIMATELY $700,000 BETWEEN ITS BID AND YOUR BID. RESPONSE, BY LETTER DATED JUNE 25, 1971, CROOKS STATED IN PART:

" *** OUR FIRM SUBMITTED A PROPOSAL BASED ON A LUMP SUM FOR ALL ITEMS OF WORK SHOWN ON THE DRAWINGS AND SPECIFICATIONS; FURTHER SUBMITTED UNIT PRICES FOR ITEMS OF WORK CALLED FOR IN THE SPECIFICATION; BUT NOT SHOWN ON THE DRAWINGS. WE ARE NOW TOLD THAT THESE UNIT PRICE ITEMS SHOULD HAVE BEEN INCLUDED IN THE LUMP SUM PRICE. WE DISAGREE TO THIS FEELING. *** "

THIS POSITION WAS BASED ON A MISREADING OF THE BIDDING REQUIREMENTS UNDER PARAGRAPH 1C.4. CROOKS THEN REQUESTED THAT HE BE PERMITTED TO CORRECT HIS TOTAL PRICE ON BID ITEM 1 AND 1A BY ADDING $186,410 FOR ITEM 1 AND $286,279 FOR ITEM 1A TO REFLECT THE WORK HE HAD INCLUDED IN HIS UNIT PRICES.

THE CONTRACTING OFFICER DECIDED, ON THE BASIS OF THE BIDS RECEIVED AND THE GOVERNMENT ESTIMATE, THAT AN ERROR IN BID PREPARATION HAD BEEN ADEQUATELY DEMONSTRATED AND, FURTHER, THAT THE INTENDED BID COULD BE DETERMINED SOLELY FROM EXAMINATION OF THE BID SUBMITTED AND THE CONTRACT DOCUMENTS, WITHOUT REFERENCE TO EXTRA-CONTRACTUAL SUPPORT PAPERS. THE DOCUMENTATION WAS FOUND TO HAVE ADEQUATELY DEMONSTRATED THAT $186,410 HAD BEEN SUBTRACTED FROM A PRICE OF $1,111,262 RESULTING IN THE BID PRICE OF $924,852 FOR ITEM 1. IT WAS ALSO DETERMINED IN CONNECTION WITH ITEM 1A THAT A CORRECTION OF $286,270, WITH AN EXCEPTION OF A MINOR ERROR IN EXTENSION, WAS ADEQUATELY DEMONSTRATED.

IT IS YOUR CONTENTION THAT TO ALLOW AN INCREASE IN THE CROOKS BROS. BID TO $2,210,257 WHEN THEIR BONDED BID WAS ONLY IN THE AMOUNT OF $1,737,577 WOULD CONSTITUTE A CHANGE IN THE "BASIS OF BID" AND THAT AS SUCH, YOU SHOULD HAVE HAD THE SAME OPPORTUNITY TO ADJUST YOUR BID PRICE.

THE GENERAL RULE IN PROCUREMENTS UNDER FORMAL ADVERTISING IS THAT BIDS MAY NOT BE MODIFIED OR WITHDRAWN AFTER BID OPENING. HOWEVER, ARMED SERVICES PROCUREMENT REGULATION (ASPR), PROVIDES FOR THE ACTIONS TAKEN HERE BY THE CONTRACTING OFFICER. SPECIFICALLY, ASPR 2 406.3(A)(3) PROVIDES THAT WHERE THE 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, THE BID MAY BE CORRECTED AND CONSIDERED FOR AWARD ON THAT BASIS.

IN ADDITION, ASPR 10-102.5(V) PROVIDES THAT WHERE AN OTHERWISE ADEQUATE BID GUARANTEE BECOMES INADEQUATE AS THE RESULT OF THE CORRECTION OF A MISTAKE IN THE BID UNDER ASPR 2-406, THE BID MAY BE ACCEPTED IF THE BIDDER WILL INCREASE THE AMOUNT OF THE BID GUARANTEE IN PROPORTION TO THE AUTHORIZED BID CORRECTION. IN THE INSTANT CASE, THE CORRECTED BID PRICE OF CROOKS STILL REMAINS LOWER THAN YOUR BID PRICE.

THEREFORE, WE FIND NO LEGAL BASIS TO QUESTION THE CONTRACTING OFFICER'S ACTIONS. ACCORDINGLY, YOUR PROTEST IS DENIED.