B-180171, JUN 4, 1974

B-180171: Jun 4, 1974

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WHERE PROTESTER INCORRECTLY BELIEVED THAT COSTS FOR ELECTRICAL OUTLETS WERE TO BE INCLUDED IN PRICE OF BASE ITEM RATHER THAN ADDITIVE ITEM. REQUIREMENTS OF ASPR 2-406.3(A)(3) THAT MISTAKE AND INTENDED PRICE BE SUBSTANTIALLY ASCERTAINABLE FROM INVITATION AND BID SUBMITTED ARE NOT MET. WAS LOW BIDDER ON THE BASE ITEM OF WORK. WAS LOW BIDDER ON THE TOTAL (BASE PLUS ADDITIVE) AMOUNT OF WORK. THE DECISION WAS MADE TO MAKE AWARD. B. LEE ON THE BASE ITEM INASMUCH AS THE FUNDS ACTUALLY AVAILABLE FOR THE PROCUREMENT WERE INSUFFICIENT TO COVER BOTH THE BASE AND THE ADDITIVE ITEMS. B. LEE WAS LOW BIDDER ON THE BASE ITEM. AWARD WAS MADE TO IT THAT DAY. WE MUST AGREE WITH THE CONTRACTING ACTIVITY THAT IT WAS REASONABLE TO INCLUDE THE CONCRETE PAD ELECTRICAL OUTLETS AND WIRING THERETO UNDER THE ADDITIVE ITEM OF WORK.

B-180171, JUN 4, 1974

WHERE PROTESTER INCORRECTLY BELIEVED THAT COSTS FOR ELECTRICAL OUTLETS WERE TO BE INCLUDED IN PRICE OF BASE ITEM RATHER THAN ADDITIVE ITEM, ITS REQUEST TO TRANSFER THOSE COSTS TO PRICE OF ADDITIVE ITEM, AWARD BEING MADE ON BASE ITEM ONLY DUE TO LACK OF SUFFICIENT FUNDS, WOULD NOT BE PROPER AS SUCH ACTION WOULD DISPLACE LOW BIDDER ON BASE ITEM, AND REQUIREMENTS OF ASPR 2-406.3(A)(3) THAT MISTAKE AND INTENDED PRICE BE SUBSTANTIALLY ASCERTAINABLE FROM INVITATION AND BID SUBMITTED ARE NOT MET.

TO TADCO CONSTRUCTION CO., INC.:

INVITATION FOR BIDS NO. DACA21-74-B-0077, ISSUED FOR THE CONSTRUCTION OF UNITED STATES ARMY RESERVE TRAINING FACILITIES AT THE KINGS BAY MILITARY OCEAN TERMINAL IN GEORGIA, REQUESTED BIDS TO BE SUBMITTED ON A BASE ITEM, WHICH CONSISTED OF SEVEN CATEGORIES OF WORK, AND ONE ADDITIVE ITEM OF WORK. A. B. LEE MECHANICAL, INC. (A. B. LEE), WAS LOW BIDDER ON THE BASE ITEM OF WORK. TADCO CONSTRUCTION COMPANY, INC. (TADCO), WAS LOW BIDDER ON THE TOTAL (BASE PLUS ADDITIVE) AMOUNT OF WORK. NOTWITHSTANDING THIS LATTER FACT, THE DECISION WAS MADE TO MAKE AWARD, IN ACCORDANCE WITH INVITATION PROVISIONS, TO A. B. LEE ON THE BASE ITEM INASMUCH AS THE FUNDS ACTUALLY AVAILABLE FOR THE PROCUREMENT WERE INSUFFICIENT TO COVER BOTH THE BASE AND THE ADDITIVE ITEMS.

BY LETTER OF NOVEMBER 16, 1973, TADCO NOTIFIED THE CONTRACTING ACTIVITY THAT IN COMPARING ITS OFFERED PRICE OF $74,300 ON THE ADDITIVE ITEM WITH THE A. B. LEE OFFER OF $127,000, IT APPEARED THAT A. B. LEE INCLUDED CONSIDERABLY MORE IN ITS PRICE THAN JUST THE COST OF THE CONCRETE PADS COVERED BY THE ADDITIVE ITEM OF WORK. TADCO, THEREFORE, REQUESTED THAT A. B. LEE BE ASKED IF ITS ADDITIVE ITEM PRICE INCLUDED THE ELECTRICAL OUTLETS TO EACH TENT PAD AND IF SO, THAT EITHER THAT AMOUNT BE TRANSFERRED TO THE A. B. LEE BASE ITEM OFFER OR THE $15,990.85 ALLOTTED BY TADCO FOR THE OUTLETS IN ITS BASE ITEM OFFER BE TRANSFERRED TO ITS ADDITIVE ITEM OFFER. THE CONTRACTING ACTIVITY NOTIFIED TADCO BY LETTER OF NOVEMBER 28, 1973, THAT IT HAD REVIEWED THE A. B. LEE AND TADCO BIDS TOGETHER WITH THE PLANS AND SPECIFICATIONS CONTROLLING THE WORK, THAT IT HAD FOUND NO MISTAKES IN EITHER BASE BID, AND THAT INASMUCH AS A. B. LEE WAS LOW BIDDER ON THE BASE ITEM, AWARD WAS MADE TO IT THAT DAY. TADCO PROTESTS THE AWARD HERE FOR THE SAME REASONS SET FORTH IN ITS NOVEMBER 16 LETTER.

FIRST, IT SHOULD BE NOTED THAT THE ADDITIVE ITEM CALLED FOR "NINE GROUPS OF TENT PADS (16 PADS PER GROUP) - COMPLETE" AND THAT IN VIEW OF THIS DESCRIPTION AND THE DRAWINGS COVERING THIS ITEM OF WORK, WE MUST AGREE WITH THE CONTRACTING ACTIVITY THAT IT WAS REASONABLE TO INCLUDE THE CONCRETE PAD ELECTRICAL OUTLETS AND WIRING THERETO UNDER THE ADDITIVE ITEM OF WORK. CONSEQUENTLY, THE PROTEST LODGED BY TADCO IS ESSENTIALLY AN ALLEGATION OF MISTAKE IN BID AND A REQUEST FOR CORRECTION OF THAT MISTAKE.

PARAGRAPH 2-406.3(A)(3) OF THE ARMED SERVICES PROCUREMENT REGULATION PROVIDES, OTHER THAN FOR APPARENT CLERICAL MISTAKES, THAT A MISTAKE IN BID MAY BE CORRECTED ONLY WHERE CLEAR AND CONVINCING EVIDENCE EXISTS AS TO THE EXISTENCE OF A MISTAKE AND AS TO THE BID ACTUALLY INTENDED. MOREOVER, CORRECTION, EVEN WHEN THESE REQUIREMENTS ARE MET, IS CONDITIONED UPON ONE ADDITIONAL REQUIREMENT WHEN THE CORRECTION WOULD CAUSE THE CORRECTED BID TO DISPLACE A LOWER BIDDER. IN SUCH A CASE, AND CORRECTION OF TADCO'S BID WOULD DISPLACE THE LOWER BASE ITEM BID OF A. B. LEE, CORRECTION WILL BE ALLOWED ONLY IF BOTH THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. WHILE WE DO NOT BELIEVE, GIVEN THE RANGE OF PRICES OFFERED, THAT THE EXISTENCE OF A MISTAKE IS ASCERTAINABLE FROM THE INVITATION OR THE TADCO BID, IT IS BEYOND DOUBT THAT THE PRICE TADCO ALLEGES IT WOULD HAVE INTENDED IS IMPOSSIBLE TO COMPUTE, AS REQUIRED, FROM ITS BID.

ACCORDINGLY, THE REQUESTED RELIEF IS DENIED.