B-182605, JAN 2, 1975

B-182605: Jan 2, 1975

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820 TO CORRECT ALLEGATION OF ERROR IN BID WHICH FAILED TO INCLUDE IN TOTAL PRICE SEVERAL ITEMS OF WORK INCLUDED IN BID WORKSHEETS WAS PROPER. SINCE WHERE THERE IS CLEAR AND CONVINCING EVIDENCE ESTABLISHING EXISTENCE OF ERROR AND BID ACTUALLY INTENDED AND CORRECTION WOULD NOT RESULT IN DISPLACEMENT OF OTHER BIDS. CORRECTION IS PERMISSIBLE UNDER FPR SEC. 1-2.406-3. INVITATION NO. 691-77-75 WAS ISSUED BY THE VETERANS ADMINISTRATION (VA). BID OPENING WAS ON SEPTEMBER 27. EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION. BID PRICE WAS $153. SINCE THE GOVERNMENT'S ESTIMATE WAS $232. IF THE PERCENTAGES USED IN THE WORKSHEETS TO ARRIVE AT AMOUNTS FOR THESE CATEGORIES WERE APPLIED TO AND ADDED ONTO THE AMOUNT CLAIMED FOR THE ERROR THE KAUFMAN BID WOULD REMAIN LOW.

B-182605, JAN 2, 1975

ADDITION OF $20,820 TO CORRECT ALLEGATION OF ERROR IN BID WHICH FAILED TO INCLUDE IN TOTAL PRICE SEVERAL ITEMS OF WORK INCLUDED IN BID WORKSHEETS WAS PROPER, SINCE WHERE THERE IS CLEAR AND CONVINCING EVIDENCE ESTABLISHING EXISTENCE OF ERROR AND BID ACTUALLY INTENDED AND CORRECTION WOULD NOT RESULT IN DISPLACEMENT OF OTHER BIDS, CORRECTION IS PERMISSIBLE UNDER FPR SEC. 1-2.406-3.

ON SEPTEMBER 6, 1974, INVITATION NO. 691-77-75 WAS ISSUED BY THE VETERANS ADMINISTRATION (VA). THE SOLICITATION REQUESTED BIDS FOR THE SEISMIC CORRECTION OF BUILDING 113, VETERANS ADMINISTRATION WADSWORTH HOSPITAL CENTER, LOS ANGELES, CALIFORNIA.

BID OPENING WAS ON SEPTEMBER 27, 1974. EIGHT BIDS WERE RECEIVED IN RESPONSE TO THE SOLICITATION. THE H.A. KAUFMAN CO. (KAUFMAN), BID PRICE WAS $153,480. SINCE THE GOVERNMENT'S ESTIMATE WAS $232,468 AND THE SIX REMAINING RESPONSIVE BIDS RANGED IN PRICE FROM $184,800 TO $308,000, THE CONTRACTING OFFICER REQUESTED KAUFMAN TO VERIFY ITS BID. BY LETTERS OF SEPTEMBER 30 AND OCTOBER 7, 1974, WITH ATTACHMENTS, KAUFMAN ALLEGED ERRORS ON ITEMS 7, 13 AND 25 OF ITS WORKSHEET. KAUFMAN STATED THAT IT "*** WOULD MAKE NO DEMANDS FOR OVERHEAD, PROFIT OR BOND INCREASES ON THE AMOUNT OF THE ERROR." IF THE PERCENTAGES USED IN THE WORKSHEETS TO ARRIVE AT AMOUNTS FOR THESE CATEGORIES WERE APPLIED TO AND ADDED ONTO THE AMOUNT CLAIMED FOR THE ERROR THE KAUFMAN BID WOULD REMAIN LOW.

THE ALLEGED ERRORS OCCURRED WHEN THE PRICES FOR ITEMS 7, 13 AND 25 IN THE WORKSHEET WERE NOT CARRIED FORWARD TO OR WERE INCORRECTLY EXTENDED IN THE LAST COLUMN ON THE WORKSHEET WHICH WAS ADDED TO OBTAIN THE TOTAL BID PRICE. THE OMISSIONS AND INCORRECT EXTENSIONS TOTALED $20,820.

THE MATTER WAS SUBMITTED FOR AN ADMINISTRATIVE DETERMINATION AS TO WHETHER KAUFMAN SHOULD BE ALLOWED TO CORRECT ITS BID PURSUANT TO FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1-2.406-3 (1964 ED. CIRC. 1). ADMINISTRATIVE DETERMINATION NO. 75-18, DATED OCTOBER 25, 1974, AUTHORIZED CORRECTION OF KAUFMAN'S BID TO $174,300. THIS DECISION WAS CONCURRED IN BY VA'S GENERAL COUNSEL IN ACCORDANCE WITH THE ABOVE PROVISIONS OF FPR.

BY LETTER OF NOVEMBER 1, 1974, THE SECOND LOW BIDDER, ARMOR CONSTRUCTION COMPANY (ARMOR), PROTESTED AGAINST AWARD TO KAUFMAN ON THE BASIS THAT KAUFMAN HAD RAISED ITS BID BY $20,000 SUBSEQUENT TO BID OPENING. ARMOR IS OF THE VIEW THAT THIS IS IN VIOLATION OF BID INSTRUCTIONS AND IS CONTRARY TO BIDDING PROCEDURES.

FPR SEC. 1-2.406-3(A)(2) (1964 ED. CIRC. 1) PROVIDES THAT WHERE, AS IN THIS CASE, THERE IS CLEAR AND CONVINCING EVIDENCE ESTABLISHING THE EXISTENCE OF AN ERROR IN BID AND THE BID ACTUALLY INTENDED, CORRECTION OF THE BID IS AUTHORIZED, PROVIDED SUCH CORRECTION WILL NOT RESULT IN DISPLACING ONE OR MORE LOWER ACCEPTABLE BIDS. SUCH PROCEDURE HAS BEEN SANCTIONED BY OUR OFFICE AND THE COURT OF CLAIMS. 41 COMP. GEN. 160 (1961); B-176096, OCTOBER 12, 1972; AND CHRIS BERG, INC. V. UNITED STATES, 192 CT. CL. 176 (1970). THE KAUFMAN BID WAS PROPERLY CORRECTED IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE.

ACCORDINGLY, THE PROTEST BY ARMOR IS DENIED.