B-183143, APR 17, 1975

B-183143: Apr 17, 1975

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CORRECTION OF ALLEGED MISTAKE IN LOW BID UNDER FPR SEC. 1-2.406 3(A)(1) WAS PROPER WHERE EVIDENCE CLEARLY AND CONVINCINGLY ESTABLISHED EXISTENCE OF MISTAKE AND BID ACTUALLY INTENDED. CORRECTION AT ADMINISTRATIVE LEVEL ABSENT ADVANCE DECISION BY THIS OFFICE WAS CLEARLY JUSTIFIED. SEVEN BIDS WERE RECEIVED AS FOLLOWS: TRI-STATE MAINTENANCE. 675.00 PER MONTH BECAUSE THE BID FROM TRI-STATE WAS SUBSTANTIALLY LOWER THAN THE SECOND LOW BID OF $18. THE LOW BIDDER WAS CONTACTED AND ASKED TO VERIFY ITS BID. TRI-STATE RESPONDED ALLEGING THAT IT HAD MADE A MISTAKE AND THAT ITS INTENDED BID PRICE WAS $16. IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO THE EXISTENCE OF A MISTAKE AND AS TO THE BID ACTUALLY INTENDED.

B-183143, APR 17, 1975

CORRECTION OF ALLEGED MISTAKE IN LOW BID UNDER FPR SEC. 1-2.406 3(A)(1) WAS PROPER WHERE EVIDENCE CLEARLY AND CONVINCINGLY ESTABLISHED EXISTENCE OF MISTAKE AND BID ACTUALLY INTENDED, AND BID REMAINED LOW AFTER CORRECTION. MOREOVER, CORRECTION AT ADMINISTRATIVE LEVEL ABSENT ADVANCE DECISION BY THIS OFFICE WAS CLEARLY JUSTIFIED.

SURF CLEANERS, INC.:

SURF CLEANERS, INC. (SURF) PROTESTS THE CORRECTION OF THE LOW BID OF TRI- STATE MAINTENANCE, INC. (TRI-STATE) UNDER SOLICITATION NO. 116-E ARS-75 ISSUED BY THE DEPARTMENT OF AGRICULTURE FOR JANITORIAL CLEANING SERVICES AT THE AGRICULTURAL RESEARCH CENTER, BELTSVILLE, MARYLAND.

SEVEN BIDS WERE RECEIVED AS FOLLOWS:

TRI-STATE MAINTENANCE, INC. $14,234.00 PER MONTH

MAINTENANCE FREE, INC. 18,242.00 PER MONTH

SHIP SHAPE MAINTENANCE CO., INC. 19,133.85 PER MONTH

EASTERN SERVICE MANAGEMENT COMPANY 19,486.97 PER MONTH

SURF CLEANERS, INC. 19,537.50 PER MONTH

UNIFIED SERVICES, INC. 21,423.14 PER MONTH

ENSEC SERVICE CORPORATION 22,675.00 PER MONTH

BECAUSE THE BID FROM TRI-STATE WAS SUBSTANTIALLY LOWER THAN THE SECOND LOW BID OF $18,242.00 AND THE GOVERNMENT ESTIMATE OF $19,000.00, THE LOW BIDDER WAS CONTACTED AND ASKED TO VERIFY ITS BID. TRI-STATE RESPONDED ALLEGING THAT IT HAD MADE A MISTAKE AND THAT ITS INTENDED BID PRICE WAS $16,474.10 PER MONTH.

SECTION 1-2.406-3(A)(1) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) (1974 ED.) PROVIDES:

"A DETERMINATION MAY BE MADE PERMITTING THE BIDDER TO WITHDRAW HIS BID WHERE THE BIDDER REQUESTS PERMISSION TO DO SO AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES THE EXISTENCE OF A MISTAKE. HOWEVER, IF THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO THE EXISTENCE OF A MISTAKE AND AS TO THE BID ACTUALLY INTENDED, AND IF THE BID, BOTH AS UNCORRECTED AND CORRECTED, IS THE LOWEST RECEIVED, A DETERMINATION MAY BE MADE TO CORRECT THE BID AND NOT PERMIT ITS WITHDRAWAL."

RATHER THAN PERMITTING TRI-STATE TO WITHDRAW ITS BID FROM CONSIDERATION ON ACCOUNT OF AN ERROR IN ADDITION, IT WAS ADMINISTRATIVELY DETERMINED TO PERMIT TRI-STATE TO CORRECT ITS BID. THE DEPARTMENT OF AGRICULTURE REASONED THAT:

"IN THIS CASE THE BIDDER HAS ALLEGED THAT HIS ACTUALLY INTENDED BID WAS $16,474.10. THEREFORE, THE BID WOULD REMAIN THE LOWEST RECEIVED IF CORRECTION WERE MADE.

"THE BIDDER HAS SUBMITTED TWO WORKSHEETS, ONE OF WHICH APPEARS TO BE THE ORIGINAL WORKSHEET USED TO COMPUTE THE BID PRICE OF $14,234.00. A REVIEW OF THE WORKSHEET DISCLOSES THAT AN ERROR IN ADDITION WAS MADE IN CALCULATING THE TOTAL LABOR COSTS. THE FIGURE OF $10,556.00 SHOWN ON THE WORKSHEET SHOULD HAVE BEEN $12,080.00. THE ERROR WAS CARRIED THROUGH THE REMAINING COMPUTATIONS, RESULTING IN A BID PRICE OF $14,234.00 WHICH IS $2,240.10 LESS THAN THE CALCULATION SHOULD HAVE TOTALED IF THE ERROR IN ADDITION HAD NOT BEEN MADE.

"THE SECOND WORKSHEET, WHICH WAS SUBMITTED BY THE BIDDER, WAS APPARENTLY PREPARED AFTER OPENING TO SHOW WHAT THE BID PRICE SHOULD HAVE BEEN HAD THE ERROR IN ADDITION NOT BEEN MADE.

"AS NOTED ABOVE 41 C.F.R. 1-2.406-3(A)(1) PROVIDES THAT WHEN PERMISSION IS REQUESTED TO WITHDRAW A BID, SUCH MAY BE DENIED AND CORRECTION MADE IF THERE IS CLEAR AND CONVINCING EVIDENCE AS TO BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED, AND IF THE BID, BOTH AS UNCORRECTED AND CORRECTED, IS THE LOWEST RECEIVED.

"THE APPARENT ORIGINAL WORKSHEET SUBMITTED BY THE BIDDER CLEARLY DISCLOSES THAT A MISTAKE WAS MADE IN THE BID AS THE RESULT OF AN ERROR IN ADDITION. FURTHER, THE AMOUNT OF THE ACTUALLY INTENDED BID CAN CLEARLY BE OBTAINED BY SIMPLY CORRECTING THE ERROR IN ADDITION.

"THE WORKSHEET FULLY SUPPORTS THE BIDDER'S ALLEGATION THAT A MISTAKE WAS MADE AND THAT THE ACTUALLY INTENDED BID WAS $16,474.10.

"THE WORKSHEET CANNOT BE REJECTED AS EVIDENCE SIMPLY ON THE BASIS THAT IT COULD HAVE BEEN PREPARED SUBSEQUENT TO BID OPENING TO SUPPORT A REQUEST FOR WITHDRAWAL. THERE IS NO INDICATION THAT SUCH WAS THE CASE. ***"

ACCORDINGLY, TRI-STATE'S CORRECTED BID WAS SUBSEQUENTLY ACCEPTED.

SURF BELIEVES THAT CORRECTION SHOULD NOT HAVE BEEN PERMITTED, AND BECAUSE OF THE MAGNITUDE OF THE PRICE INCREASE ALLOWED TRI-STATE, THIS WAS A "DOUBTFUL CASE" AND SHOULD HAVE BEEN SUBMITTED TO THE COMPTROLLER GENERAL FOR AN ADVANCE DECISION PURSUANT TO FPR SEC. 1-2.406-3(E) (1974 ED.), WHICH PROVIDES:

"(E) NOTHING CONTAINED IN THIS SEC. 1-2.406-3 SHALL DEPRIVE THE COMPTROLLER GENERAL OF HIS STATUTORY RIGHT TO QUESTION THE CORRECTNESS OF ANY ADMINISTRATIVE DETERMINATION MADE HEREUNDER NOR DEPRIVE ANY BIDDER OF HIS RIGHT TO HAVE THE MATTER DETERMINED BY THE COMPTROLLER GENERAL SHOULD HE SO REQUEST. ALL DOUBTFUL CASES SHALL BE SUBMITTED TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION IN ACCORDANCE WITH AGENCY PROCEDURES."

IN 38 COMP. GEN. 177 (1968) WE HELD THAT IN THE INTEREST OF EFFICIENT PROCUREMENT ADMINISTRATION, FOUR CATEGORIES OF CASES INVOLVING MISTAKES IN BIDS ALLEGED PRIOR TO AWARD COULD BE HANDLED AT THE AGENCY LEVEL WITHOUT SUBMISSION TO THE COMPTROLLER GENERAL FOR ADVANCE DECISION, SUBJECT TO UNIFORM PROCEDURES AND CENTRALIZED DETERMINATION CONTROLS PRESCRIBED BY THE ADMINISTRATOR OF GENERAL SERVICES. THE FOUR CATEGORIES OF CASES ARE AS FOLLOWS:

"1. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE IN BID, REQUESTS THAT THE BID BE DISREGARDED, AND OFFERS CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE.

"2. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE IN THE BID, REQUESTS THAT THE BID BE DISREGARDED OR CORRECTED, BUT DOES NOT OFFER CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE.

"3. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE IN BID, REQUESTS CORRECTION OF THE BID, AND OFFERS CLEAR AND CONVINCING EVIDENCE BOTH OF THE MISTAKE AND OF THE ACTUALLY INTENDED BID PRICE.

"4. A BIDDER PRIOR TO AWARD ALLEGES A MISTAKE, REQUESTS CORRECTION OF THE BID AND OFFERS CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE, BUT FAILS TO OFFER CLEAR AND CONVINCING EVIDENCE OF THE ACTUALLY INTENDED BID PRICE."

WE FURTHER STATED IN THE CITED CASE THAT:

"*** ADMINISTRATIVE ACTION IS TO BE TAKEN ONLY IN THOSE CASES WHERE ACTION IS DEEMED TO BE CLEARLY JUSTIFIED; THAT THE PROCEDURE IS NOT TO DEPRIVE A BIDDER OF HIS RIGHT TO HAVE THE MATTER DETERMINED BY THIS OFFICE SHOULD HE SO REQUEST; AND THAT THIS OFFICE RESERVES THE RIGHT TO QUESTION THE CORRECTNESS OF THE DETERMINATION IN ITS AUDIT ACTIVITIES."

OUR REVIEW OF THE INFORMATION FURNISHED THE CONTRACTING OFFICER ESTABLISHES THAT SINCE TRI-STATE OFFERED CLEAR AND CONVINCING EVIDENCE OF THE MISTAKE AND REQUESTED THAT THE BID BE DISREGARDED, THE ALLEGED MISTAKE WAS FOR CONSIDERATION AT THE ADMINISTRATIVE LEVEL AND DID NOT REQUIRE AN ADVANCE DECISION BY THIS OFFICE. FURTHERMORE, SINCE THE WEIGHT TO BE GIVEN EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE EVALUATOR OF THE EVIDENCE (SEE 41 COMP. GEN. 160, 163 (1961)), WE PERCEIVE NO LEGAL BASIS FOR CONCLUDING THAT THE EVIDENCE WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT CORRECTION OF TRI-STATE'S BID PURSUANT TO FPR 1-2.406 3(A)(1). IN THIS CONNECTION, WE NOTE THAT EXAMINATION OF TRI-STATE'S WORKSHEETS INDICATES THAT THE ERROR RESULTED FROM TRI-STATE'S INCLUSION OF ONLY ONE OF THE TWO $1,524 ITEMS IN ITS CALCULATION OF THE TOTAL LABOR COSTS. ACCORDINGLY, THIS CASE DID NOT QUALIFY AS A "DOUBTFUL CASE."

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.