B-187042, SEPTEMBER 29, 1976

B-187042: Sep 29, 1976

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GAO IS NOT PERSUADED BY ARGUMENT THAT AFTER OPENING OF BIDS AN UNETHICAL BIDDER MIGHT IMPROPERLY ALTER ITS WORKSHEETS TO SUPPORT CORRECTION IN BID PRICE. FOR CLEAR AND CONVINCING EVIDENCE OF MISTAKE AND INTENDED BID PRICE IS REQUIRED BEFORE CORRECTION IS AUTHORIZED. WHEN BIDS WERE OPENED JUNE 15. TRANSCO'S TOTAL BID FOR THE FIVE ITEMS INCLUDED IN THE IFB WAS LOW AT $196. HOYER'S BID WAS SECOND LOW AT $240. THE GOVERNMENT ESTIMATE WAS $221. WAS $22. THE CORRECTION OF MISTAKES IN BIDS IN SITUATIONS LIKE TRANSCO'S IS GOVERNED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3(A)(3). THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF.

B-187042, SEPTEMBER 29, 1976

1. WHERE UPON INSPECTION OF WORKSHEETS, AIR FORCE DETERMINES THAT BIDDER'S FAILURE TO INCLUDE COST OF PAINT AS LISTED ON FIRST PAGE OF WORKSHEETS, WHEN COMPUTING TOTAL BID PRICE, RESULTED IN MISTAKE IN BID PRICE, AND THAT CORRECTION OF MISTAKE SHOULD BE PERMITTED, DETERMINATION HAS REASONABLE BASIS AND CORRECTION MAY BE ALLOWED PURSUANT TO ASPR 2-406.3(A)(3). 2. IN PROTEST AGAINST CORRECTION OF SUCCESSFUL BIDDER'S MISTAKE IN BID, GAO IS NOT PERSUADED BY ARGUMENT THAT AFTER OPENING OF BIDS AN UNETHICAL BIDDER MIGHT IMPROPERLY ALTER ITS WORKSHEETS TO SUPPORT CORRECTION IN BID PRICE, FOR CLEAR AND CONVINCING EVIDENCE OF MISTAKE AND INTENDED BID PRICE IS REQUIRED BEFORE CORRECTION IS AUTHORIZED. MOREOVER, 18 U.S.C. 1001 (1970) PROVIDES CRIMINAL PENALTIES FOR FALSIFICATION OF RECORDS.

HOYER CONSTRUCTION CO., INC.:

HOYER CONSTRUCTION COMPANY, INC. (HOYER) PROTESTS THE POST BID OPENING, PRE-AWARD DECISION OF THE AIR FORCE TO PERMIT TRANSCO CONTRACTING COMPANY (TRANSCO) TO AMEND ITS BID ON AIR FORCE INVITATION FOR BIDS (IFB) NO. F34650-76-09101, FOR THE REPAIR OF THE MEDICAL FACILITY AT TINKER AIR FORCE BASE, OKLAHOMA. INITIALLY, WE NOTE THAT REFUSAL TO PERMIT AMENDMENT OF TRANSCO'S BID PRICE COULD RESULT IN WITHDRAWAL OF TRANSCO'S BID AND CONSEQUENT AWARD TO HOYER.

WHEN BIDS WERE OPENED JUNE 15, 1976, TRANSCO'S TOTAL BID FOR THE FIVE ITEMS INCLUDED IN THE IFB WAS LOW AT $196,430. HOYER'S BID WAS SECOND LOW AT $240,543, AND THE OTHER BIDS RECEIVED RANGED FROM $257,215 TO $318,730. THE GOVERNMENT ESTIMATE WAS $221,660. APPARENTLY DUE TO THE DISPARITY IN BIDS, THE CONTRACTING OFFICER REQUESTED VERIFICATION OF TRANSCO'S BID. IN RESPONSE TO THAT INQUIRTY, TRANSCO ALLEGED THAT IT HAD MISTAKENLY FAILED TO INCLUDE THE COST OF PAINTING WALLS ($22,500) IN THE COMPUTATION OF BID ITEM 1, AND ASKED THAT ITS BID FOR ITEM 1, AND CONSEQUENTLY ITS TOTAL BID, BE INCREASED IN THAT AMOUNT FOR A TOTAL OF $218,930. TO SUPPORT ITS REQUEST FOR CORRECTION OF ITS MISTAKE IN BID, TRANSCO SUBMITTED TO THE AIR FORCE WHAT IT VERIFIED AS THE WORKSHEETS USED TO PREPARE ITS BID. UPON INSPECTION OF THE WORKSHEETS, THE AIR FORCE CONCLUDED, AS TRANSCO HAD EXPLAINED IN ITS SUBMISSION TO THE AIR FORCE, THAT TRANSCO HAD NEGLECTED TO INCLUDE THE COST OF PAINT, LISTED ON PAGE 1 OF THE WORKSHEETS AS $22,500, WHEN ADDING UP THE TOTAL COST OF THE WORK FOR ITEM 1. AS A RESULT, THE SUBTOTAL FOR ITEM 1, AND TRANSCO'S TOTAL BID PRICE, WAS $22,500 LOWER THAN TRANSCO HAD INTENDED.

THE CORRECTION OF MISTAKES IN BIDS IN SITUATIONS LIKE TRANSCO'S IS GOVERNED BY ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.3(A)(3), WHICH IN PERTINENT PART STATES THAT:

"WHEN 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, A DETERMINATION PERMITTING THE BIDDER TO CORRECT THE MISTAKE MAY BE MADE; PROVIDED THAT, IN THE EVENT SUCH CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER BIDS, THE DETERMINATION SHALL NOT BE MADE UNLESS THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED ARE ASCERTAINABLE SUBSTANTIALLY FROM THE INVITATION AND THE BID ITSELF. IF THE EVIDENCE IS CLEAR AND CONVINCING ONLY AS TO THE MISTAKE, BUT NOT AS TO THE INTENDED BID, A DETERMINATION PERMITTING THE BIDDER TO WITHDRAW HIS BID MAY BE MADE."

THE AIR FORCE HAS CONCLUDED IN THIS INSTANCE THAT AMENDMENT OF TRANSCO'S BID PRICE SHOULD BE PERMITTED, AND THAT HOYER'S PROTEST SHOULD BE DENIED.

IN REGARD TO ALLEGED ERRORS IN BID, OUR OFFICE HAS HELD THAT TO PERMIT CORRECTION PRIOR TO AWARD, A BIDDER MUST SUBMIT CLEAR AND CONVINCING EVIDENCE THAT AN ERROR HAS BEEN MADE, THE MANNER IN WHICH THE ERROR OCCURRED, AND THE INTENDED BID PRICE. ACE-FEDERAL REPORTERS, INC., 54 COMP.GEN. 340, 344 (1974), 74-2 CPD 239, AND CASES CITED THEREIN. PROCURING AGENCIES ARE AUTHORIZED TO CORRECT MISTAKES ALLEGED AFTER BID OPENING BUT PRIOR TO AWARD. SEE GENERALLY ASPR 2 406.3(A)(3), SUPRA; ID., 2-406.3(D)(E). ALTHOUGH THE GENERAL ACCOUNTING OFFICE (GAO) RETAINS THE RIGHT TO REVIEW ADMINISTRATIVE DETERMINATIONS, GAO WILL NOT QUESTION A FACTUAL DETERMINATION AS TO THE WEIGHT OF THE EVIDENCE PERMITTING CORRECTION UNLESS THERE IS NO REASONABLE BASIS FOR SUCH DETERMINATION. DETERMINATION. ACE-FEDERAL REPORTERS, INC., SUPRA. UPON INSPECTION OF TRANSCO'S WORKPAPERS, WE BELIEVE THE AIR FORCE'S DETERMINATION TO PERMIT MODIFICATION OF TRANSCO'S BID PRICE HAS A REASONABLE BASIS, AND THEREFORE WE CANNOT OBJECT TO THE INCREASE IN TRANSCO'S AWARD PRICE.

HOYER ALSO EXPRESSES CONCERN THAT IF POST-BID OPENING CORRECTION OF MISTAKES LIKE TRANSCO'S IS PERMITTED, AN UNETHICAL LOW BIDDER COULD ALTER ITS WORKSHEETS AFTER BID OPENING (I.E., AFTER LEARNING ITS COMPETITORS' PRICES), DECLARE A MISTAKE IN ITS BID, AND SECURE AN INCREASED AWARD IN ANY AMOUNT UP TO THE NEXT LOW BID. HOWEVER, WE ARE NOT PERSUADED REGARDING THE VALIDITY OF THE PROTESTER'S CRITICISM BECAUSE OF THE SAFEGUARD IN THE REGULATORY REQUIREMENT THAT CORRECTION BE LIMITED ONLY TO THOSE CASES WHERE THE EVIDENCE OF THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED BE CLEAR AND CONVINCING. MOREOVER, THE FALSIFICATION OF RECORDS IS A CRIMINAL OFFENSE AND WOULD BE SUBJECT TO THE PENALTY PRESCRIBED IN 18 U.S.C. 1001 (1970).

FOR THE REASONS STATED ABOVE, HOYER'S PROTEST IS DENIED.