B-222420, JUN 2, 1986, 86-1 CPD 508

B-222420, JUN 2, 1986, 86-1 CPD 508

BIDS - MISTAKES - CORRECTION - INTENDED BID PRICE - ESTABLISHMENT REQUIRED DIGEST: PROTEST OF THE CONTRACTING AGENCY'S DECISION ALLOWING UPWARD PRICE CORRECTION OF MISTAKEN LOW BID IS SUSTAINED. WHILE THERE IS EVIDENCE OF A MISTAKE DUE TO DISPARITY IN BID PRICES, THE BIDDER SUBMITTED EVIDENCE ONLY OF THE COST OF THE WORK ALLEGEDLY OMITTED, BUT DID NOT PROVIDE WORKSHEETS SHOWING THAT THE COST OF THIS WORK WAS OMITTED FROM ITS INITIAL BID PRICE. THUS, THE RECORD DOES NOT CONTAIN CLEAR AND CONVINCING EVIDENCE OF THE INTENDED BID PRICE WHICH WOULD ESTABLISH BASIS FOR CORRECTION, UNLESS THE BIDDER CAN PROVIDE WORKSHEETS TO SUPPORT THE UPWARD CORRECTION OF ITS BID. WITHDRAWAL OF THE BID IS PERMISSIBLE HOWEVER, BASED ON THE EXISTING RECORD.

PRAUGHT CONSTRUCTION CORPORATION:

PRAUGHT CONSTRUCTION CORPORATION (PRAUGHT) PROTESTS THE AWARD OF A CONTRACT TO SCIENTIFIC COATING COMPANY, INC. (SCIENTIFIC), UNDER INVITATION FOR BIDS (IFB) NO. DAAG60-85-B-3278, ISSUED AUGUST 5, 1985, BY THE DEPARTMENT OF THE ARMY, WEST POINT MILITARY ACADEMY (ARMY). THE PROCUREMENT IS FOR ASBESTOS AND INSULATION REMOVAL AND REINSTALLATION OF INSULATION IN FAMILY HOUSING AND PUBLIC BUILDINGS AT WEST POINT. PRAUGHT CHALLENGES THE ARMY'S DECISION TO ALLOW SCIENTIFIC TO CORRECT AN APPARENT MISTAKE IN SCIENTIFIC'S BID.

WE SUSTAIN THE PROTEST.

THE IFB SCHEDULE DIVIDED THE WORK INTO EIGHT CATEGORIES. BIDDERS WERE REQUIRED TO INSERT PRICES FOR 20 LINE ITEMS. THEY ALSO WERE REQUIRED TO PROVIDE A TOTAL PRICE FOR THE WORK. THE FOLLOWING BIDS WERE RECEIVED BY THE NOVEMBER 13 BID OPENING:

JOHN'S INSULATION $570,400.00

SERMAC SERVICES 465,980.00

PRAUGHT 405,827.00

SCIENTIFIC 237,311.45

BECAUSE SCIENTIFIC'S LOW BID OF $237,311.45 WAS SIGNIFICANTLY LOWER THAN THE OTHER BIDS AND THE GOVERNMENT ESTIMATE OF $396,635, BY LETTER DATED NOVEMBER 14, SCIENTIFIC WAS REQUESTED TO REVIEW AND VERIFY ITS BID PRICE.

SCIENTIFIC RESPONDED THAT, IN PREPARING ITS BID, IT MISTAKENLY OMITTED THE COST OF THE REINSULATION SUBCONTRACTOR'S WORK AND IT'S 10 PERCENT MARKUP, REPRESENTING AN ERROR OF $148,455.70. SCIENTIFIC STATED THAT ITS BID PROPERLY SHOULD HAVE BEEN $385,767.15 ($237,311.45 PLUS $148,455.70). SCIENTIFIC SUBMITTED TO THE AGENCY TWO BID SHEETS, ONE, THE COMPLETED BID SCHEDULE IDENTICAL TO THAT SUBMITTED IN ITS BID, AND TWO, A BID SCHEDULE FORM WITH ITS SUBCONTRACTOR'S PRICES AND MARKUP. SCIENTIFIC ALSO SUBMITTED SWORN AFFIDAVITS INDICATING THAT ITS SUBCONTRACTOR'S PRICES AND MARKUP CALCULATIONS (OMITTED FROM THE BID) WERE PREPARED PRIOR TO BID OPENING. SCIENTIFIC REQUESTED THAT ITS BID BE CORRECTED TO $385,767.15, OR WITHDRAWN IF CORRECTION IS NOT PERMITTED.

ON FEBRUARY 3, 1986, THE ARMY DETERMINED THAT SCIENTIFIC PROVIDED CLEAR AND CONVINCING EVIDENCE OF A MISTAKE AND IT'S INTENDED BID PRICE. THE ARMY COMMAND COUNSEL AUTHORIZED THE CONTRACTING OFFICER TO CORRECT SCIENTIFIC'S BID TO $385,767.15. AWARD WAS MADE TO SCIENTIFIC ON MARCH 13, 1986. PRAUGHT'S PROTEST WAS TIMELY FILED WITH GAO ON MARCH 18, 1986, AND PERFORMANCE OF SCIENTIFIC'S CONTRACT HAS BEEN SUSPENDED BY THE ARMY.

THE ARMY HAS PROVIDED GAO WITH COPIES OF ALL THE DOCUMENTS SUBMITTED BY SCIENTIFIC IN SUPPORT OF ITS MISTAKE CLAIM. THE KEY DOCUMENT SUBMITTED BY SCIENTIFIC IS A BID SHEET, FILLED OUT BY SCIENTIFIC FROM QUOTES FROM ITS REINSULATION SUBCONTRACTOR PRIOR TO BID OPENING, THAT CONTAINS THE UNIT PRICES FOR THE REINSULATION WORK FOR EACH SOLICITATION LINE ITEM WHICH SCIENTIFIC ALLEGEDLY FAILED TO INCLUDE IN ITS BID.

AN AGENCY MAY PERMIT CORRECTION OF A BID WHERE CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. FEDERAL ACQUISITION REGULATION (FAR), 48 C.F.R. SEC. 14.406- 3(A); FRANCO, B-214124, MAY 1, 1984, 84-1 CPD PARA. 488. WHETHER THE EVIDENCE OF THE MISTAKE AND THE BID INTENDED MEETS THE CLEAR AND CONVINCING STANDARD IS A QUESTION OF THE FACT AND WE WILL NOT QUESTION AN AGENCY'S DECISION BASED ON THIS EVIDENCE UNLESS IT LACKS A REASONABLE BASIS. FORTEC CONSTRUCTORS, B-203190.2, SEPT. 29, 1981, 81-2 CPD PARA. 264.

WE DO NOT AGREE WITH THE AGENCY THAT SCIENTIFIC PRESENTED CLEAR AND CONVINCING EVIDENCE OF ITS INTENDED BID PRICE. SCIENTIFIC SUBMITTED AS EVIDENCE OF ITS INTENDED BID PRICE A BID SHEET SHOWING THE COST OF THE SUBCONTRACTOR'S REINSULATION WORK FOR EACH SOLICITATION LINE ITEM AND SCIENTIFIC'S MARKUP AND ANOTHER BID SHEET INDICATING THE ORIGINAL BID IT SUBMITTED.

HOWEVER, SCIENTIFIC HAS NOT PROVIDED ANY EVIDENCE AS TO HOW ITS ORIGINAL BID WAS CALCULATED WHICH WOULD CORROBORATE THE ALLEGATION THAT THE OMITTED PRICES, WHEN ADDED TO THE ORIGINAL BID, YIELD THE INTENDED BID PRICE. THE ONLY EVIDENCE SUBMITTED BY SCIENTIFIC IS ITS STATEMENT OF EXPLANATION THAT THE OMISSION OCCURRED. SCIENTIFIC'S BID STANDING ALONE OR WITH THE REINSULATION BID SHEET DOES NOT INDICATE THAT THE REINSULATION WORK WAS OMITTED FROM THE BID PRICES.

ESSENTIALLY SCIENTIFIC HAS SUBMITTED EVIDENCE ONLY OF THE COST OF THE REINSULATION WORK; HOWEVER IT HAS SUBMITTED NO WORKSHEETS SHOWING THAT THE COST OF THIS WORK WAS OMITTED FROM ITS INITIAL BID PRICE. WE DO NOT THINK THAT THIS SATISFIES THE EVIDENTIARY STANDARD OF FAR 14.406 3(A). SEE FORTEC CONSTRUCTORS, B-203190.2, SUPRA. UNLESS SCIENTIFIC CAN SHOW BY WORKSHEETS PREPARED PRIOR TO SUBMISSION OF ITS BID THAT THE REINSULATION WORK WAS OMITTED FROM ITS BID, THE BID MAY NOT BE CORRECTED UNDER THE APPLICABLE STANDARD FOR CORRECTION OF A BID.

UNDER FAR, SEC. 14.406-3(C), WITHDRAWAL OF A BID MAY BE PERMITTED WHERE THE EVIDENCE REASONABLY SUPPORTS THE EXISTENCE OF A MISTAKE BUT IS NOT CLEAR AND CONVINCING. WE HAVE NO OBJECTION TO PERMITTING SCIENTIFIC TO WITHDRAW ITS BID IN VIEW OF THE RECORD. THIS CONCLUSION IS BASED ON THE DISPARITY IN BID PRICES RECEIVED, SCIENTIFIC'S ASSERTION THAT IT MADE A MISTAKE, AND THE INABILITY OF THE ARMY TO AFFIRMATIVELY ESTABLISH THAT SCIENTIFIC DID NOT MAKE A MISTAKE. PNEUMATIC CONSTRUCTION COMPANY, B-207871, AUG. 31, 1982, 82-2 CPD PARA. 193.

FOR THE ABOVE REASONS, PRAUGHT'S PROTEST IS SUSTAINED. UNLESS SCIENTIFIC PROVIDES WORKSHEETS TO SUPPORT THE UPWARD CORRECTION OF ITS BID, WE RECOMMEND THAT THE ARMY TERMINATE SCIENTIFIC'S CONTRACT AND MAKE AWARD TO PRAUGHT IF PRAUGHT IS FOUND TO BE A RESPONSIBLE BIDDER AND THE AWARD WOULD OTHERWISE BE PROPER.