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B-176096, OCT 12, 1972

B-176096 Oct 12, 1972
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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. 41 COMP. THE FREHNER BID WAS PROPERLY CORRECTED IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE. TO LAS VEGAS PAVING CORPORATION: REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 31. PROTESTING THAT IT WAS HIGHLY IRREGULAR FOR THE ATOMIC ENERGY COMMISSION TO ADD $84. ADVISED THAT THE ADDITION WAS MADE TO CORRECT AN ERROR IN BID AND EXPLAINED THE BASIS FOR THE CORRECTION. THE CORPORATION ERRONEOUSLY ASSUMED THAT BIDDERS WERE TO QUOTE A SEPARATE UNIT PRICE FOR THE REQUIRED 85-100 ASPHALT CEMENT AS THEY WERE REQUIRED TO DO FOR THE BITUMINOUS PRIME COAT.

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B-176096, OCT 12, 1972

BID PROTEST - REFORMATION OF CONTRACT - ERROR IN BID DECISION DENYING THE PROTEST OF LAS VEGAS PAVING CORPORATION AGAINST THE ADDITION OF $84,400 TO THE LOW BID SUBMITTED BY FREHNER CONSTRUCTION COMPANY UNDER AN IFB ISSUED BY THE ATOMIC ENERGY COMMISSION, AND THE AWARD OF A CONTRACT TO FREHNER. SECTION 1-2.406-3(A)(2) OF THE FEDERAL PROCUREMENT REGULATIONS 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. 41 COMP. GEN. 160 (1961). THE FREHNER BID WAS PROPERLY CORRECTED IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE.

TO LAS VEGAS PAVING CORPORATION:

REFERENCE IS MADE TO YOUR TELEGRAM DATED MAY 31, 1972, PROTESTING THAT IT WAS HIGHLY IRREGULAR FOR THE ATOMIC ENERGY COMMISSION TO ADD $84,400 TO THE LOW BID SUBMITTED BY FREHNER CONSTRUCTION COMPANY, INC., UNDER INVITATION FOR BIDS NO. 261-72-9, AND TO MAKE AN AWARD ON THAT BASIS.

THE COPY OF THE ADMINISTRATIVE REPORT SENT TO YOU ON JULY 14, 1972, ADVISED THAT THE ADDITION WAS MADE TO CORRECT AN ERROR IN BID AND EXPLAINED THE BASIS FOR THE CORRECTION. THE REPORT INDICATES THAT FREHNER FAILED TO INCLUDE IN ITS LUMP-SUM BID PRICES FOR ITEM 6A OF SCHEDULE "A" AND FOR ITEM 4B OF SCHEDULE "B" THE COST OF THE REQUIRED 85-100 ASPHALT CEMENT (OIL). THE CORPORATION ERRONEOUSLY ASSUMED THAT BIDDERS WERE TO QUOTE A SEPARATE UNIT PRICE FOR THE REQUIRED 85-100 ASPHALT CEMENT AS THEY WERE REQUIRED TO DO FOR THE BITUMINOUS PRIME COAT, TACK COAT, AND SEAL COAT, ITEMS 7A, 8A, AND 9A OF SCHEDULE "A" AND ITEMS 5B, 6B, AND 7B OF SCHEDULE "B." IN SUPPORT OF ITS ALLEGATION OF ERROR AND OF ITS INTENDED BID PRICES, FREHNER HAS SUBMITTED THE ORIGINAL WORKSHEETS USED IN COMPUTING ITS BID PRICES. ONE OF THE WORKSHEETS IS TITLED "A. C. PRODUCTS" AND IT SHOWS THE QUANTITIES AND PRICES FOR BITUMINOUS PRIME COAT, TACK COAT, SEAL COAT, AND AN ITEM LABELED 85-100 WHICH THE RECORD INDICATES IS ASPHALT CEMENT. THE WORKSHEET COVERING THE "A. C. PRODUCTS" SHOWS THE QUANTITY OF 85-100 (ASPHALT CEMENT) AS 2,111 TONS AND THAT THE BID PRICE FOR THAT ITEM SHOULD BE $40 PER TON. THE SUMMARY WORKSHEET UPON WHICH FREHNER'S LUMP SUM BID PRICE FOR THE ASPHALTIC CONCRETE PAVEMENT COVERED BY ITEM 6A OF SCHEDULE "A" SHOWS VARIOUS ITEMS OF COST TOTALING $257,068 - THE CORPORATION'S BID PRICE FOR THAT ITEM. NONE OF THE VARIOUS ITEMS OF COSTS INCLUDE AN AMOUNT FOR 85-100 ASPHALT CEMENT. IT ALSO IS NOTED THAT FREHNER'S SUMMARY BID SHEET FOR ITEM 4B OF SCHEDULE "B" DOES NOT CONTAIN ANY AMOUNT FOR 85-100 ASPHALT CEMENT IN THE VARIOUS ITEMS OF COST. IN ADDITION, CORRECTION OF THE FREHNER BID WOULD NOT CHANGE ITS STANDING AS LOW BIDDER. ON THE BASIS OF THE FOREGOING, THE FREHNER BID WAS CORRECTED.

SECTION 1-2.406-3(A)(2) OF THE FEDERAL PROCUREMENT REGULATIONS 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. COMP. GEN. 160 (1961); B-172578, JULY 22, 1971; AND CHRIS BERG, INC. V. UNITED STATES, 192 CT. CL. 176 (1970). THE FREHNER BID WAS PROPERLY CORRECTED IN ACCORDANCE WITH THE ESTABLISHED PROCEDURE.

ACCORDINGLY, THE PROTEST IS DENIED.

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