B-163919, APR. 29, 1968

B-163919, APR. 29, 1968

TO ALSUP AND STARK:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1968, PROTESTING ON BEHALF OF PARSON ASPHALT PRODUCTS, INC., THE ADMINISTRATIVE CORRECTION OF THE LOW BID SUBMITTED BY FORD CONSTRUCTION COMPANY, INC., UNDER INVITATION FOR BIDS NO. DSA-003-68-B-0192, ISSUED BY THE DEFENSE DEPOT OGDEN.

THE INVITATION, DATED JANUARY 29, 1968, CALLED FOR THE FOLLOWING WORK: "FURNISH ALL PLANT, LABOR, EQUIPMENT, APPLIANCES, AND MATERIAL IN CONNECTION WITH THE COMPACTION AND APPLICATION OF A PRIME COAT AND A DOUBLE BITUMINOUS SEAL COAT SURFACE TREATMENT ON APPROX. 207,000 SQUARE YARDS OF STORAGE AREAS AT DEFENSE DEPOT OGDEN, OGDEN, UTAH.' THREE BIDS WERE RECEIVED AND OPENED ON MARCH 1, 1968, AS FOLLOWS: FIFE CONSTRUCTION CO. $90,675 FORD CONSTRUCTION COMPANY, INC. 60,030 PARSON ASPHALT PRODUCTS, INC. 89,550

BECAUSE THE BID OF FORD CONSTRUCTION COMPANY, INC., WAS SO LOW IN RELATION TO THE GOVERNMENT'S ESTIMATE OF $79,750 AND THE OTHER TWO BIDS, THE CONTRACTING OFFICER REQUESTED FORD ON MARCH 4, 1968, TO VERIFY ITS BID. BY LETTER DATED MARCH 5, FORD ENCLOSED ITS WORKSHEETS AND ADVISED THAT IT HAD MADE A $20,700 ERROR IN THE COMPUTATION OF THE BID. FORD REQUESTED THAT ITS BID BE CORRECTED TO REFLECT ITS INTENDED BID AS SUBSTANTIATED BY ITS ORIGINAL WORKSHEETS.

BY DETERMINATION NO. BA 68-31, DATED APRIL 9, 1968, THE ASSISTANT COUNSEL, DEFENSE SUPPLY AGENCY, MADE THE FOLLOWING FINDINGS PURSUANT TO PARAGRAPH 2-406.3 (G) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR): "* * * THE BID OF SUBJECT COMPANY AT $60,030.00 WAS SO MUCH LOWER THAN THE OTHER TWO BIDS OF $89,550 AND $90,675 AND THE GOVERNMENT ESTIMATE OF $79,750 THAT THE PROCUREMENT AGENT SUSPECTED AN ERROR AND REQUESTED THE LOW BIDDER TO VERIFY HIS BID. "2. AFTER REVIEWING HIS WORK SHEETS THE BIDDER ALLEGED A MISTAKE IN FAILING TO INCLUDE IN HIS BID PRICE ?10 PER SQUARE YARD FOR INDIRECT COSTS. BY LETTER OF EXPLANATION THE BIDDER SUBMITTED HIS WORK SHEETS SHOWING THE COMPUTATION OF VARIOUS DIRECT COSTS AND THEIR ADDITION FOR A TOTAL OF $59,120. THIS WAS REDUCED TO A COST PER SQUARE YARD OF ?2856, ROUNDED OFF TO ?29. A NOTE REFLECTED HIS INTENTION TO BID ?39. THE BIDDER STATES THAT IN HIS HASTE TO COMPLETE THE BID THE NIGHT BEFORE BID OPENING, HE EVIDENTLY MULTIPLIED INSTEAD BY ?29 BY MISTAKE. "3. THE EVIDENCE IS CLEAR AND CONVINCING BOTH AS TO THE MISTAKE AND THE BID INTENDED. IF CORRECTED, THE BID WILL REMAIN SUBSTANTIALLY LOWER THAN OTHER BIDS RECEIVED. ACCORDINGLY, IT IS HEREBY DETERMINED PURSUANT TO ASPR 2-406.3 THAT THE BID OF FORD CONSTRUCTION COMPANY MAY BE CORRECTED TO $80,730.00. THIS CONFIRMS TELEPHONED AUTHORIZATION ON 19 MARCH 1968.' ACCORDINGLY, THE FORD BID WAS CORRECTED BY THE CONTRACTING OFFICER TO $80,730. UPON OUR REVIEW OF THE RECORD, WE CONCLUDE THAT THE EXISTENCE OF A MISTAKE IN BID IS CLEARLY EVIDENT AND THAT THE EVIDENCE ESTABLISHES BOTH THE NATURE OF THE MISTAKE AND THE BID ACTUALLY INTENDED BY FORD.

THE AUTHORITY CONTAINED IN ASPR 2-406.3 TO MAKE CORRECTIONS SUCH AS HERE INVOLVED WAS GRANTED AND IS MATERIALLY CONSISTENT WITH OUR OFFICE DECISION OF JUNE 29, 1954, B-120281. THE QUESTION WHETHER A BIDDER MAY CHANGE A BID AFTER OPENING BECAUSE OF MISTAKE THEREIN ALWAYS PRESENTS A MATTER OF SERIOUS CONCERN. IN ORDER TO AUTHORIZE CORRECTION OF A BID, THE BIDDER MUST FURNISH EVIDENCE WHICH CONCLUSIVELY ESTABLISHES NOT ONLY THE EXISTENCE OF THE MISTAKE, BUT ITS NATURE, HOW IT OCCURRED, AND WHAT THE BIDDER ACTUALLY INTENDED TO BID. SEE ASPR 2 406.3 (D). THE FORM OF SUCH EVIDENCE NECESSARILY WILL VARY WITH THE CIRCUMSTANCES OF EACH CASE, BUT THE EVIDENCE NECESSARILY MUST BE THE BEST AVAILABLE. SINCE THE AUTHORITY TO CORRECT MISTAKES ALLEGED AFTER OPENING BUT PRIOR TO AWARD IS VESTED IN THE PROCUREMENT AGENCY BY REGULATION, THE WEIGHT TO BE GIVEN EVIDENCE IN SUPPORT OF AN ALLEGED MISTAKE IS A QUESTION OF FACT TO BE CONSIDERED BY THE ADMINISTRATIVELY DESIGNATED EVALUATOR OF THE EVIDENCE. WE PERCEIVE OF NO LEGAL BASIS TO CONCLUDE THAT THE EVIDENCE SUBMITTED BY FORD WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT CORRECTION OF FORD'S BID. 152145, OCTOBER 4, 1963; 41 COMP. GEN. 469.

ACCORDINGLY, AND SINCE FORD'S BID AS CORRECTED WILL STILL BE THE LOWEST BID RECEIVED, WE FIND NO LEGAL BASIS TO OBJECT TO AN AWARD TO SUCH BIDDER IF OTHERWISE PROPER.