B-167887, OCT. 23, 1969

B-167887, OCT. 23, 1969

MISTAKES--ALLEGATION PRIOR TO AWARD--CORRECTION--STILL LOWEST BID AFTER REQUESTED BID VERIFICATION, AND UPON RECEIPT OF ORIGINAL WORKSHEETS EVIDENCING ERROR IN COMPUTATION OF LOW BID WHICH ALLEGEDLY RESULTED FROM SUBCONTRACTOR, ONE HOUR BEFORE MAILING OF BID, REVISING QUOTATION OF ASPHALT PAVING COSTS WHICH WERE SUBTRACTED FROM RATHER THAN ADDED TO TOTAL PRICE, ADMINISTRATIVE DECISION, IN ACCORDANCE WITH REGULATORY AUTHORITY TO ALLOW $4,200 PRICE INCREASE WILL NOT BE DISTURBED, SINCE NO LEGAL BASIS EXISTS TO CONCLUDE THAT EVIDENCE WAS NOT SUFFICIENTLY CLEAR TO WARRANT CORRECTION. BID AS CORRECTED WILL STILL BE LOWEST AND SHOULD BE CONSIDERED FOR AWARD IF OTHERWISE PROPER.

TO TECTONICS, INC.:

REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 11, 1969, PROTESTING THE AWARD OF A CONTRACT TO THE SOUTHWEST ENGINEERING CO. UNDER INVITATION FOR BIDS NO. ES-16-5-70, ISSUED BY THE UNITED STATES WEATHER BUREAU, CENTRAL REGION HEADQUARTERS, ENVIRONMENTAL SCIENCE SERVICES ADMINISTRATION, KANSAS CITY, MISSOURI.

THE INVITATION WAS ISSUED ON JULY 17, 1969, FOR CONSTRUCTION OF AN OFFICE BUILDING AND ERECTION AND MODIFICATION OF A 50-FOOT STEEL RADAR TOWER IN MONETT, MISSOURI. FIVE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION WHICH WAS OPENED ON SEPTEMBER 5, 1969, AS FOLLOWS:

COMPANY BID

CARSON-MITCHELL, INC. $208,400

HOMER CARR CONSTRUCTION COMPANY 199,050

A.G. PROCTOR COMPANY, INC. 188,500

TECTONICS, INC. 174,000

SOUTHWEST ENGINEERING CO. 116,540

BECAUSE THE LOW BID SUBMITTED BY SOUTHWEST WAS SIGNIFICANTLY LOWER THAN ALL OTHER BIDS RECEIVED, THE CONTRACTING OFFICER AT KANSAS CITY, SUSPECTING THAT A MISTAKE HAD BEEN MADE, TELEPHONED SOUTHWEST ON SEPTEMBER 8, 1969, AND REQUESTED VERIFICATION OF ITS BID. SOUTHWEST RESPONDED BY LETTER DATED SEPTEMBER 8, 1969, IN WHICH IT STATED THAT THERE WAS A $4,200 ARITHMETIC MISTAKE IN ITS LUMP-SUM BID. IN SUPPORT OF THE ALLEGATION OF MISTAKE, SOUTHWEST FURNISHED ITS ORIGINAL WORKSHEETS AND REQUESTED THAT ITS BID BE CORRECTED UPWARD TO ADJUST THE $4,200 MISTAKE.

A REVIEW OF THE WORKSHEETS BY THE CONTRACTING OFFICER DISCLOSED THAT THE ERROR OCCURRED IN COMPUTING THE TOTAL LUMP-SUM BID AS SHOWN ON THE WORKSHEET. SOUTHWEST CLAIMS THAT A SUBCONTRACTOR, BLEVINS ASPHALT CO., MT. VERNON, MISSOURI, TELEPHONED APPROXIMATELY 1 HOUR BEFORE SOUTHWEST MAILED ITS BID, ADVISING THAT ITS QUOTE FOR THE ASPHALT PAVING WAS BEING RAISED FROM $4,100 TO $6,200. BLEVINS CONTENDED IT HAD MISUNDERSTOOD THE ASPHALT THICKNESS REQUIREMENTS AND ITS ORIGINAL QUOTE WAS BASED ON A 1- INCH THICKNESS WHILE THE CONTRACT IN QUESTION REQUIRED A 3-INCH THICKNESS. SOUTHWEST, IN ITS HASTE TO MAIL THE BID, INADVERTENTLY SUBTRACTED THE $2,100 IN ADDITIONAL COSTS FOR ASPHALT WHEN IT SHOULD HAVE BEEN ADDED. THIS RESULTED IN THE BID BEING $4,200 LOWER THAN SOUTHWEST HAD INTENDED. THE CONTRACTING OFFICER, AFTER CAREFUL REVIEW OF ALL AVAILABLE FACTS AND EVIDENCE, FELT THAT SOUTHWEST DID, IN FACT, MAKE AN ERROR IN ARITHMETIC AND CONCLUDED THAT ITS REQUEST FOR AN UPWARD ADJUSTMENT OF $4,200 WAS VALID.

YOU PROTEST THE PROPOSED AWARD OF A CONTRACT TO SOUTHWEST CONTENDING THAT THE AMOUNT OF THE INTENDED BID HAS NOT BEEN SATISFACTORILY ESTABLISHED BY SOUTHWEST.

IN REGARD TO MISTAKES IN BIDS ALLEGED AFTER OPENING AND PRIOR TO AWARD, SECTION 1-2.406-3 (A) (2) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES AS FOLLOWS:

"/2) A DETERMINATION MAY BE MADE PERMITTING THE BIDDER TO CORRECT HIS BID WHERE THE BIDDER REQUESTS PERMISSION TO DO SO AND CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF A MISTAKE AND THE BID ACTUALLY INTENDED. * * *"

THE QUESTION FOR DETERMINATION, THEREFORE, IS WHETHER THE EVIDENCE OF RECORD ESTABLISHED THAT AN ERROR ACTUALLY WAS MADE BY SOUTHWEST, AS ALLEGED, AND WHETHER THE AMOUNT OF THE INTENDED BID HAS BEEN SATISFACTORILY ESTABLISHED.

THE CONTRACTING OFFICER CONCLUDED AFTER A CAREFUL REVIEW OF THE EVIDENCE THAT THE REQUIREMENTS OF FPR SEC. 1-2.406-3 (A) (2) WERE MET BY SOUTHWEST. 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 INTENDED BY SOUTHWEST.

THE AUTHORITY CONTAINED IN FPR SEC. 1-2.406.3 (A) 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. 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 HERE WAS NOT SUFFICIENTLY CLEAR AND CONVINCING TO WARRANT CORRECTION OF THE BID. 152145, OCTOBER 4, 1963; B-163919, APRIL 29, 1968; 41 COMP. GEN. 469 (1962).

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