B-175717, JUN 26, 1972

B-175717, JUN 26, 1972

BID PROTEST - MISTAKE IN BID - CORRECTION ALLOWED DENIAL OF PROTEST BY H. W. STANFIELD CONSTRUCTION CORPORATION AGAINST THE AWARD OF A CONTRACT TO THE CARDAN COMPANY, INC; UNDER IFB NO. N62474-71-B- 4529, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN DIEGO, CALIF. UNDER ASPR 2-406.3(A)(3), A BIDDER MAY BE ALLOWED TO CORRECT A MISTAKE IN HIS BID IF CLEAR AND CONVINCING EVIDENCE ESTABLISHES BOTH THE EXISTENCE OF THE MISTAKE AND THE BID ACTUALLY INTENDED. SINCE SUCH EVIDENCE DOES EXIST IN THIS INSTANCE, IT WAS NO ABUSE OF DISCRETION FOR THE CONTRACTING OFFICER TO ALLOW CARDAN TO CORRECT THE MISTAKE IN ITS LOW BID.

TO H. W. STANFIELD CONSTRUCTION CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 13, 1972, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO THE CARDAN COMPANY, INC. (CARDAN), UNDER INVITATION FOR BIDS NO. N62474-71-B-4529, ISSUED DECEMBER 1, 1971, BY THE NAVAL FACILITIES ENGINEERING COMMAND, SAN DIEGO, CALIFORNIA.

THE INVITATION SOLICITED BIDS FOR THE CONSTRUCTION OF BACHELOR ENLISTED QUARTERS AT THE NAVAL HOSPITAL, CAMP PENDLETON, CALIFORNIA, COMPRISED OF A BASE BID ITEM AND FOUR ADDITIVE ITEMS. SIXTEEN BIDS WERE RECEIVED AND OPENED ON THE SCHEDULED OPENING DATE, JANUARY 18, 1972, IN PERTINENT PART, AS FOLLOWS:

BASE BID ADDITIVE #1 #2 #3 #4

CARDAN

(LOW BID) $917,700 $5,000 $16,000 $5,000 $7,000

MONTGOMERY,

ROSS, FISHER, INC.

(SECOND LOW BID) 1,000,0006,500 12,000 3,500 7,000

GOVERNMENT

ESTIMATE 1,069,600 3,700 7,100 2,600 25,000

YOUR BID IN THE AMOUNT OF $1,020,000 WAS SIXTH LOW. SINCE THE APPARENT LOW BIDDER CARDAN, WAS APPROXIMATELY 8 PERCENT UNDER THE NEXT LOW BIDDER ON THE BASE BID ITEM AND 14 PERCENT UNDER THE GOVERNMENT ESTIMATE, VERIFICATION OF THE BASE BID WAS REQUESTED BY THE GOVERNMENT, AS PROVIDED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-406.1.

BY A LETTER DATED JANUARY 21, 1972, CARDAN CLAIMED AN ERROR IN ITS BID HAD BEEN MADE AND ENCLOSED A COPY OF THE WORKSHEET UTILIZED IN COMPUTING THE BID. CARDAN'S CONTENTION WAS THAT THE TOTAL FOR THE ITEMS CONTAINED ON ITS WORKSHEET ADD TO $971,224 BUT WERE ERRONEOUSLY TRANSPOSED FROM THE ADDING MACHINE TAPE AS TOTALING $917,224 AND ROUNDED TO $917,700 TO MAKE THE BID. CARDAN REQUESTED THAT THE ERROR EITHER BE CORRECTED AND AWARD BE ISSUED BASED ON THE CORRECT AMOUNT, OR THAT IT BE PERMITTED TO WITHDRAW ITS BID.

PURSUANT TO ASPR 2-406.3(B)(2) THE MATTER WAS SUBMITTED TO HIGHER AUTHORITY FOR A DETERMINATION OF WHETHER CARDAN COULD CORRECT THE BID TO $971,700 PURSUANT TO ASPR 2-406.3(A)(3). BY A DETERMINATION AND FINDINGS DATED FEBRUARY 9, 1972, THE ASSISTANT COMMANDER FOR CONTRACTS, NAVAL FACILITIES ENGINEERING COMMAND, FOUND THAT THERE WAS CLEAR AND CONVINCING EVIDENCE BOTH AS TO THE MISTAKE AND THE BID INTENDED. FURTHER, HE FOUND THAT CORRECTION TO $971,700 ON THE BASE BID ITEM WOULD NOT DISPLACE THE NEXT LOW BIDDER ON ANY COMBINATION OF ITEMS ON WHICH AWARD COULD BE MADE. ACCORDINGLY, HE PERMITTED CORRECTION OF CARDAN'S BID FOR THE BASE BID ITEM TO AN AMOUNT OF $971,700 AND HE AUTHORIZED AWARD TO CARDAN FOR ANY COMBINATION OF ITEMS FOR WHICH FUNDS WERE AVAILABLE.

YOU CONTEND THAT CARDAN HAS BEEN ALLOWED TWO BITES AT THE APPLE. ADDITION, YOU CLAIM THAT INASMUCH AS THE WITHDRAWAL OF CARDAN'S BID WOULD ALLOW ANOTHER COMPANY TO PERFORM THE CONTRACT AT ITS STATED PRICE, YOU CANNOT CONDONE ANY ACTION WHICH NEGATES PROCUREMENT PROCEDURES AND MAKES A MOCKERY OF THE CONCEPT OF FAIRNESS. FURTHER, YOU STATE THAT IF CARDAN HAS MADE A LEGITIMATE ERROR, THE GOVERNMENT MAY FREE THEM FROM PENALTY BY ALLOWING A WITHDRAWAL OF THE BID, BUT YOU PROTEST THE REWARDING OF A BIDDER FOR MAKING A MISTAKE AT THE EXPENSE OF THE OTHER BIDDERS.

AFTER BIDS HAVE BEEN OPENED, AND A BIDDER THEN CLAIMS AN ERROR EXISTED IN HIS BID, ASPR ALLOWS BIDS TO BE CORRECTED ONLY UNDER CERTAIN CIRCUMSTANCES. IN THIS REGARD, ASPR 2-406.3(A)(3) PROVIDES, AS FOLLOWS:

"(3) WHERE 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. *** "

OUR OFFICE HAS CAREFULLY EXAMINED THE DOCUMENTS SUBMITTED AND WE CONCLUDE THAT THEY AMPLY SUPPORT THE DETERMINATION BY THE ASSISTANT COMMANDER FOR CONTRACTS, NAVAL FACILITIES ENGINEERING COMMAND. IT IS OUR VIEW THAT CARDAN'S WORKSHEET ESTABLISHES BEYOND DOUBT THAT A MISTAKE WAS MADE. FURTHER, THE WORKSHEET CONTAINS A DETAILED BREAKDOWN OF THE BID COMPUTED WHICH FULLY SUPPORTS THE FIGURE OF $971,700 ALLEGED TO HAVE BEEN INTENDED. IN ADDITION, THE CORRECTION TO $971,700 ON THE BASE BID ITEM WILL NOT DISPLACE THE NEXT LOW BIDDER ON ANY COMBINATION OF ITEMS ON WHICH AWARD COULD HAVE BEEN MADE. AS A RESULT, WE CONCUR IN THE DETERMINATION PERMITTING CARDAN TO CORRECT ITS BID. SEE 41 COMP. GEN. 160 (1961); B- 167091, JULY 30, 1969.

ACCORDINGLY, YOUR PROTEST IS DENIED.