B-180169, DEC 13, 1974

B-180169, DEC 13, 1974

1. WITHOUT ANY PROBATIVE EVIDENCE TO RECONCILE DIFFERENCES BETWEEN CONTRACT ADMINISTRATOR'S AFFIDAVIT AND PROTESTER'S AFFIDAVIT SUPPORTING ALLEGATION THAT OUR PRIOR DECISION RENDERED ON BASIS OF INCORRECT FACTS, ADMINISTRATIVE VERSION IS REQUIRED TO BE ACCEPTED. 2. STANDARD IN ASPR SEC. 2-406.3(A)(3) THAT INTENDED BID MUST BE ASCERTAINABLE SUBSTANTIALLY FROM INVITATION AND BID ITSELF NOT FOR APPLICATION EXCEPT WHERE CORRECTION WOULD DISPLACE ONE OR MORE LOWER BIDS, WHICH IS NOT THE SITUATION IN THE PRESENT CASE.

BROMLEY CONTRACTING CO. INC.:

THIS REQUEST FOR RECONSIDERATION OF OUR DECISION IN THE MATTER OF BROMLEY CONTRACTING CO. INC. (BROMLEY), B-180619, AUGUST 12, 1974, IS PREMISED ON THE ALLEGATION THAT OUR AUGUST 12 DECISION WAS RENDERED ON THE BASIS OF ERRONEOUS FACTUAL INFORMATION.

THE RECORD SHOWED THAT BROMLEY SUBMITTED THE LOW OF FOUR BIDS RECEIVED FOR BUILDING RESTORATION AT WEST POINT MILITARY ACADEMY. AFTER BID OPENING, BUT BEFORE AWARD, BROMLEY ALLEGED, BY LETTER OF JUNE 19, 1973, TO THE CONTRACTING OFFICER THAT IT HAD MADE A MISTAKE IN ITS BID. A MEETING WAS ARRANGED FOR JUNE 22, 1973, TO DISCUSS THE MISTAKE. IT IS AT THIS POINT THAT BROMLEY ALLEGES THAT OUR STATEMENT OF THE FACTS WAS IN ERROR.

AS REFLECTED IN OUR AUGUST 12 DECISION, WHICH WAS PREDICATED UPON THE WRITTEN RECORD COMPILED FROM BOTH BROMLEY AND THE ARMY, THE CONTRACT ADMINISTRATOR MET WITH BROMLEY, AT THAT TIME NO DOCUMENTARY EVIDENCE HAD BEEN REQUESTED, NOR WAS ANY PRESENTED TO SUBSTANTIATE THE CLAIM OF MISTAKE. THE CONTRACT ADMINISTRATOR ADVISED BROMLEY THAT ITS BID COULD NOT BE CORRECTED, BUT THAT BROMLEY COULD BE PERMITTED TO WITHDRAW IT. NOTHING FURTHER TRANSPIRED UNTIL BROMLEY ACCEPTED THE CONTRACT. THIS WAS THE SUBSTANCE OF THE ADMINISTRATIVE REPORT FROM THE DEPARTMENT OF THE ARMY, WHICH INCLUDED THE SWORN AFFIDAVIT OF THE CONTRACT ADMINISTRATOR DATED JANUARY 25, 1974. IN PERTINENT PART, THE AFFIDAVIT STATED:

"ON JUNE 2, 1973, MEL AND HOWARD BLOOM, AGENTS OF BROMLEY CONTRACTING CO., INC., CAME TO MY OFFICE AT WEST POINT TO DISCUSS THEIR LETTER DATED JUNE 19, 1973 CLAIMING A MISTAKE IN BID. THEY PRESENTED NO FURTHER EVIDENCE IN SUBSTANTIATION OF THEIR CLAIM. I ADVISED THEM THAT OUR OFFICE COULD NOT GRANT THE RELIEF REQUESTED BUT THAT THEY COULD REQUEST US FOR PERMISSION TO WITHDRAW THEIR BID FROM CONSIDERATION. I DO NOT KNOW WHETHER THEY WERE AWARE THAT THEIR REQUESTED RELIEF COULD BE OBTAINED AT DEPARTMENT OF THE ARMY BUT I DID NOT SO INFORM THEM. BOTH MEL AND HOWARD BLOOM AGREED AT THAT TIME THAT BROMLEY CONTRACTING CO., INC. WOULD PROCEED WITH THE JOB. IT WAS CLEAR TO ME THAT THEY WERE NOT GOING TO PERSIST IN REQUESTING RELIEF FOR A MISTAKE IN BID.

"THE JUNE 19, 1973 LETTER WAS NOT ANSWERED IN WRITING BECAUSE OF THE AGREEMENT REACHED ON JUNE 22 IN MY OFFICE. I WAS NEVER AGAIN APPROACHED BY ANY AGENT OF BROMLEY CONTRACTING CO., INC. ABOUT THIS CLAIM."

BROMLEY HAS SUBMITTED A SWORN AFFIDAVIT DATED SEPTEMBER 5, 1974, SIGNED BY ITS PRESIDENT AND MANAGER, BROMLEY'S TWO PARTICIPANTS IN THE JUNE 22 MEETING, WHICH INDICATES THE FOLLOWING. BROMLEY STATES THAT IT SUBMITTED NO DOCUMENTATION BECAUSE NONE WAS REQUESTED. AFTER INFORMING BROMLEY OF A $300,000 FUNDING LIMITATION ON THE PROJECT, THE CONTRACT ADMINISTRATOR ADVISED BROMLEY:

"*** THAT THE ENGINEERING STAFF ADVISED HIM THAT OUR PRICE WAS REASONABLE AND SHOULD BE AWARDED AS BID, AND THEN THE ALTERNATIVE OF DEFAULT WAS DISCUSSED ***.

"WE TOOK A FEW MINUTES BREAK TO DISCUSS WHAT WOULD BE THE BEST COURSE FOR US TO FOLLOW AND DECIDED THAT WE WOULD HAVE TO TAKE THE JOB AT OUR PRICE OR RISK THE CONSEQUENCES OF A POSSIBLE ABANDONMENT DEFAULT.

"WE WERE TOLD OUR BID COULD NOT BE CORRECTED. WE WERE NOT TOLD WE COULD WITHDRAW OUR BID WITHOUT PREJUDICE."

AS EVIDENT FROM THE FOREGOING, THERE EXISTS A SIGNIFICANT DISPUTE AS TO A MATERIAL FACT, I.E. WHETHER BROMLEY WAS INFORMED OF ITS OPTION TO HAVE ITS BID WITHDRAWN FROM CONSIDERATION. BOTH PARTIES TO THE ACTUAL CONVERSATION HAVE SUBMITTED AFFIDAVITS, WHICH CANNOT BE RECONCILED ON THE MATTER. WITHOUT ANY PROBATIVE EVIDENCE OTHER THAN THE AFFIDAVITS FROM EACH SIDE, WE ARE REQUIRED TO ACCEPT THE ADMINISTRATIVE VERSION OF THE FACTS. MATTER OF PHELPS PROTECTION SYSTEMS INC., B-181148, NOVEMBER 7, 1974. ACCORDINGLY, WE MUST DENY THE REQUEST FOR RECONSIDERATION ON THIS BASIS.

ALTERNATIVELY, BROMLEY CONTENDS THAT EVEN THOUGH IT COULD NOT HAVE PROVEN THE EXACT AMOUNT, ITS FIGURES BEING WITHIN .13 OF 1 PERCENT OF THE INTENDED BID, SUFFICE FOR CORRECTION PURPOSES, WHEN REVIEWED IN A PREAWARD ENVIRONMENT. IN SUPPORT OF THIS ARGUMENT BROMLEY NOTES THAT ARMED SERVICES PROCUREMENT REGULATION (ASPR) SEC. 2-406.3(A)(3) ONLY REFERS TO A STANDARD OF "ASCERTAINABLE SUBSTANTIALLY." HOWEVER, THIS STANDARD IS USED IN ASPR SEC. 2-406.3(A)(3) TO REQUIRE THAT THE INTENDED BID MUST BE "ASCERTAINABLE SUBSTANTIALLY" FROM THE INVITATION AND BID ITSELF IN SITUATIONS WHERE CORRECTION WOULD RESULT IN DISPLACING ONE OR MORE LOWER BIDS, WHICH IS NOT THE CASE HERE.

BROMLEY'S ALLEGATION THAT ITS PROOF OF ITS INTENDED BID WITHIN .13 OF 1 PERCENT IS SUFFICIENT FOR BID CORRECTION PURPOSES, REFERS TO A PERCENTAGE IN ITS CORRECTED BID WHICH REDUCTION, AS NOTED IN THE AUGUST 12 DECISION, WAS ALLEGED TO BE BROMLEY'S "USUAL BID PRACTICE." THIS REDUCTION WAS APPLICABLE ONLY TO ITS FINAL REDUCTION FROM $387.964 TO $387.434. WE ALSO OBSERVED THAT OTHER REDUCTIONS, EXPLAINED ALSO AS IN ACCORDANCE WITH BROMLEY'S USUAL PATTERN, WERE OF VARYING DEGREES. AS STATED IN OUR PRIOR DECISION, THERE WAS NO DISCERNABLE BID PATTERN THAT WOULD HAVE SHED LIGHT AS TO THE EXACT INTENDED BID AS REQUIRED BY ASPR SEC. 2-406.3(D).

CONSEQUENTLY, FINDING NO ERROR OF FACT OR LAW IN OUR PRIOR DECISION, IT IS AFFIRMED.