BNUMBER:  B-261353; B-261353.2
DATE:  September 18, 1995
TITLE:  J.L. Malone & Associates, Inc.; Helix Electric, Inc.

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Matter of:     J.L. Malone & Associates, Inc.; Helix Electric, Inc.

File:          B-261353; B-261353.2

Date:          September 18, 1995
                                                           
Joel S. Rubenstein, Esq., Bell, Boyd & Lloyd, for J.L. Malone & 
Associates, Inc., and Vicki L. Hamilton, Esq., Marks & Golia, for 
Helix Electric, Inc., the protesters.
Leo S. McNamara, Esq., McNamara & Flynn, for The Ryan Co., an 
interested party.
Lester Edelman, Esq., and Danielle Conway-Jones, Esq., Department of 
the Army, for the agency.
Wm. David Hasfurther, Esq., and Michael R. Golden, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.
                                                           
DIGEST

Where the agency reasonably concluded that the low bidder presented 
clear and convincing evidence of a mistake in its bid and of the 
intended bid price and the bid is low with or without correction, the 
agency properly allowed the bidder to correct the mistake and increase 
its bid price.
                                                           
DECISION

J.L. Malone & Associates, Inc. and Helix Electric, Inc. protest the 
U.S. Corps of Engineers's decision to award a contract to The Ryan 
Co., after first permitting Ryan to correct a mistake allegedly made 
in its low bid, under invitation for bids (IFB) No. DACA41-95-B-0009, 
issued for the construction of an exterior electrical distribution 
system at the Lake City Ammunition Plant, Missouri.  Malone also 
protests the acceptability of Helix's bid.[1]

We deny the protest.

The IFB, issued on February 15, 1994, requested, as later amended, 
lump-sum prices for three items.  Item 0001, base schedule, consisted 
of all work except that included under option items 0002 and 0003.  
Item 0002 was for backup power for region 10, and item 0003 was for 
backup power for regions 6 and 10.  Six bids were received prior to 
bid opening.

Ryan submitted the low bid.  Helix submitted the next low bid, and 
Malone submitted the third low bid.  Since Ryan's total price of 
$8,806,000 was 22 percent below the government estimate, the 
contracting officer requested Ryan to verify its prices.  Ryan then 
alleged a mistake in its bid and requested permission to correct it.  
The contracting officer requested Ryan to submit documentation to 
support its claim of mistake.  Ryan forwarded its original bid backup 
documents and affidavits to prove its mistake, the nature of the 
mistake, and its intended bid.  On the basis of these submissions, 
Ryan was permitted to correct its base schedule price upward from 
$7,542,000 to a total of $8,520,336 based on the omission of $845,000 
for "site and civil work" from the bid.  As corrected, Ryan's bid was 
still low by $794,664, or approximately 7.5 percent of the next low 
bid.

Ryan's bid documents and affidavits explained the mistake as follows:  
Ryan revised its estimate for the civil and site work required under 
the solicitation just prior to bid opening.  It inserted the revised 
price into the spread sheet in its computer.  In deleting the old 
price for that work from the "carry" column, it made a data entry 
error and deleted the function that carried the revised cost in the 
"price" column over into the column to be added to arrive at the total 
base bid.  Thus, the entire cost for site and civil work was excluded 
from Ryan's bid when the revised price in the "price" column was not 
also included in the "carry" column to be totaled by the computer 
program.  The agency determined that the spread sheets submitted by 
Ryan supported the allegation of mistake because the subcontractor 
sheet on the base bid showed Ryan as the supplier for site and civil 
work, the estimate for this work was listed as $845,000,[2] and the 
item had been intended for inclusion in the bid price--it had been 
designated with a 1.00 factor, as were all other subtotal categories 
which had been used to calculate Ryan's total prices for the base 
schedule and the options.  The "carry" column for site work was blank 
on the spread sheet.

Malone protests the correction of Ryan's bid on the basis that some of 
the items on Ryan's site and civil work spread sheets are not priced 
but rather are designated with the words "ROY" or "QUOTE" in the 
material columns and the word "QUOTE" in the material, labor, and 
equipment columns which are used for totaling the prices on the 
pertinent spread sheet pages.  Malone argues that while a mistake may 
have occurred, Ryan's intended price has not been established and the 
agency should have allowed Ryan to withdraw, but not correct, its bid.

Helix argues that Ryan's mistake was not correctable and that Ryan's 
bid should have been withdrawn.  Helix asserts that Ryan previously 
has consistently bid below other bidders and the government estimate 
by large margins, as here, and has never requested permission to 
correct its bid.

Helix additionally argues that the facts suggest that Ryan had a 
preconceived plan to increase its bid price after bid opening.  Helix 
believes that logic dictates that when Ryan changed its price for the 
site and civil work on its computer program the changes would have 
been limited to the "price" column and there would have been no 
additional need to delete the old price from the "carry" column.  
Helix finds it incomprehensible that Ryan would have missed such a 
mistake in computing its bid since the page on which the site and 
civil work price is placed reflects the total bid price as well as the 
page total and thus the "running tally" was constantly visible and a 
"mistake" of such a magnitude could not have gone unnoticed.  Helix 
notes that the worksheets are undated and thus could have been 
generated after prices were exposed at bid opening.

An agency may permit correction of a bid where clear and convincing 
evidence establishes both the existence of a mistake and the bid 
actually intended.  Federal Acquisition Regulation  14.406-3(a).  For 
an upward correction of a low bid, workpapers may constitute part of 
that clear and convincing evidence if they are in good order and 
indicate the intended bid price, and there is no contravening 
evidence.  Fishermen's Boat Shop, Inc., B-252560, July 9, 1993, 93-2 
CPD  11.  Correction may be allowed even though the intended bid 
price cannot be determined exactly, provided there is clear and 
convincing evidence that the amount of the intended bid would fall 
within a narrow range of uncertainty and would remain low after 
correction. McInnis Bros. Constr., Inc., B-251138, Mar. 1, 1993, 93-1 
CPD  186.

As the agency explains, the items for which Malone notes that the 
spread sheets showed the words "quote" or "Roy" are priced elsewhere 
in the Ryan spread sheets, and the use of the words "quote" or "Roy" 
simply identifies the source of the prices, that is, "quote" indicates 
that the price came from an outside subcontractor or supplier while 
"Roy" refers to an employee-estimator of the company.  Thus, contrary 
to Malone's argument, the use of these terms provides no basis to 
question the agency's decision.

Helix's protest also has no merit.  There is simply no support in the 
record for the assertion that Ryan did not intend to price the site 
and civil work or, as Helix alleges, that its mistake was part of a 
pattern of bidding low with the intent of seeking correction after bid 
opening.  Ryan's spread sheets showed the omission of this work from 
the bid total.  Although the subcontractor spread sheet for site and 
civil work showed a total price of $845,000, Ryan failed to include 
the $845,000 on the spread sheet containing subtotal items to be added 
for the total base bid.  The site and civil work subtotal category was 
marked with a 1.00 factor, and for every category of Ryan's bid where 
a factor of 1.00 was in the same row as the estimate the subtotals 
were incorporated into the base bid.  On this record, we think the 
agency reasonably found clear and convincing evidence of the mistake 
and the intended bid.[3]

The protest is denied.

 \s\ Ronald Berger
 for Robert P. Murphy
     General Counsel    

1. In view of our disposition of the protest regarding Ryan, we need 
not consider the protest against the acceptability of Helix's bid.

2. The computer price spread sheet on which pricing for the work was 
itemized showed a total price of $845,525.  Ryan states it rounded 
this figure down to $845,000.

3. Helix also argues that computer spread sheets are too easy to 
generate after bid opening and should not be an acceptable basis to 
permit correction.  The mere fact that bid worksheets were developed 
by computer does not preclude them from constituting valid evidence to 
support a request for bid correction.  D. L. Draper Assoc., B-213177, 
Dec. 9, 1983, 83-2 CPD  662; C Constr. Co., Inc., B-253198.2, Sept. 
30, 1993, 93-2 CPD  198.  The key consideration is whether or not the 
submissions are clear and convincing of the mistake and intended bid.  
The manipulation of the mistake in bid rules may occur just as easily 
when a bidder has prepared its worksheets without the use of a 
computer.  It is because of the risk that correction could lead to 
abuse of the competitive system that correction is permitted only 
where, as here, a high standard of proof has been met.  Southwest 
Constr. Corp., B-228013, Oct. 8, 1987, 87-2 CPD  346.