BNUMBER:  B-278279 
DATE:  January 14, 1998
TITLE: Pueblo Enterprises, Inc., B-278279, January 14, 1998
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Matter of:Pueblo Enterprises, Inc.

File:     B-278279

Date:January 14, 1998

Theodore M. Bailey, Esq., for the protester.
George N. Brezna, Esq., and Vicki E. O'Keefe, Esq., Naval Facilities 
Engineering Command, for the agency.
Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably denied the protester's request to correct its bid 
where the protester's claim of a mistake was based on workpapers that 
the agency reasonably found not to be in good order because they did 
not show the intended bid.

DECISION

Pueblo Enterprises, Inc. protests the Department of the Navy's 
decision to deny its request to correct mistakes in its bid under 
invitation for bids (IFB) No. N62766-97-B-2723, issued by the Naval 
Facilities Engineering Command, Marianas, Guam, for furnishing and 
installing replacement doors and windows on 275 housing units.

We deny the protest.

The IFB requested a fixed price for the project work, a fixed price 
for the bonds for the project, and a total price.  Among the 
specifications describing the work were a requirement that the empty 
spaces in the walls next to certain doors and windows be filled with 
concrete,[1] and a requirement for certain aluminum embossed panel 
doors.  Two amendments to the IFB were issued.  Amendment No. 0002, 
among other things, changed the bid opening date to August 5 and 
specified that the embossed panel doors could be either steel or 
aluminum.  

Seventeen bids were submitted.  The low bids were as follows:

             BIDDER                     TOTAL PRICE

South Gulf, Inc.                              $2,992,000

Pueblo                                        $3,247,668

Speegle Construction Company                  $3,731,000

Reliable Builders, Inc.                       $3,734,000

Black Construction Corporation                $3,868,000

Kim Brothers Construction Corporation              $3,960,000
The other bids ranged up to $4,852,357.  The government estimate for 
the project was $4,598,897.  Pueblo submitted an initial bid in the 
amount of $3,096,876 ($3,075,000 base bid plus $21,876 bond price) and 
a facsimile modification adding $150,792 ($150,000 plus $792 bond 
price) to this original bid.

South Gulf's low bid was rejected due to an uncorrectable mistake in 
bid.  Meanwhile, the Navy requested Pueblo to verify its bid since it 
was significantly below the government estimate and the other bids.  
Initially, Pueblo verified its bid, but following the agency's request 
for a detailed written breakdown of costs, Pueblo claimed that it had 
made certain mistakes in its bid price and requested an upward 
correction in the amount of $160,659.83.  

In support of its request, Pueblo furnished original hand-written 
undated worksheets that it claimed it had utilized to formulate its 
price and an affidavit by the bid preparer explaining the mistakes.  
The 17 submitted worksheets consisted of (1) a takeoff sheet for the 
installation of each type of door and window (14 worksheets), (2) a 
worksheet totaling the results from these 14 worksheets, (3) a 
worksheet showing how the original base bid of $3,075,000 was 
calculated (one element of cost on this worksheet is the total from 
worksheet (2) mentioned above), and (4) a worksheet showing a revised 
base bid of $3,281,141 based on adjustments made after the preparation 
of the $3,075,000 base bid.  The affidavit certifies that all of these 
worksheets were prepared prior to bid opening.  Pueblo's total claim 
of $160,659.83 includes its standard markup and bond costs that are 
stated on its summary worksheets.

Pueblo explained that the first mistake was on the takeoff sheet 
calculating the labor and material costs for installing "D1" and "D2" 
(french) doors.  Pueblo advised that the quantity of these doors (532) 
was multiplied by $365 instead of $575, which accounted for an error 
in the amount of $111,720.  The worksheets reasonably support a 
conclusion that this particular error was made.

Pueblo explained that the second mistake occurred when it attempted to 
add an additional $37 in material and labor costs to its costs for 
doing the concrete infills around certain doors and windows.  Pueblo 
explained that after preparing the original takeoff sheets, but prior 
to bid opening, it discovered that it had neglected to add certain 
additional costs required to construct the second concrete infill 
around the D1 and D2 doors, and those same additional costs for 
concrete infills around various window types.  As evidence of this 
mistake, Pueblo references certain marks at the top of applicable 
takeoff sheets in a different color of ink stating "Concrete 2 Block 
+37" or "Concrete +37."  Pueblo advises that, as evidenced on the 
revised bid worksheet, it erroneously calculated the number of 
infills, to which this $37 cost adjustment was to be applied, as 805, 
when the correct number of infills was 1,395 (calculated in the bid 
preparer's affidavit), so that $21,460 (580 x $37) was omitted from 
its intended bid.  

The Navy denied Pueblo's request for correction because Pueblo did not 
provide clear and convincing evidence of the existence of the second 
claimed mistake or the intended total bid, although there was evidence 
that Pueblo had made a mathematical error in calculating its D1/D2 
installation costs.  The agency found that the workpapers were 
undated, contained various, sometimes unexplained, calculations, and 
were not in good order.  The agency particularly noted that the total 
on the revised base bid worksheet showing a base bid of $3,281,141 did 
not match up to the actually submitted base bid of $3,225,000, so 
there was no clear and convincing evidence of the intended bid. 

Pueblo protests that the Navy unreasonably denied its request for bid 
correction because its worksheets and supporting affidavit constituted 
clear and convincing evidence of both the mistakes and the intended 
bid.  With its comments on the agency report on the protest, Pueblo 
submitted another undated hand-written worksheet showing how it 
calculated its base bid of $3,225,000.  Pueblo explains that this 
worksheet considered the effect of the agency's relaxation of 
specifications regarding the embossed panel doors, which this 
worksheet, after some calculations, estimates at "say deduct $50,000."  
According to the protester (although the worksheet does not evidence 
this), the $3,281,141 base bid, as calculated on the above-mentioned 
revised base bid worksheet, was rounded down to $3,275,000.  The 
worksheet then deducts the previously calculated $50,000 from 
$3,275,000 to show the intended base bid of $3,225,000, and the 
difference between this figure and the "hard bid" of $3,075,000 is 
calculated at $150,000--the amount shown on the bid modification.

In order to protect the competitive bid system from abuse, the Federal 
Acquisition Regulation (FAR) imposes a high standard of proof--clear 
and convincing evidence--upon bidders seeking upward correction of 
their bids after bid opening but before award.  The bidder must submit 
clear and convincing evidence that a mistake was made, the manner in 
which the mistake occurred, and the intended price.  FAR  sec.  
14.407-3(a).  The exact amount of the intended bid need not be 
established, provided that 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.  CRK-JVC/Shockley Joint Venture, 
B-265937, Jan. 17, 1996, 96-1 CPD  para.  85 at 5.  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.  Id.  An agency may not permit the correction 
of a mistake asserted after bid opening, but before award, if the 
bidder's evidence fails to meet the high standard of proof established 
by FAR  sec.  14.407-3(a), notwithstanding the good faith of the parties.  
Furthermore, because the contracting agency is vested with authority 
to correct mistakes, and because the weight to be given evidence in 
support of a mistake is a question of fact, we will not disturb an 
agency's decision concerning bid correction unless there was no 
reasonable basis for the decision.  Id.
                        
We find that the agency had a reasonable basis for denying Pueblo's 
request for bid correction.  The workpapers that Pueblo furnished to 
explain the mistakes in its bid and the intended bid were not in good 
order, and did not demonstrate with clear and convincing evidence 
either the second claimed error or the intended bid price.  

Specifically, the significance of the notations referencing "Concrete 
+37" on the tops of some of the takeoff sheets has not been 
convincingly traced to a miscalculation of additional costs for 
infills.  While the protester now asserts how many infills were 
encompassed by the $37 figure, this amount is not apparent from the 
worksheets (but is only calculated in an affidavit supporting the 
claim).  This particular error was not one of mere arithmetic, but may 
have reflected a judgmental pricing decision by Pueblo in calculating 
its bid price.  Id. at 6-7.

In addition, and of even greater significance is the fact that no 
worksheets provided to the agency in support of the mistake claim 
matched Pueblo's bid price.  Moreover, the changes in prices from the 
initial base bid worksheet and the revised base bid worksheet were not 
explained and are not otherwise apparent.  We find that the agency 
could not reasonably have determined Pueblo's intended bid price based 
on the worksheets that Pueblo provided to the agency.

Pueblo advises that the worksheet showing how it calculated its bid 
modification, which was first submitted with its report comments, was 
not previously submitted to the agency or our Office because it did 
not relate to the mistakes claimed by Pueblo.  We disagree, since this 
worksheet purports to be the ultimate documentation for Pueblo's final 
bid on the IFB.  While Pueblo may have believed this document was 
irrelevant to the actual mistakes, FAR  sec.  14.407-3(g)(2) provides that 
a request for correction of a claimed mistake in bid "shall include 
all pertinent evidence such as the bidder's file copy of the bid, the 
original worksheets and other data used in preparing the bid . . . and 
any other evidence that establishes the existence of the error, the 
manner in which it occurred, and the bid actually intended."  Here, 
Pueblo failed to provide a critical element, namely worksheets showing 
"the bid actually intended."  In the absence of such worksheets, the 
Navy had a reasonable basis for finding that Pueblo had not presented 
the requisite clear and convincing evidence to warrant correction of 
its bid.[2]

The protest is denied.

Comptroller General
of the United States

1. These spaces are referred to as concrete infills.

2. The protester's submission of the additional undated worksheet in 
its comments to our Office is largely irrelevant to the question 
before us, which is whether the agency's denial of the request for bid 
correction had a reasonable basis in the record before the agency at 
the time.  Moreover, such a tardy production of a critical document 
also raises credibility concerns as well as doubts about the good 
order of the workpapers.