BNUMBER:  B-278364.2 
DATE:  April 28, 1998
TITLE: Reynosa Construction, Inc.--Reconsideration, B-278364.2,
April 28, 1998
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Matter of:Reynosa Construction, Inc.--Reconsideration

File:     B-278364.2

Date:April 28, 1998

Douglas Seegmiller, Esq., for the protester.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., 
Office of the General Counsel, GAO, participated in the preparation of 
the decision.

DIGEST

1.  Request for reconsideration of decision upholding agency's 
decision to allow awardee to correct its bid is denied where, even if, 
as protester argues, awardee's bid was based on an unreasonably low 
estimate of the number of hours required to complete the job, such an 
error in judgment is not subject to the rules pertaining to mistakes 
in bids. 

2.  Request for reconsideration of decision concluding that awardee's 
bid bond was adequate even after correction of awardee's bid is denied 
where, even assuming that amount of bond was less than required by the 
solicitation, amount was greater than difference between awardee's bid 
and next higher acceptable bid.

DECISION

Reynosa Construction, Inc. requests reconsideration of our decision, 
Reynosa Constr., Inc., B-278364, Dec. 15, 1997, 97-2 CPD  para.  165, in 
which we denied its protest of the decision by the U.S. Army Corps of 
Engineers to allow Elkhorn Construction, L.L.C. to make an upward 
correction in its low bid under invitation for bids (IFB) No. 
DACA63-97-B-0059, for construction of a loading ramp and parking lot 
extension at the Marine Corps Reserve Center in Amarillo, Texas.  We 
upheld the Corps's decision to permit correction based on our finding 
that Elkhorn had demonstrated clear and convincing evidence of a 
mistake and of its intended bid.  Reynosa contends that we erred in 
concluding that errors in Elkhorn's bid, other than the one on which 
it based its request for correction, did not call into question the 
amount of its intended bid and in concluding that Elkhorn's bid 
guarantee was adequate.

We deny the request for reconsideration.

Under our Bid Protest Regulations, to obtain reconsideration, the 
requesting party must either show that our prior decision contains 
errors of fact or law, or present information not previously 
considered that warrants reversal or modification of our decision. 4 
C.F.R.  sec.  21.14(a) (1997); Lovelace Scientific Resources, Inc.--Recon., 
B-256315.2, Nov. 25, 1994, 94-2 CPD  para.  209 at 1.  Reynosa has not made 
such a showing here.

Reynosa first challenges our conclusion that, even if Elkhorn did base 
its bid on a faulty estimate as to the number of days that would be 
required to complete the project, this did not call into question the 
amount of Elkhorn's intended bid since an error in estimating the 
amount of time that a project will take is not the type of mistake for 
which correction is permitted under the Federal Acquisition Regulation 
(FAR).  In this regard, we stated in our decision that the FAR permits 
correction of a mistake only where it can be demonstrated that the 
bidder intended a bid other than the one submitted--that is, where the 
mistake is attributable to something other than the bidder's exercise 
of his own business judgment.  Citing Paul Schmidt Constr. Co., 
B-204009, Aug. 5, 1981, 81-2 CPD  para.  99 at 2, we stated that a bidder 
thus will not be permitted to correct its bid if, after bid opening, 
it decides that it has underestimated the number of hours that will be 
required to perform the job.  

Reynosa argues that the reasoning in Paul Schmidt should be applied 
only where both the original and the revised estimates are within a 
reasonable range (i.e., the difference between the two estimates 
represents nothing more than would reasonably be expected between two 
competent estimators).  The protester contends that where the 
difference is larger than that, the original estimate should be viewed 
as a mistake--and thus subject to correction under mistake-in-bid 
procedures.  According to Reynosa, since the awardee in this case has 
offered no explanation for the alleged estimating error, it cannot be 
determined whether the awardee's bid, as corrected, would remain low.  
Thus, Reynosa argues, the awardee's bid cannot be accepted.

The rule proposed by the protester is not the rule applicable in these 
instances.  A bidder's error in judgment, such as the alleged 
estimating mistake here, is subject to the rules pertaining to 
mistakes in bids only where the error is so egregious that acceptance 
of the bid by the government would be unconscionable (i.e., where an 
award to the bidder would mean that the government was obviously 
getting something for nothing).  Handy Tool & Mfg. Co., Inc., 60 Comp. 
Gen. 189, 192 (1981), 81-1 CPD  para.  27 at 5, citing Ruggiero v. United 
States, 420 F.2d 709, 713 (Ct. Cl. 1970); see also C.W.R. Constr., 
Inc., B-224301, Dec. 2, 1986, 86-2 CPD  para.  629 at 3-5.  Here, Reynosa 
has demonstrated neither that Elkhorn's estimate of the number of 
labor hours required to complete the project was egregiously low nor 
that acceptance of Elkhorn's bid, without correction of the alleged 
error, was unconscionable.  In fact, and as noted above, not only was 
Elkhorn's price of $362,670 not significantly lower than Reynosa's own 
price of $383,000, it was considerably higher than the government 
estimate of $317,170.  

Reynosa also argues that we erred in allowing the Corps of Engineers 
to disregard the omission of allowances for certain required items 
from Elkhorn's worksheets.  Reynosa alleged that Elkhorn omitted from 
its bid worksheet allowances for a critical cement pump, for a 
required environmental waste management plan, and for required 
carpenters, form setters, and steel setters.  Reynosa did not allege, 
however, that the alleged omissions would have accounted for more than 
the difference between Elkhorn's bid, as corrected, and its own; in 
other words, Reynosa did not allege that it was prejudiced by the 
Corps's failure to require correction of these omissions.  In this 
regard, the protester proffered no estimate as to the amount by which 
Elkhorn's price would have increased had it included in its estimate 
allowances for carpenters, form setters, and steel setters.  Further, 
Reynosa's estimate of the amount by which inclusion of allowances for 
a cement pump and for an environmental plan would have increased the 
bid price was $10,000, which is less than half the difference between 
Elkhorn's bid, as corrected, and Reynosa's.

Next, Reynosa argues that we erred in holding that because the penal 
sum of Elkhorn's bid bond was expressed as a percentage of its bid 
price, and not as a specific amount, Elkhorn's upward correction of 
its bid did not render the bid guarantee inadequate.  The protester 
contends that the surety's obligation was set at the time of bid 
opening (as 20 percent of its bid of $188,424, or $37,684.80), and did 
not increase as a result of Elkhorn's correction of its bid price.

We see no basis to conclude that we erred in finding that Elkhorn's 
bid guarantee, the penal sum of which was expressed as a percentage of 
the bid price, increased as a result of Elkhorn's correction of its 
price.  Although the protester insists that the surety's obligation 
was set at the time of bid opening (as 20 percent of its mistaken bid 
price), it has cited no authority in support of its position, and we 
are aware of none.

Moreover, even assuming that the protester is correct that the amount 
of Elkhorn's bond was set at an amount certain ($37,684.80) at the 
time of bid opening, rejection of the bond as insufficient would not 
have been required since the amount of the bond was still greater than 
$20,330, the difference between Elkhorn's bid, as corrected, of 
$362,670 and Reynosa's next low bid of $383,000.  In this regard, FAR  sec.  
28.101-4(c)(2) provides that noncompliance with a solicitation 
requirement for a bid guarantee shall be waived when the amount of the 
bid guarantee submitted is less than required, but equal to or greater 
than the difference between the bid and the next higher acceptable 
bid.  See S.J. Amoroso Constr. Co., Inc., B-240687, Nov. 27, 1990, 
90-2 CPD  para.  432 at 2.  Thus, the amount of the original obligation was 
sufficient to permit waiver of the noncompliance.

The request for reconsideration is denied.

Comptroller General
of the United States