BNUMBER:  B-278364 
DATE:  December 15, 1997
TITLE: Reynosa Construction, Inc., B-278364, December 15, 1997
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Matter of:Reynosa Construction, Inc.

File:     B-278364

Date:December 15, 1997

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

DIGEST

Where correction of bid did not result in displacement of lower bid, 
agency properly relied on evidence extraneous to the invitation for 
bids and bid itself in determining that bidder had demonstrated, by 
clear and convincing evidence, both the existence of a mistake and the 
bid intended.

DECISION

Reynosa Construction, Inc. protests the decision of 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 deny the protest.

The IFB asked bidders for a single lump-sum price for the construction 
work.  Four bids were received by the September 24, 1997, opening 
date.  Elkhorn's bid of $188,424 was lowest of the four; Reynosa's bid 
of $383,000 was second low.  The government estimate for the work was 
$317,170.

Elkhorn's manager, Jerry Bublitz, telephoned the agency after bid 
opening and was told that his company was the apparent low bidder with 
a bid of $188,424.  Mr. Bublitz responded that this was not his 
company's bid, and immediately faxed to the agency copies of Elkhorn's 
computer worksheets for this solicitation and for a second 
solicitation issued by the same contracting office, IFB No. 
DACA63-97-B-0021, for construction work at the Marine Corps Reserve 
Center in Broken Arrow, Oklahoma, for which his company had also 
submitted a bid on September 24.  Mr. Bublitz explained that he had 
been preparing his company's bids on the two projects simultaneously, 
and that in hastening to complete the two bid schedules, he had 
inadvertently entered the bid price from his working papers for IFB 
No. -0021 on the bid schedule for IFB No. -0059, and the bid price 
from his working papers for IFB No. -0059 on the bidding schedule for 
IFB No. -0021.  Mr. Bublitz was advised that if an error existed, 
Elkhorn should ask either to withdraw its bid or to correct it.

Elkhorn subsequently submitted a request that it be permitted to 
correct its bid amount from $188,424 to $362,670.  In an affidavit 
accompanying the request, Mr. Bublitz explained in greater detail how 
he had interchanged the two bid schedules.  Mr. Bublitz noted that, 
since both IFBs required the submission of a copy of the bid with the 
original, he had sent his office manager out to make copies of the bid 
forms.  When the office manager returned the forms to him, he had 
placed the bid form pertaining to IFB No. -0059 on the bid package 
pertaining to IFB No. -0021, and the bid form pertaining to IFB No. 
-0021 on the bid package pertaining to IFB No. -0059.  As a result, he 
had entered the sum that he intended to bid for IFB No. -0059--i.e., 
$362,670--on the form pertaining to IFB No. -0021, and the sum that he 
had intended to bid for IFB No. -0021--i.e., $188,424--on the form 
pertaining to IFB No. -0059.  The work papers submitted support Mr. 
Bublitz's claim in that they show an intended bid of $188,427 for the 
Broken Arrow project[1] and an intended bid of $362,670 for the 
Amarillo project.  The bid abstract pertaining to IFB No. -0021 also 
supports Mr. Bublitz's claim in that it shows that the agency received 
a bid of $362,670 from Elkhorn.

The agency determined that Elkhorn had submitted clear and convincing 
evidence that a mistake had been made, the manner in which it 
occurred, and of the bid actually intended.  It therefore permitted 
Elkhorn to correct the amount of its bid.  Reynosa's protest to our 
Office followed.

Reynosa first argues that the agency improperly relied on evidence 
outside of Elkhorn's bid in deciding to allow correction of the bid.  
In this regard, the applicable Federal Acquisition Regulation (FAR) 
provision, FAR  sec.  14.407-3(a), states:

     If a bidder requests permission to correct a mistake and clear 
     and convincing evidence establishes both the existence of the 
     mistake and the bid actually intended, the agency head may make a 
     determination permitting the bidder to correct the mistake; 
     provided, that if this correction would result in displacing one 
     or more lower bids, such a 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.

Reynosa contends that Elkhorn displaced it as the bidder in line for 
award when it was permitted to correct its bid since Elkhorn's bid, as 
uncorrected, was so far out of line with the other bids and the 
government estimate that the agency could not have accepted it.  The 
protester thus asserts, citing the final clause of FAR  sec.  14.407-3(a), 
that since the corrected bid could not be determined without reference 
to evidence outside the bid, it was improper to allow correction.

FAR  sec.  14.407-3(a) requires that the existence of a mistake and the bid 
actually intended be ascertainable from the IFB and the bid itself 
only where a bidder is requesting permission to make a downward 
correction in its bid that would result in displacing one or more 
lower bids.  In other words, the FAR permits the submission of proof 
outside the confines of the IFB and the bid itself where a bidder is 
seeking upward correction of its bid amount.  There is no suggestion 
in the applicable FAR provisions that a different standard of proof is 
to be applied depending on how low the mistaken bid is.  On the 
contrary, FAR  sec.  14.407-3(g)(5), the FAR provision which addresses 
rejection of very low mistaken bids, calls for rejection of such a bid 
where the bidder "fails or refuses to furnish evidence in support of 
[the] suspected or alleged mistake"--clearly a reference to 
information outside the bid itself. 

Where, as here, a bidder requests upward correction of its bid, there 
must be clear and convincing evidence of the mistake and the intended 
bid.  FAR  sec.  14.407-3(a).  Whether the evidence furnished in support of 
a correction meets the clear and convincing standard is a question of 
fact and we will not question an agency's determination based on the 
evidence unless it is unreasonable.  Merrick Constr. Co., Inc., 
B-270661, Apr. 8, 1996, 96-1 CPD  para.  181 at 2.  In considering an upward 
correction of a bid, worksheets may constitute clear and convincing 
evidence if they are in good order and indicate the intended bid price 
and there is no contravening evidence.  Id.

Here, there was a large disparity between the awardee's bid 
($188,424), and the protester's second low bid ($383,000) and the 
government estimate ($317,170).  This disparity, coupled with the 
disparity on the other solicitation for which the awardee 
simultaneously submitted a bid, reasonably indicated to the agency 
that the awardee had made a mistake in its bid.  The awardee's 
worksheets and the affidavit from Mr. Bublitz confirmed that the 
awardee had made a mistake and intended to bid $362,670 for this 
project.  Under these circumstances we conclude that the agency 
reasonably determined that the awardee's evidence of mistake and its 
intended price were clear and convincing, and thus that correction of 
the bid was proper.  See W.H. Hussey & Assocs., Inc., B-237207, Feb. 
1, 1990, 90-1 CPD  para.  137 at 3, recon. denied, B-237207.2, May 2, 1990, 
90-1 CPD  para.  442.

In challenging the agency's decision to allow correction here, Reynosa 
argues that a review of Elkhorn's worksheets reveals that Elkhorn made 
a number of errors in calculating its bid.  The protester contends 
that, for example, Elkhorn's allowances for meals and lodging and for 
time for its job foreman, and for time for its concrete finishers and 
for its laborers, are all mistakenly low, since each translates to 
only about 2 months of work, whereas the contract provides for a 
performance period of 150 days.  Reynosa argues that if Elkhorn were 
to have based its bid on a more realistic projection as to the number 
of days work that would be required to complete the project, Elkhorn's 
price would have been higher than its own.  The protester contends 
that if a contractor's worksheets show errors other than those on 
which the request for correction is based, which more than account for 
the difference between its bid and the next low bid, then relief for 
mistake should be denied.

Assuming, for the sake of argument, that Reynosa is correct in its 
allegation that Elkhorn underestimated the number of days of work that 
would be required to complete this project and based its bid on that 
faulty estimate, this is not the type of mistake for which correction 
would be permitted under the FAR mistake-in-bid procedures.  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.  The rule that allows bid 
correction does not extend to permitting the bidder to recalculate its 
bid to include factors which the bidder did not have in mind when the 
bid was submitted.  Thus, a bidder 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.  Paul 
Schmidt Constr. Co., B-204009, Aug. 5, 1981, 81-2 CPD  para.  99 at 2.  
Since Elkhorn could not have obtained correction of its bid on the 
basis that its initial estimate regarding the number of work hours 
that would be required to complete the project was faulty, we do not 
think that this provides a basis upon which to question the amount of 
its intended bid.

Finally, the protester alleges that Elkhorn's bid should have been 
rejected because Elkhorn did not submit a revised bid bond sufficient 
to cover the amount of its revised bid, as required by FAR  sec.  
28.101-4(c)(5).[2]  The penal sum of Elkhorn's bid bond was expressed 
as a percentage of its bid price--i.e., 20 percent, up to a maximum 
bid amount of $500,000--and not as a specific amount.  Thus, the bid 
guarantee did not become inadequate as a result of Elkhorn's upward 
correction of its bid.

The protest is denied.

Comptroller General
of the United States

1. The protester points out that there is a $3 discrepancy between the 
amount on Elkhorn's worksheet for the Broken Arrow project and the 
amount of the bid that it submitted under IFB -0059.  We view the 
discrepancy as de minimis. 

2. FAR  sec.  28.101-4(c)(5) permits the waiver of noncompliance with a 
solicitation requirement for a bid guarantee where the guarantee 
becomes inadequate as a result of the correction of a mistake under 
FAR  sec.  14.407--"but only if the bidder will increase the bid guarantee 
to the level required for the corrected bid."