BNUMBER:  B-278796 
DATE:  March 16, 1998
TITLE: Cal-City Construction, Inc., B-278796, March 16, 1998
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Matter of:Cal-City Construction, Inc.

File:     B-278796

Date:March 16, 1998

Timothy A. Sullivan, Esq., Starfield & Payne, for the protester.
George N. Brezna, Esq., Charles Chambers, Esq., and Vicki E. O'Keefe, 
Esq., Department of the Navy, for the agency.
Linda C. Glass, Esq., and Paul I. Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency improperly permitted low bidder to correct an alleged mistake 
in its bid consisting of the noninclusion of topsoil import cost, 
where the evidence of the omission consists of a subcontractor's 
quotation which notes an "additive" amount encompassing excluded 
topsoil import, but does not establish that the bidder intended to 
include the cost of this item in its bid, under a solicitation which 
specifically provided that topsoil import would not be necessary if 
the work was performed in compliance with specifications.

DECISION

Cal-City Construction, Inc. protests the award of a contract to I.E. 
Pacific, Inc. under invitation for bids (IFB) No. N68711-96-B-3744, 
issued by the Department of the Navy for the repair of certain firing 
ranges and the addition of an irrigation system at the Edson Ranges, 
Marine Corps Base, Camp Pendleton, California.  Cal-City contends that 
the Navy improperly permitted Pacific to correct an alleged mistake in 
its low bid, that Pacific should only be permitted to withdraw its 
bid, and that award should be made to Cal-City, the next low bidder.

We sustain the protest.

The solicitation, issued on July 17, 1997, required the submission of 
a fixed-price bid for two base items with associated bond costs and an 
additive item, also with bond costs.  Base bid item 0001A included all 
of the effort required to repair and upgrade four firing ranges 
including repairs and rehabilitation of ancillary structures.  It also 
included, among other things, correction of drainage problems 
including regrading for positive drainage; installation of culverts 
and drainage structures when required; patching and sealing existing 
paving and any incidental related work.  Base bid item 0001B included 
the addition of an irrigation system at Edson Ranges, lighting at the 
500-yard firing line, and incidental related work.  Additive bid item 
0001AA was for the addition of the firing surface on the firing lines 
and incidental related work.  Subsection 3.8.2 of section 02315 of the 
IFB (addressing the specifications for excavation and fill) required 
that 4 inches of topsoil be provided for newly graded finish earth 
surfaces and areas disturbed by the contractor.  The subsection stated 
that additional topsoil would not be required if work was performed in 
compliance with the IFB stripping and stockpiling requirements, but 
that if there was insufficient on-site topsoil meeting specified 
requirements for topsoil, the contractor was to provide topsoil 
required in excess of that available.

Nine bids were received and opened on September 4, 1997.  Pacific was 
the apparent low bidder at $2,671,400 and Cal-City was next low at 
$3,154,600.  The government estimate for the project was $3,726,000.  
Because Pacific's bid was substantially lower than the government 
estimate and the other bids, by letter dated September 5, the 
contracting officer requested Pacific to verify its bid.  By letter 
dated September 12, Pacific responded that it had made a "clerical 
error" in its bid.  Pacific stated that it used a $407,878 quote from 
a subcontractor for all work contained under the general excavation, 
filling, and backfilling requirement and, in the process of reviewing 
its bid, Pacific discovered that the subcontractor's quote consisted 
of two pages, not just the one page received and relied upon by 
Pacific.  The second page contained an additive of $350,000 for 
topsoil import that Pacific's letter stated was "required by the 
project documents."  Pacific requested upward correction of its bid in 
the amount of $350,000 plus its general markup of 10 percent, plus a 
concordant $3,000 increase in Pacific's bond costs, for a total 
increase of $388,000.  Pacific's corrected total bid of $3,059,400 
would remain low.  If not allowed to correct, Pacific requested that 
it be permitted to withdraw its bid.  
In support of its correction request, Pacific submitted its original 
worksheets, the subcontractor quote sheets, and an explanation that 
its mistake resulted from having received only the first page of the 
two-page subcontractor quote.  The agency, after reviewing documents 
and Pacific's subsequent response to additional questions concerning 
the alleged mistake, found that the evidence clearly and convincingly 
proved the existence of both the mistake and the intended bid.  The 
agency therefore concluded that Pacific should be allowed to correct 
its bid, and on November 25, awarded to Pacific at the corrected price 
of $3,059,400.  This protest from Cal-City followed; performance has 
been stayed pending resolution.   

A bidder's request for correction of a low bid before award may be 
granted only where there is clear and convincing evidence establishing 
both the existence of the mistake and the intended bid.  Federal 
Acquisition Regulation  sec.  14.407-3(a).  Whether the evidence meets this 
standard is a question of fact, and our Office will not question an 
agency's decision based on this evidence unless it lacks a reasonable 
basis.  Maple Constr. Co., Inc., B-270073, Feb. 6, 1996, 96-1 CPD  para.  43 
at 2.  Workpapers, including computer generated spreadsheets, 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.   

The protester maintains that since the subcontractor's quote treats 
topsoil import as an excluded additive item, it was not part of the 
quote, and the determination of whether to include the item was 
completely within Pacific's discretion.  The protester contends that 
Pacific did not provide any pre-bid evidence to demonstrate that it 
intended to use imported topsoil in this project, or include it as 
part of its bid.  We agree. 

The evidence submitted by Pacific shows that its excavation 
subcontractor provided a two-page quote, the first page of which 
appears to be a complete quote which sets forth a "base bid amount" of 
$407,878 for "section 02315:  general excavation, filling and 
backfilling" to be performed "per plans and specifications."   The 
second page consists of a list of five specified "exclusions," the 
fourth of which is topsoil import, and at the bottom of the list is 
noted, "additive bid to provide import soils based on 75,000 cy [cubic 
yards] +, - for; Total Cost $350,000."  While Pacific states that it 
did not have this second page in hand when it prepared its bid, we 
fail to see how the page establishes that Pacific actually intended to 
include topsoil import in its bid.  The first page of the 
subcontractor's quote consists of a list of specific functions it 
proposed to perform for $407,878, and the list does not include 
topsoil import.  Thus, even if Pacific did not have the second page of 
this quote when preparing its bid, Pacific had reason to know that the 
cost of topsoil import was not included in the subcontractor's quote.  

Pacific's computer generated worksheets include this subcontractor's 
quote under an item entitled "CLEAR & GRUB," and does not list topsoil 
import as a line item.  In seeking upward adjustment of its bid, 
Pacific advised the agency that its bid was low because it rejected 
higher subcontractor quotes for certain work, deciding instead to use 
its own work force to perform some of the demolition, landscaping, 
irrigation, underground utilities, drywall, framing, and concrete.  In 
this regard, the additional questions asked of Pacific by the agency 
during the correction process pertained to the other items listed as 
exclusions on page 2 of the subcontractor quote.  Pacific explained 
that two of the excluded items were already included in Pacific's 
general condition costs and that two others did not affect Pacific's 
price (the agency viewed these items as unlikely contingencies).  The 
fifth exclusion was topsoil import.  In our view, the differing 
treatment of these various page 2 exclusions by Pacific establishes 
that this missing page of the subcontractor quote cannot reasonably be 
viewed as establishing Pacific's intent.  See Bush Painting, Inc., 
B-239904, Aug. 30, 1990, 90-2 CPD  para.  188 at 3.    

This record contains no probative evidence that even if Pacific had 
had the complete subcontractor's quote at the time it prepared its 
bid, it intended to include, or would have included, in its bid the 
quoted amount for topsoil import.  This is particularly true in light 
of the above-noted solicitation provision that no topsoil importation 
would be required if the existing topsoil was stripped and stockpiled 
for reuse as specified in the IFB.  In this regard, the agency states 
that it "rechecked" the topsoil requirements after the correction 
request was made and "determined that import fill would be required " 
(in the amount of 65,000 cubic yards); however, the agency also states 
that in preparing the IFB, the "Architect/Engineer design team 
estimated that there was balanced amount of cut and fill, so no 
importing of soil would be required."  

On this record, it is at best uncertain whether, at the time Pacific 
prepared its bid,  there was any reason for it to have included 
topsoil import, much less any reliable evidence of how much topsoil 
import it might have included, or whether it would have subcontracted 
for the topsoil import.  Consequently, particularly in view of the 
closeness of the proposed corrected bid to the next low bid, it was 
not reasonable for the agency to find that the subcontractor quote 
provided clear and convincing evidence of Pacific's intended bid.  Id.  
Accordingly, the Navy improperly permitted Pacific to correct the bid.  

We recommend that Pacific's contract be terminated for the convenience 
of the government.  In view of the agency's reevaluation of the 
solicitation drawings and requirements after the correction request 
and its conclusion that 65,000 cubic yards of import topsoil would be 
necessary, despite the solicitation's contrary advice, the agency 
should consider whether the solicitation was so materially defective 
as to warrant cancellation and resolicitation under amended 
specifications.  Otherwise, the contract should be awarded to 
Cal-City, if it is eligible for award.  We also recommend that 
Cal-City be reimbursed its costs of filing and pursuing this protest, 
including reasonable attorneys' fees.  4 C.F.R.  sec.  21.8(d)(1) (1997).  
Cal-City should submit its certified claim for costs to the 
contracting agency within 60 days of receiving this decision.  4 
C.F.R.  sec.  21.8(f)(1).

The protest is sustained.    

Comptroller General
of the United States