BNUMBER: B-279859
DATE: July 27, 1998
TITLE: Cromartie and Breakfield, B-279859, July 27, 1998
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Matter of:Cromartie and Breakfield
File:B-279859
Date:July 27, 1998
Charles Cromartie for the protester.
George Brezna, Esq., Lis Young, Esq., and Kimberly L. Foltz, 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 reasonably rejected low quote due to suspected mistake where
quote was significantly lower than the government estimate and the
other quotes received and, notwithstanding agency's request, the
protester failed to submit documentation or explanation which
adequately supported its quote.
DECISION
Cromartie and Breakfield protests the rejection of its low quote under
request for quotations (RFQ) No. N68925-98-Q-A171, issued by the
Department of the Navy, for woodland debris removal at the United
States Naval Observatory, Washington, D.C.
We deny the protest.
The solicitation, issued as a small business set-aside under
simplified acquisition procedures, requested a lump-sum price to
provide all necessary labor, material, equipment and supervision for
ground maintenance services described as the removal of all dead wood,
limbs, branches, trees, and vegetation throughout a 98,970 square foot
area. The RFQ specified the removal of dead wood overhanging or
hanging onto trees or vegetation and all vines to an elevation of 8
feet. RFQ, Woodland Debris Removal Specification para. 2.
The Navy received five quotations on March 31, 1998, of which
Cromartie's was low at $7,673, with the other quotes ranging from
$23,500 to $45,000. The government estimate for the work was
$23,973.50. By letter dated April 1, the contracting officer informed
Cromartie that its quote appeared to be unreasonably low and out of
line with the government estimate and asked Cromartie to review its
worksheets for possible errors or omissions. Cromartie was also
requested to submit a price breakdown and to provide three references
for tree removal work, documentation showing that it was qualified to
perform this type of work, and a project plan showing how it intended
to complete the work.
By letter dated April 3, Cromartie declined to provide a price
breakdown stating that the scope of work was not specific; there were
no "quantitative measurements verbally or graphic illustrations" and
therefore it was impossible to give a price breakdown. Cromartie
provided a list of references and, as its project plan, stated that
"[w]e will be using chain saws, ladders, harness belts, complete
clothing, ropes and roll aways to cut down, clean up and remove
debris."
By letter dated April 8, the Navy rejected Cromartie's quote as
unreasonable as to price. A purchase order was issued to the second
low quoter, The Davey Tree Expert Company, for $23,500. The protester
essentially argues that the rejection of its quote as unreasonably low
actually constituted a nonresponsibility determination that should
have been referred to the Small Business Administration (SBA) for
consideration under its certificate of competency (COC) procedures.
In its report submitted in response to the protest, the agency
explains that it rejected Cromartie's quote on the basis of Federal
Acquisition Regulation (FAR) sec. 14.407-3(g)(5), which allows the
rejection of a bid that is obviously erroneous, such that acceptance
of the bid would be unfair to the bidder or other bona fide bidders.
The agency maintains that due to the extreme disparity between
Cromartie's price and the prices of other quoters and the government
estimate, together with Cromartie's refusal to provide an adequate
price breakdown, acceptance of Cromartie's quote would be unfair even
though Cromartie had not claimed to have made any mistake.
Where, as here, simplified acquisition procedures are used,
contracting agencies may properly use innovative approaches so as to
award contracts in the manner that is most suitable, efficient and
economical in the circumstances of each acquisition. FAR sec. 13.003(h);
Bosco Contracting, Inc., B-270366, Mar. 4, 1996, 96-1 CPD para. 140 at 2.
Our Office reviews allegations of improper agency actions in
conducting simplified acquisitions to ensure that the procurements are
conducted consistent with the concern for fair and equitable
competition that is inherent in any federal procurement. Huntington
Valley Indus., B-272321, Sept. 27, 1996, 96-2 CPD para. 126 at 2.
While the provisions of FAR part 14 are not directly applicable to a
procurement under simplified acquisition procedures, FAR part 13
affords contracting officers discretion to use those provisions.
Specifically, FAR sec. 13.106-2(b)(1) provides:
The procedures prescribed in Parts 14 and 15 are not mandatory.
At the contracting officer's discretion, one or more, but not
necessarily all, of the evaluation procedures in Part 14 and 15
may be used.
Here, the agency used the procedure under FAR sec. 14.407-3(g)(1), which
calls for a contracting officer to immediately request a bidder whose
bid contains a suspected mistake to verify the bid, and requires that
the "[a]ction taken to verify bids must be sufficient to reasonably
assure the contracting officer that the bid as confirmed is without
error, or to elicit the allegation of a mistake by the bidder." FAR sec.
14.407-3(g)(5) then provides:
Where the bidder fails or refuses to furnish evidence in support
of a suspected or alleged mistake, the contracting officer shall
consider the bid as submitted unless (i) the amount of the bid is
so far out of line with the amounts of other bids received, or
with the amount estimated by the agency or determined by the
contracting officer to be reasonable, or (ii) there are other
indications of error so clear, as to reasonably justify the
conclusion that acceptance of the bid would be unfair to the
bidder or to other bona fide bidders.
A contracting officer's decision to reject an apparently mistaken bid
under the authority of the above-quoted FAR provision is subject to
question only where it is unreasonable. Pamfilis Painting, Inc.,
B-237968, Apr. 3, 1990, 90-1 CPD para. 355 at 3. Whether a bidder admits
that it has made a mistake is not dispositive as to whether a bid may
be rejected as mistaken. TLC Fin. Group, B-237384, Jan. 26, 1990,
90-1 CPD para. 116 at 3. Where it is clear that a mistake has been made,
the bid cannot be accepted, even if the bidder verifies the bid,
denies the existence of a mistake, or seeks to waive an admitted
mistake, unless it is clear that the bid as submitted and intended
would remain low. Trataros Constr., Inc., B-254600, Jan. 4, 1994,
94-1 CPD para. 1 at 3; Atlantic Servs., Inc., B-245763, Jan. 30, 1992,
92-1 CPD para. 125 at 3.
Here, the contracting officer appropriately exercised his discretion
in applying the procedures outlined under FAR sec. 14.407-3(g)(5), and
reasonably determined to reject Cromartie's quote as mistaken.
As noted above, the agency believed Cromartie had made a mistake
because its price was significantly out of line with the government
estimate and with the other quotes (300 percent). Even though the
protester was apprised of the agency's concerns, Cromartie did not
furnish evidence to show that there was no mistake or to indicate how
it had calculated its quote, despite the agency's request for a price
breakdown. Even now, when the importance of such information should
be plain to Cromartie, the protester has not furnished our Office any
evidence to demonstrate that its quote was not mistaken. Further, in
its response to the agency's inquiry, the limited project plan that
Cromartie provided did not indicate that Cromartie had calculated the
cost of removing vegetation, vine and brush, a requirement that was
valued at approximately 50 percent of the government's estimate and
was more than Cromartie's quote for performing the entire requirement.
Under these circumstances, the contracting officer reasonably rejected
Cromartie's quote.
The rejection of a low bid as obviously erroneous is not a matter of
bidder responsibility as contended by Cromartie. Rejection of a bid
because it is too low or below cost concerns bidder responsibility
only where there is no evidence of a mistake. Omni Elevator Co.,
B-241678, Feb. 25, 1991, 91-1 CPD para. 207 at 4-5; Zimmerman Plumbing and
Heating Co., B-211879, June 24, 1983, 83-2 CPD para. 16 at 2. However,
where, as here, a quote is obviously erroneous, FAR sec. 14.407-3(g)(5)
authorizes the agency to reject it without any consideration as to
whether the quoter is responsible. Accordingly, Cromartie's quote was
properly rejected as mistaken without any requirement that the matter
be referred to the SBA for COC consideration.
The protest is denied.
Comptroller General
of the United States