BNUMBER: B-280676
DATE: November 5, 1998
TITLE: Astro Quality Services, Inc., B-280676, November 5, 1998
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Matter of:Astro Quality Services, Inc.
File: B-280676
Date:November 5, 1998
Johnathan M. Bailey, Esq., Theodore M. Bailey, P.C., for the
protester.
Barbara Bear, Esq., Department of the Army, for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Request for upward correction after bid opening to add price for
replacement of kitchen cabinets and countertops was properly denied by
agency where, based on its mistaken interpretation of the solicitation
requirements, the low bidder intentionally did not include these items
in its bid.
2. Protest that solicitation contained latent ambiguity is denied
where, read as a whole, solicitation clearly required that bidders
provide the items at issue.
DECISION
Astro Quality Services, Inc. protests the determination of the
Department of the Army to deny Astro's request to correct an alleged
mistake in its bid under invitation for bids (IFB) No.
DACA63-97-B-0053.
We deny the protest.
The IFB, issued on July 16, 1997, was for the rehabilitation of
buildings 218 and 220 at the Brooks Air Force Base, San Antonio,
Texas. The required renovations, as specified in the IFB plans and
drawings, included wall coverings, lights, cabinets, countertops, door
refinishing and ceiling fans. Section 06410 of the IFB, entitled
custom casework, contained various specifications and requirements for
cabinets and countertops and stated in pertinent part, at 06410-3,
that:
Casework, including cabinets and counters, shall be flush overlay
design and shall be custom built, either at a mill or in-place in
the building. Casework shall be custom grade, and unless
otherwise specified, shall be built to the quality standards
specified in AWI-02 for cabinets and casework. Design shall be
as indicated on the drawings.
The drawings provided as part of the IFB contained numerous depictions
and notes pertaining to cabinet and countertop requirements, including
specifications calling for the removal/demolition of kitchen cabinets
and countertops. Drawing sequence No. 17 provides dimension and
construction details for the kitchen cabinets. Drawing sequence Nos.
9, 12, and 14 contain references to the design for new kitchen
cabinets and countertops.
Amendment No. 6, issued on August 21, among other things, deleted from
the IFB section 12390, entitled cabinets and countertops, which
contains specifications for prefabricated cabinets and countertops.
Neither amendment No. 6 nor any other amendment provided for any
change to the IFB plans and drawings with respect to kitchen cabinets
and countertops, nor made any change to section 06410.
The IFB called for the submission of only two lump sum entries, one
for "suite plan" renovations, the other for "studio plan" renovations,
plus a total bid entry consisting of the sum of these two. IFB
Amendment No. 1 at 00010-3. Eleven bids were received and opened as
scheduled on June 15, 1998. Astro submitted the low total bid of
$568,000. Subsequent to the bid opening Astro's President spoke with
the contract specialist and, upon learning the bid prices, expressed
concern that Astro's bid price was significantly below the other bid
prices submitted, and 22 percent below the independent government
estimate (IGE) of $725,386.41. Contracting Division June 17, 1998
Memo Requesting Comments.
Thereafter, by letter dated June 18, Astro requested the agency's
permission to correct its bid. Astro stated that it had understood
amendment No. 6 to mean that the requirement for new cabinets and
countertops had been eliminated from the solicitation, and that
therefore it mistakenly eliminated $103,946.15 from its bid price.
June 18, 1998 Astro Letter to Agency Requesting Correction at 2. In
support of its request for correction, Astro submitted an affidavit
from Astro's estimator and a computer disk with its estimating
spreadsheets. Astro contended that its worksheets established that it
"intended to include an amount for cabinets, but was misled by
Amendment 0006 into eliminating those costs from its bid." Id.
The contract specialist determined that the costs for kitchen counters
and countertops were in the official IGE and that amendment No. 6 had
not eliminated the requirement for new cabinets and countertops. The
agency determined that Astro's misinterpretation of amendment No. 6
was a judgment error, not subject to correction and denied Astro's
request to correct its bid. The agency also noted that even if Astro
had established the existence of a mistake that might have been
correctable, Astro's submissions did not establish what it actually
intended to bid for cabinets and countertops. In this regard, the
agency noted that while Astro requested an upward correction in its
bid of $103,946.15, its workpapers indicate that it deleted $93,100 as
a result of amendment No. 6. July 24, 1998 Agency Decision on Astro's
Request for Correction. Accordingly, the agency rejected Astro's bid
and made award to the next low bidder at $745,000.
Astro filed this protest with our Office, arguing that it is clear
from its workpapers that, prior to the issuance of amendment No. 6, it
intended to bid $93,100 in direct costs for countertops and cabinets.
Astro now asserts that when its normal mark-ups are applied to this
figure the total would be $139,946.15, and therefore seeks upward
correction in that amount. Protest at 3.
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). Workpapers, including records of computer-generated
software spreadsheets/worksheets, 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. RJS
Constructors, B-257457, Oct. 7, 1994, 94-2 CPD para. 130 at 3. Because
the contracting agency is vested with authority to correct mistakes,
and because the weight to be given evidence in support of an asserted
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. CRK-JVC/Shockley Joint Venture, B-265937,
Jan. 17, 1996, 96-1 CPD para. 85 at 5. Here, the record establishes that
the Army's decision not to permit correction of Astro's bid was
reasonable.
The agency determined that Astro's estimator made a business judgment,
based on his interpretation that amendment No. 6 deleted the
requirement for new cabinets and countertops from the solicitation.
Astro's bid spreadsheets for section 12390 contained $93,100 for
cabinets and countertops which had been deleted with the note "DELETE
PER ADDENDUM 6." Astro's spreadsheet had no prices under section
06410 custom casework, but contained the note "see section 12390."
Additionally, the agency determined that there was no indication in
Astro's spreadsheets that its bid ever included costs for the required
demolition of cabinets and countertops. The agency concluded that
Astro's worksheets simply reflect its decision not to provide new
cabinets and countertops that are actually required under the
solicitation. Astro's position is that while, as a result of
amendment No. 6, it did not intend to provide any new cabinets or
countertops in its bid, it should be allowed to correct its bid
because it is clear from its worksheets how much Astro originally
intended to bid for new countertops and cabinets.
Although it does appear that Astro relied on a mistaken interpretation
of amendment No. 6, it is also quite clear that the firm bid precisely
the amount it intended. The kinds of mistakes that may be corrected
under FAR sec. 14.407-3 do not include mistaken or erroneous
interpretations of the solicitation specifications. Where, as here, a
bidder discovers after bid opening that it based its bid on a mistaken
premise, the bidder may not recalculate its bid to arrive at a bid not
intended before bid opening. McGhee Constr., Inc., B-255863, Apr. 13,
1994, 94-1 CPD para. 254; American Dredging Co., Inc., B-229991.2, Sept.
15, 1988, 88-2 CPD para. 248 at 3. Accordingly, the agency reasonably
determined that it would be improper to permit bid correction here.[1]
The protester also argues that the solicitation contains a latent
ambiguity because it is subject to two interpretations, one which
requires new kitchen cabinets and one which does not.
An agency's solicitation specifications must be sufficiently definite
and free from ambiguity to permit competition on a common basis. An
ambiguity exists if specifications are subject to more than one
reasonable interpretation. Toxicology Testing Servs., Inc.,
B-219131.2, Oct. 28, 1985, 85-2 CPD para. 469 at 4. While it is not
necessary for the finding of an ambiguity that the interpretation of
the charging party be the most reasonable one, the party is,
nevertheless, required to show that its interpretation of the
requirement in issue is reasonable and susceptible of the
understanding it reached. Wheeler Bros., Inc.; Defense Logistics
Agency--Recon., B-214081.3, Apr. 4, 1985, 85-1 CPD para. 388 at 7-8. To
be reasonable, an interpretation must be consistent with the
solicitation, read as a whole. Captain Hook Trading Co., B-224013,
Nov. 17, 1986, 86-2 CPD para. 566 at 3. When a dispute exists as to the
actual meaning of a solicitation requirement, we will resolve the
dispute by reading the solicitation as a whole and in a manner that
gives effect to all provisions of the solicitation. Malkin Elecs.
Int'l., Ltd., B-228886, Dec. 14, 1987, 87-2 CPD para. 586 at 4.
Here, when reasonably read as a whole the solicitation was not, as the
protester contends, ambiguous as to the requirement for new kitchen
cabinets and countertops. While amendment No. 6 deleted section
12390, containing cabinet and countertop specifications, the IFB
continued to require bidders to perform the other work called for by
the specifications (including section 06410 custom casework, section
02050 demolition) and by the solicitation's drawings. Astro's
interpretation of amendment No. 6, as deleting the requirement for
kitchen cabinets and countertops, is unreasonable because it would
render meaningless significant portions of these other provisions
which set forth the solicitation requirements.
The protest is denied.
Comptroller General
of the United States
1. We also note that Astro's spreadsheets contain no figure for
demolition of the existing countertops and cabinets. Astro contends
in its comments that its original bid contained an unspecified amount
for the demolition of cabinet and countertops but that this amount was
deleted after amendment No. 6. Astro's September 8, 1998 Comments at
4. Even if Astro's original bid did contain some amount for the
demolition of cabinets and countertops, there is no way to determine
the exact amount that Astro bid from its spreadsheets. Further, the
amount of Astro's claimed mistake has ranged from $103,946.15 to
$139,946.15.
Astro, for the first time in its comments, also asserts that it
interpreted section 06410 of the IFB as applying solely to bathroom
cabinets, and section 12390 as applying solely to kitchen cabinets.
Protest Comments, September 8, 1998, at 3. Astro contends that after
the agency issued amendment No. 6, deleting section 12390 from the
IFB, it determined that the agency no longer required new kitchen
cabinets and countertops and therefore deleted $93,100 from its bid.
Id. This argument is without merit, and is at odds with Astro's
actions following receipt of amendment No. 6, when it submitted
worksheets in support of its mistake claim showing Astro's "$ 0" cost
entries for section 06410, accompanied by the notation "see section
12390," with the costs for section 12390 x'd out, accompanied by the
notation "delete per addendum 6." See Exhibit 3 (worksheets), sec.
06410, 12390, to June 18, 1998 Astro Letter, supra. The clear meaning
of these worksheet entries is that Astro did not differentiate between
the applicability of the two sections and, in any case, whatever its
understanding in this regard, in response to amendment No. 6, Astro
deleted from its bid the requirements under both sections.