H. Angelo & Company, Inc., B-281228.2, 12, 1999

TITLE:  H. Angelo & Company, Inc., B-281228.2, 12, 1999
BNUMBER:  B-281228.2
DATE:  12, 1999
**********************************************************************
H. Angelo & Company, Inc., B-281228.2, April 12, 1999

Decision

Matter of: H. Angelo & Company, Inc.

File: B-281228.2

Date: April 12, 1999

Michael C. Spring, Esq., Law Offices of David L. Swimmer, for the protester.

Maj. Susan D. Tigner, Department of the Army, for the agency.

Katherine I. Riback, Esq., and James Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Mistake in bid may not be corrected where the correction would result in the
bid’s displacement of two lower bids and the amount of intended bid
cannot be ascertained from the bid and solicitation.

DECISION

H. Angelo & Company, Inc. protests an award to Robert Hall Associates, Inc.
under invitation for bids (IFB) No. DABT10-98-B-0023, issued by the
Department of the Army for the installation of cross connection back flow
prevention devices at Fort Benning, Georgia. Angelo argues that the agency
failed to allow it to correct its mistake in bid so that its bid was not
considered to be low.

We deny the protest.

The IFB anticipated the award of a fixed-price indefinite-quantity contract.
IFB sect. L.10. The IFB bid schedule required bidders to insert unit and total
prices for

574 individual contract line items (CLIN) in the base period (CLINs
0001-0185), option year one (CLINs 1001-1185), and option year two (CLINs
2001-2204). Each CLIN included a narrative of the item and its estimated
quantity. The bid schedule also required bidders to insert an "estimated
aggregate amount" for the base period and the two option periods, which
would represent the total of all of the CLINs in each period, and the "total
estimate aggregate" of the base and option periods. The bid schedule
instructions required that bidders include unit prices for each CLIN and
stated that in the event of a discrepancy between a unit price and an
extended price the unit price would be considered to be the bid. IFB at B-1.
The IFB provided that bids would be evaluated for award by adding the prices
for all options to the price for the base period. IFB sect. L.21.

The agency initially concluded that Angelo was the apparent low bidder based
solely on the total estimated aggregate amount of $3,053,607 stated in its
bid. However, when the agency added the individual CLIN prices, it
discovered that the sum of Angelo's individual CLINs was $4,791,435, making
it the third low bid. The agency determined that Robert Hall Associates,
Inc. was the low bidder with a bid amount of $3,141,707.20, and award was
made to that firm. Agency Legal Memorandum at 2-3.

Angelo contends that the agency’s determination failed to account for
an obvious mistake in its bid that, if corrected, would result in its bid
being low. Angelo explains that its prices for CLIN 1001 of option year one
and CLIN 2001 of option year two were disproportionately high because they
were in fact the total prices for performing all the work in the base year
and in option year one, respectively. Angelo asserts that the solicitation
did not contain a line for a total aggregate amount immediately following
the CLINs in the base period and option period one, which misled it into
inserting in the next CLINs appearing in the bid schedule the aggregate
figures for the preceding years’ work instead of the work actually
described in CLINs 1001 and 2001. Protest at 3. Specifically Angelo states
that it inserted the price of $1,080,095 for CLIN 1001 (the same amount as
its estimated aggregate amount for the base period), although its intended
amount for this line item (installing a back flow prevention device in
building 2505) was $2,500. Similarly, Angelo contends that it inserted the
price of $757,983 in CLIN 2001 (the same amount as its estimated aggregate
amount for option period one), although its intended amount for this line
item (installing a back flow device in building 3306) was $9,000. Angelo
states that if the obviously erroneous prices included for these CLINs were
disregarded and the inadvertently omitted prices for this work, totaling
$11,500, had been included, its bid would have been low. Angelo also asserts
that it will perform all of the required work, including that required in
buildings 2505 and 3306 for the prices set forth in the bid schedule,
excluding the prices set out at CLINs 1001 and 2001, and that this will
result in the work being performed in buildings 2505 and 3306 at no cost to
the government. Protest at 4.

The agency denied Angelo’s request for correction of its bid on the
grounds that Angelo could not adequately prove its intended bid because,
although there was evidence of a mistake, there was no evidence of
Angelo’s intended bid price ascertainable from the face of the bid. We
agree.

The Federal Acquisition Regulation (FAR) sect. 14.407 allows for correction of
mistakes in bids under specified circumstances. Where correction of a bid
would result in displacing one or more lower bids, it may not be allowed
unless the existence of the mistake and the bid actually intended are
ascertainable substantially from the invitation and the bid itself. FAR sect.
14.407-3(a), Grunley Constr. Co., Inc., B-266344, Feb. 16, 1996, 96-1 CPD para.
100 at 3.

We first note that CLINs 1001 and 2001 unambiguously call for prices for the
installation of back flow prevention devices in buildings 2505 and 3306,
respectively, and do not suggest that they were intended to be totals for
the base year and option year one CLINs.[1]

Also, as noted by the agency, the mistake in Angelo’s bid is not
capable of correction because it is impossible to ascertain from the bid and
solicitation the bid amounts intended for CLINs 1001 and 2001, and thus the
total bid. For example, Angelo’s intended bids for these CLINs cannot
be determined by adding up all of the other CLIN prices for option year one
and option year two (excluding the figures that Angelo inserted for CLINs
1001 and 2001, respectively) and then subtracting this total from Angelo's
estimated aggregate amount bid for option year one because the sum of these
CLINs equals the figure that Angelo inserted on the top of the bid schedule
as the estimated aggregate amount for option year one and option year
two.[2]

Angelo’s offer to perform all of the required work, including that
required in buildings 2505 and 3306, for the prices set forth in the bid
schedule (excluding the prices set out at CLINs 1001 and 2001, which it will
perform at no cost to the government) does not allow for the acceptance of
its bid, since a bidder is not permitted to waive a claim of error to remain
the low bidder. Dynalectric Co., B-265762.2, Feb. 15, 1996, 96-1 CPD

para. 97 at 4. To permit a bidder to do so would be to allow the bidder the
impermissible option of either affirming its low bid or withdrawing it,
depending upon which appeared to be in its best interest. William G. Tadlock
Constr., B-251996,

May 13, 1993, 93-1 CPD para. 382 at 4 n.1. Permitting such a choice would be
inconsistent with the integrity of the competitive sealed-bidding system and
would be prejudicial to other bidders. Id.

The protest is denied.

Comptroller General

Notes

1. Angelo also does not dispute that these CLINs represent material items of
work.

2. That is, under this calculation a price of $0 for these CLINs is
indicated.

of the United States