TITLE:  Construction Technology Group, Inc., B-283857, January 18, 2000
BNUMBER:  B-283857
DATE:  January 18, 2000
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Construction Technology Group, Inc., B-283857, January 18, 2000

Decision

Matter of: Construction Technology Group, Inc.

File: B-283857

Date: January 18, 2000

Deborah R. Murphey, Esq., and Karl Dix, Jr., Esq., Smith, Currie & Hancock
for the protester.

Joseph J. Kokolakis for J. Kokolakis Contracting, Inc., an intervenor.

Larry E. Beall, Esq., and Joseph A. Gonzales, Esq., U.S. Army Corps of
Engineers, for the agency.

Sylvia Schatz, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Contracting agency reasonably permitted upward correction in low bid where
the offeror presented clear and convincing evidence of the mistake--the
failure of a computerized spreadsheet to include three line item prices in
subtotal and total prices--and the intended bid within a narrow range of
uncertainty, and the bid would remain low under any interpretation.

DECISION

Construction Technology Group, Inc. protests the agency's decision to permit
an upward correction of the low bid of J. Kokolakis Contracting, Inc. under
invitation for bids (IFB) No. DACAS01-99-B-0042, issued by the U.S. Army
Corps of Engineers for dining facility construction at MacDill Air Force
Base (AFB) in Florida.

We deny the protest.

The IFB contained a bid schedule that required bidders to submit prices on
eight items, including five base items and three option items. IFB at BS-1.
The requirements in the bid schedule were delineated in numerous detailed
specifications and plans/details as shown in the contract. Award was to be
made based on the low price for the base bid and all options. IFB at BS-2.
The Corps

received eight bids, including Construction Technology's and Kokolakis's.
Agency Report (AR), Tab 6, South Atlantic Acting Division Counsel's
Statement (SAADCS), at 1. Bids were opened September 8, 1999; Kokolakis's
bid was low at $4,242,500, while Construction Technology's was second low at
$4,693,000. Id.

By letter of September 20, Kokolakis notified the agency that it had
discovered a mistake in its bid resulting from the formula contained in the
computer-generated spreadsheet used to develop its bid. AR, Tab D, Letter
from Kokolakis to Mobile District Contracting Division 1 (Sept. 20, 1999).
Specifically, Kokolakis stated that three prices--one each for the base bid
and two option items--on a line designated "site work package" on its
spreadsheet were omitted from the column totals calculated on the
spreadsheet for the base and option items. Id. Kokolakis requested that it
be allowed to correct its bid in the amount of $330,500. In support of its
request, Kokolakis submitted an affidavit in which it explained how the
mistake was made and attached the following computer-generated documents:
(1) the original bid spreadsheet; (2) the revised bid spreadsheet,
reflecting the upward correction that Kokolakis was requesting; (3) the
formulas used in calculating its bid in its original bid spreadsheet; (4)
the application of the formulas used in calculating the bid in its revised
bid spreadsheet; and (5) Kokolakis's cost estimates for the labor and
materials included under the "site work package" line item on the
spreadsheet. AR, Tab D, Affidavit of Awardee, at 1-2, and Exhs. 1-5,
Spreadsheets of Awardee. The contracting officer reviewed this documentation
and concluded that the evidence was sufficient to support the firm's claim
of a mistake in the amount of $330,500. Upward correction thus was permitted
in that amount. AR, Tab 6, SAADCS, at 7. Award then was made to Kokolakis
for the base bid only on September 30, in the amount of $4,257,000. AR, Tab
2, Contracting Officer's Statement, at 2.

Construction Technology challenges the correction, maintaining that the
evidence furnished by Kokolakis is not sufficient to support the correction.
Protester's Comments at 1, 4.

A bidder seeking upward correction of its bid price prior to award must
submit clear and convincing evidence of the claimed mistake and the intended
price. Federal Acquisition Regulation (FAR) sect. 14.407-3(a). Workpapers,
including records of computer-generated software spreadsheets/worksheets
(hard copy printouts, computer disks, tapes or other software media), 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. H.A. Sack Co., Inc., B-278359, Jan. 20, 1998, 98-1 CPD para. 27 at 2.
Whether the evidence meets this standard is a question of fact, and we will
not question an agency's decision in this regard unless it lacks a
reasonable basis. Id. at 3.

The Corps reasonably determined that the evidence clearly established both
the existence of the alleged mistake and the amount of the intended bid, and
that correction therefore was warranted. First, as for the mistake,
Kokolakis's original spreadsheet shows that the prices for the "site work
package" line item were not included in the column totals. Specifically, on
the first page of the spreadsheet, adjacent to the term "site work package,"
are the lump sum prices of [deleted] in column five (general contractor
costs for the base item), [deleted] in column seven (construction of a north
parking lot under option 1), and [deleted] in column eight (construction of
a south parking lot in option 2). AR, Tab D, Exh. 1, Original Bid
Spreadsheet, at 1. All columns were subtotaled at the top of page two of the
spreadsheet; the subtotal for column five was [deleted], column seven
[deleted], and column eight [deleted]. Id. at 2. However, adding together
all of the specification line item prices on page one shows that the
subtotals for columns five, seven, and eight do not include the "site work
package" prices--that is, the subtotals are understated by the amount of the
three "site work package" prices on page one. Id. at 1-2. Kokolakis explains
that these prices were omitted from the spreadsheet subtotals (and,
ultimately, from the total) because Kokolakis mistakenly had inserted a
formula in the spreadsheet instructing the program to pick up the "site work
package" prices from the eighth line on the spreadsheet, rather than from
the seventh line, where those prices were inserted. AR, Tab 6, SAADCS, at 5,
and Tab D, Exh. 3, Formulas Used in Calculating Kokolakis's bid in its
Original Bid Spreadsheet, at 2. The program thus did not recognize the
prices on the seventh line, and did not add them into the subtotals or
total. AR, Tab 6, SAADCS, at 5. We find that the alleged mistake is clearly
evident from the spreadsheet, and the manner in which the mistake occurred
is clear from Kokolakis's explanation. The agency therefore reasonably
concluded that a mistake was made.

The documentation furnished also clearly established the intended bid; the
amount intended can readily be determined by adding the omitted "site work
package" prices to the page two subtotal prices for the base bid and first
two option items, and then applying the mark-ups shown on the spreadsheet.
In this regard, the omitted "site work package" prices [deleted] for the
base bid, [deleted] for the first option item, and [deleted] for the second
option item) total [deleted]. AR, Tab D, Exh. 1, Original Bid Spreadsheet,
at 1. After adding to this amount the mark-ups shown on the spreadsheet
(including profit [deleted] and bonding [deleted] for the base bid and
[deleted]-percent mark-ups for the option items), the omitted amount, as
determined by the contracting officer, totals [deleted]. AR, Tab B,
Contracting Officer's Statement Concerning Mistake in Bid, at 1. While it is
not clear why the agency's calculations resulted in an amount $420 higher
than the claimed mistake, this is a minor discrepancy that does not affect
the permissibility of the correction. The exact amount of the intended bid
need not be established, provided that there is clear and convincing
evidence that the amount of the intended bid would fall within a narrow
range of uncertainty and would remain low after correction. Maple Constr.
Co., Inc., B-270073, Feb. 6, 1996, 96-1 CPD para. 43 at 2. Such is the case here
given the $120,000 difference between Kokolakis's and the protester's bids.
Since the intended bid is clearly evidenced (within a narrow range of
uncertainty) by the documentation provided by Kokolakis, the agency
reasonably permitted the upward correction in Kokolakis's bid.

The protester argues that there are other discrepancies in Kokolakis's
spreadsheets that should preclude correction. Specifically, the protester
points to an error in the spreadsheet Kokolakis provided to show the
breakdown of prices that comprised the "site work package" prices; it
questions an amount of [deleted] designated for "ELEC," which it claims
should not appear on the spreadsheet, since Kokolakis explained it included
the electrical work under another line item in its bid. Protester's Comments
at 8; Protester's Supplemental Comments at 2. Construction Technology also
notes that many item prices, both on the spreadsheet for the "site work
package" line item and on the original spreadsheet, do not correspond to
those in a "write-in" column on the original spreadsheet; the protester
questions Kokolakis's explanation that this is due to its rounding of many
of the item prices. Protester's Comments at 8-10.

These alleged discrepancies identified by the protester do not preclude
correction. As indicated, the only mistake for which Kokolakis seeks
correction is the omission of the "site work package" prices from the
spreadsheet subtotals. As discussed, we find that the evidence presented
clearly shows precisely how the claimed mistake was made and the amount of
that mistake. The alleged discrepancies identified by the protester do not
relate to the omitted "site work package" prices clearly established on the
original spreadsheet, and would have no effect on the correction of the
mistake by adding those omitted amounts to the page two subtotals. Where
this is the case, we do not consider such additional discrepancies alleged
by a party challenging the requested correction to be relevant to the
permissibility of the correction. See Continental Heller Corp., B-230559,
June 14, 1988, 88-1 CPD para. 571
at 4-5; Western Alaska Contractors, B-220067, Jan. 22, 1986, 86-1 CPD para. 66
at 6-7.

In any case, we find that the alleged discrepancies are not discrepancies at
all. Our review of the "site work package" spreadsheet shows that the
[deleted] ELEC figure appearing on that spreadsheet is not included in the
total calculated for the spreadsheet items [deleted]. This being the case,
Kokolakis's explanation that the [deleted] figure was included on the "site
work package" spreadsheet solely for informational purposes--and that the
[deleted] was included in its [deleted] price under the "Electrical" line
item on page two of the original spreadsheet--is credible. Letter from
Kokolakis to General Accounting Office (GAO) 1-2; (Jan. 6, 2000); AR, Tab D,
Exh. 5, Spreadsheet of Kokolakis's Cost Estimate for Site Work Package
Spreadsheet, at 1. Similarly, we find that Kokolakis's explanation regarding
the differences in the "write-in" column prices on the original
spreadsheet--that the differences are attributable to rounding--is credible.
Letter from Kokolakis to GAO 1 (Jan. 6, 2000). The numbers generally were
rounded to a $500 or $1,000 increment, and the total effect of the rounding
was to reduce the total bid by only approximately $5,000. AR, Tab D, Exh. 2,
Revised Bid Spreadsheet, at 1. This amount is not of a magnitude that would
call into question the credibility of the original spreadsheet, which we
have found supports the correction. Continental Heller Corp., supra; Western
Alaska Contractors, supra. [1]

The protester raises numerous additional arguments challenging the adequacy
of the documentation presented by Kokolakis, all of which we find are
without merit. For example, Construction Technology maintains that the
original spreadsheet and the spreadsheet for the "site work package" line
item are insufficient support for the correction because they are undated
and unsigned. Protester's Comments at 5, 8. However, Kokolakis's
representative certified as to the authenticity of the spreadsheets, and
since the spreadsheets otherwise appear to be in good order, the fact that
they are undated or unsigned does not preclude their consideration in
correcting a bid. See Hampton Roads Mechanical Contractors, Inc., B-257908,
Nov. 23, 1994, 94-2 CPD para. 201 at 4. As another example, the protester
maintains that Kokolakis's affidavit submitted with its bid correction
request is defective under Florida law. Protester's Comments at 5. However,
even if Kokolakis's affidavit were somehow defective, this defect would not
preclude correction since Kokolakis need only submit a statement, not a
sworn statement, in making its mistake claim. See FAR sect. 14.407-3(g)(2)
(stating that a mistake claim "must be supported by statements (sworn
statements, if possible) and shall include all pertinent evidence"). The
protester also maintains that Kokolakis improperly failed to submit for
review all of its subcontractor quotes and its backup and work papers for
all bid items. Protester's Comments at 5-6. However, this information is
entirely irrelevant with respect to the question of whether there is here
clear and convincing evidence of the claimed mistake. We conclude that the
agency reasonably determined that the evidence furnished by Kokolakis
supports the requested upward correction of its bid.

The protest is denied.

The Comptroller General
of the United States

Notes

1. The protester also asserts that, had the difference in the bid prices
been greater or smaller, Kokolakis could have tailored its mistake claim by
asserting mistakes in different item prices. However, the possibility of
fraud on the part of a firm claiming a mistake is not the same as evidence
of such fraud. Here, the claimed mistake is supported by the evidence
Kokolakis provided to the agency, and there is no evidence of fraud by
Kokolakis.