TITLE:  Metric Constructors, Inc., B-285854, October 17, 2000
BNUMBER:  B-285854
DATE:  October 17, 2000
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Metric Constructors, Inc., B-285854, October 17, 2000

Decision

Matter of: Metric Constructors, Inc.

File: B-285854

Date: October 17, 2000

Douglas L. Patin, Esq., and Claire E. Kresse, Esq., Spriggs & Hollingsworth,
for the protester.

D. Lee Roberts, Jr., Esq., Weinberg, Wheeler, Hudgins, Gunn & Dial, for
Dawson Building Contractors, Inc., an intervenor.

Carlton A. Arnold, Esq., Department of the Army, for the agency.

Jacqueline Maeder, Esq. and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest of contracting agency's decision to decline to allow upward price
correction of allegedly mistaken low bid is denied where agency reasonably
concluded that the worksheets and other supporting material submitted by
protester do not provide clear and convincing evidence of the protester's
intended bid.

DECISION

Metric Constructors, Inc. protests the U.S. Army Corps of Engineers' denial
of Metric's request to correct a mistake in its low bid under invitation for
bids (IFB) No. DACA27-00-B-0002, for the construction of an Army Reserve
Center at Fort Gillem, Atlanta, Georgia. Metric contends that the agency's
decision was unreasonable.

We deny the protest.

The IFB required bidders to submit lump-sum price entries for 14 base bid
contract line item numbers (CLINs) and for 5 option CLINs. The base bid
CLINs were for the construction of several "primary" buildings, including a
training building, unit storage building, medical supply warehouse, parts
warehouse and support facility and various miscellaneous tasks such as the
installation of metal lockers, shelving and kitchen equipment. The option
CLINs included a landscaping upgrade, construction of an unheated storage
building and a concrete planter, and the installation of ornamental fencing
and an irrigation system. IFB, Bid Schedule,
at 3-9.

The Army received seven bids at the May 11 bid opening. Metric submitted the
apparent low bid of $22,762,901; Dawson Building Contractors, Inc. submitted
the second low bid of $25,836,000. Agency Report exh. 2, Abstract of Offers,
at 1. By letter dated May 19, Metric advised the Army that in reviewing its
bid after bid opening it had discovered a mistake. Protest exh. 1, Request
to Correct Bid, at 1. Specifically, Metric stated that it had inadvertently
omitted an electrical subcontractor's bid for CLIN 0006, support facility
site work, from its base bid. Id. Metric explained that, in preparing its
bid, subcontractors' quotations were transcribed onto a "bid card" and
prices were "called out" from the bid card, entered into the computer and
incorporated into a computer-generated spreadsheet. Agency Report exh. 5B,
Memorandum on Alleged Mistake in Bid, at 2. Metric alleged that a mistake
occurred because an employee misunderstood certain directions and mistakenly
wrote the subcontractor's quote for one base bid item (CLIN 0006) on the
back of the bid card, resulting in the unintentional omission of this quote
from the base price. To support its mistake claim, Metric submitted its
computer-generated estimate and spreadsheet printouts, a copy of its "bid
card," and its subcontractor's quotation sheet with price entries that
Metric's employee made based on a telephone call with the subcontractor. [1]
Metric also submitted three sworn affidavits from two of the firm's senior
project estimators and a senior project engineer. [2] The three employees
attested that they had prepared the computer worksheets and the bid and
explained the mistake and the intended bid.

Metric's original undated computer sheets, titled "Recap Sheet," consist of
three pages. [3] The first one and one-half pages contain 17 columns and 76
line entries. Protest exh. 3, Recap Sheet, at 1-2. The first column, titled
"Item," lists 76 job elements under the solicitation. For example, line item
25 lists "Masonry," line item 50 lists "Painting and Wall Coverings," and
line item 76 lists "Electrical." Id. Columns 2 through 5 provide Metric's
own "dry-run" price estimates, including labor, material, "other" and totals
for each of the 76 itemized work requirements. Column 6 identifies the
subcontractor or supplier whose low price was used in computing Metric's
actual bid and column 7 lists the subcontractors' or suppliers' prices for
each item. Columns 12 through 16 provide spaces for each of the 5 option
prices. [4] Id. As relevant here, item 76 listed "Electrical" work in column
1, provided the electrical subcontractor's name in column 6 and listed the
subcontractor's price of $2,184,301 for electrical work in column 7. [5] Id.
at 2.

Subtotal prices were provided for the "dry run" column, the
subcontractor/supplier price column, and for the five option columns. A
"general conditions" charge of $1,264,783 was added to the dry run and
subcontractor/supplier prices subtotals
and a "manager's judgment" of [DELETED] was deducted from the
subcontractor/supplier subtotal only. Id. No formulas or explanations were
provided for either of these two additions and deductions. Additional
charges, including "insurance-builder's risk," "owner's protection,"
"general liability and vehicle," "umbrella," "building permit,"
"contingency," "profit" and "general contractor's bond," were listed under
the columns on page 2 of the worksheet.
The formulas for computing profit and insurance costs, including builder's
risk, owner's protection, general liability and vehicle and umbrella and the
amounts for each of these items were also provided on page 2 of the
worksheets. Id. All of these figures were added to arrive at a "total cost,"
under both the dry run and subcontractor/supplier amount columns.

Page 3 of the original computer worksheet listed the work requirements and
price for each of the actual IFB requirements, that is, the 14 base CLINs
and the 5 option CLINs, with totals for the base bid and the base bid with
options. There is no explanation on the worksheets, nor has the protester
provided any other explanation, of how the 76 items on the first two pages
were allocated or assigned to the 14 CLINs under the base bid. Id. at 3. The
total base bid price of $22,144,422 entered on page 3 is the same as the
"total cost" listed under the subcontractors' amount column on page 2.

In his affidavit, the project estimator who received bids from
subcontractors for the electrical work explains that he spoke with a
representative of the subcontractor who orally recited the subcontractor's
prices for 7 CLINs, including $754,990 for CLIN 0006, the support facility
site work, and $21,321 for CLIN 0016, the unheated storage building option.
Protest exh. 1, Request to Correct Bid, at 19. He states that pursuant to
the senior project engineer's directions, he did not include these two items
as part of the base bid. Id. Based on prices of $1,405,875, $257,574,
$107,593, $304,079, $7,355 for CLINs 0001 through 0005, respectively, and
including the bond costs which Metric's project estimator added to the
subcontractor's subtotal, the project estimator calculated a base bid of
$2,184,430 for the electrical work. Id.

In her affidavit, the senior project engineer confirmed that she directed
the project estimator to subtract CLINs 0006 and 0016 from the
subcontractor's bid because she "understood" that the senior estimator
wanted the electrical bid broken down into a base bid, a bid for CLIN 0006
and a bid for the option item CLIN 0016. Id. at 13.
The project engineer recalculated the subcontractor's base bid, correcting a
mathematical error in the project estimator's calculations to reach a base
electrical price of $2,184,301. Id. She states that she transcribed this
base bid total onto the front of a bid card for electrical work and
transcribed the $762,540 and $21,534 as the electrical work totals for CLIN
0006, support facility site work, and CLIN 0016, storage building option,
respectively, onto the back of the bid card. She gave the bid card to the
bid team so the electrical prices could be added to Metric's bid. Id.

The senior estimator states in his affidavit that, shortly before bid
opening, he was working at the computer to compute Metric's bid. Id. at 3.
He asked bid team members to "call out" prices from the bid cards so he
could enter them onto the computer spreadsheet. For item 76, the project
estimator called out the $2,184,301 base price from the front of the
electrical bid card and the $21,534 option price for CLIN 0016 from the back
of the bid card. Id. The senior estimator explains that he entered these two
figures into the computer on the spreadsheet. After bid opening, the senior
estimator states that Metric discovered that it had erroneously failed to
include the electric subcontractor's bid price for CLIN 0006, support
facility site work, in its base bid. Id. This price was listed on the back
of the electrical subcontractor's bid card and had not been "called out" and
entered onto the computer worksheet. Id. The project estimator explained
that the project engineer "thought that I wanted the electric site work
broken out separately from the base bid amount. I did not want to separate
it from the base bid, but this miscommunication between us lead to the base
bid amount shown on the electrical card omitting the Support Facility Site
Work from the base bid figure read to me by [the project estimator] just
before the bid went in." Id.

After Metric discovered the mistake, the protester prepared a corrected
computer spreadsheet, referred to as an "Error Recap Sheet" to show Metric's
intended bid.

Id. at 4. The Error Recap Sheet follows the same format as outlined above
for the Recap Sheet. The senior estimator explains that the correct
electrical base bid of $2,946,841 (incorporating the omitted $762,540 for
the electrical work plus the contractor's bond for the support facility)
should have been entered on the computer worksheet for
subcontractor/supplier prices at line 76. The senior estimator states that
the computer would have totaled the prices, computed the insurance and
profit based on the same percentage markups used elsewhere and deducted the
[DELETED] manager's judgment. Without any further explanation, the senior
estimator states that in correcting the bid, "[t]he Manager's Judgment
figure would not have changed." Id. The senior estimator does not discuss
the $1,264,783 "general conditions" figure which was also added to the
subtotal prices on both
the Recap and the Error Recap Sheets.

The senior estimator also explains that, because Metric was preparing its
bid so close to the time set for bid opening, he had "closed out all of the
item prices except for Item number 1, Training Building, at approximately
2:40 p.m." on the computer. Id. Consequently, when the electrical
subcontractor's price came in and was entered on line item 76 of the
computer spreadsheet, the computer would have automatically calculated the
difference between the subcontractor's bid and Metric's dry run estimates
and added this difference to or subtracted this difference from the only
item total which remained open. Thus, the difference between the
subcontractor's quote and Metric's dry-run estimate would have been added to
Metric's price for CLIN 0001, Training Building and, in fact, Metric's Error
Recap sheet shows no change in the price for CLIN 0006 but an increase of
$793,619 in the price for CLIN 0001. The protester explains that with this
correction, Metric's corrected total base bid is $22,938,041 and its
corrected total bid with options is $23,556,520, an amount still
substantially below the second low bid of $25,836,000. Id.

The contracting officer determined not to allow Metric to modify its bid and
that
the firm could either perform the contract at the originally submitted price
or be permitted to withdraw its bid. The agency found that the record did
"not demonstrate, with any degree of confidence, Metric's intended bid."
Agency Report exh. 5B, Memo on Alleged Mistake in Bid, at 5. The contracting
officer also determined that Metric's omission of a subcontractor's
quotation for electrical site work "was not caused by accident or
inadvertence of the protester, but instead was a conscious, deliberate,
knowing and intentional business choice, on its part, to omit this item from
its base bid." Supplemental Agency Report at 1. The agency based this
determination on its reading of the three affidavits submitted by Metric
personnel which, the agency states, show "a deliberate and intentional
decision to delete this site work from the base bid." Id. at 3. Because
Metric's omission was intentional, the Army concluded that its bid could not
be corrected since correction would allow Metric to recalculate its bid to
arrive at a bid never intended before bid opening. Id. at 4.

An agency may permit correction of a bid where clear and convincing evidence
establishes both the existence of a mistake and the bid actually intended,
so long as the correction would not result in displacing one or more lower
bids. Federal Acquisition Regulation (FAR) sect. 14.407-3(A); Reliable
Mechanical, Inc., B-282874.2, Sept. 13, 1999, 99-2 CPD para. 52 at 2; Holmes
Mechanical, Inc., B-281417, Jan. 13, 1999, 99-1 CPD para. 6 at 2. A request to
correct a bid must be supported by statements and shall include all
pertinent evidence, including original worksheets and other data used to
prepare the bid, subcontractors' quotations, if any, published price lists,
and any other evidence that establishes the existence of the error, the
manner in which it occurred, and the bid actually intended. FAR sect.
14.407-3(G)(2). Whether the evidence meets the clear and convincing standard
is a question of fact and we will not question an agency's decision based on
this evidence unless it lacks a reasonable basis. J. Schouten Constr., Inc.,
B-256710, June 6, 1994, 94-1 CPD para. 353 at 3.

We have reviewed the evidence submitted by Metric in support of its claim,
as well as the agency's contemporaneous and post-protest rationale for
denying the claim.

While we are not certain that there was an adequate basis for the agency's
conclusion that the omission of the electrical site work for the base bid
was intentional and represented a deliberate judgment on Metric's part, we
need not resolve that question, because we agree with the agency that the
record does not provide clear and convincing evidence of the intended bid.

We assume, for purposes of our analysis here, that Metric inadvertently
omitted part of one subcontractor's quote in preparing its bid: the senior
project engineer misunderstood the directions from the senior estimator and
as a result deducted the electrical subcontractor's $754,990 quote for CLIN
0006, support facility site work, from the subcontractor's base bid.
Metric's submissions suggest one possible computation of the allegedly
intended bid price by adding the omitted amount, plus Metric's standard
bond, to Metric's base bid subtotal, adding the same fixed amount for
general conditions, deducting the same fixed amount for manager's judgment,
and applying the same percentages for profit and insurance. However, the
agency reasonably concluded that this does not sufficiently establish
Metric's intended bid, because the evidentiary documents and the two
computer-generated worksheets present conflicts and uncertainties which
cannot be resolved to satisfy the clear and convincing standard.

First, as the agency noted, the bid documents do not reveal Metric's
"pricing methodology or otherwise represent a pattern of evidence to explain
how the bidder calculated the entries. . . ." Agency Report at 3.
Specifically, the record, including the computer-generated worksheets, does
not show any clear formula or procedure for integrating the 76 items from
the first 2 pages of the worksheets into the 14 base bid CLINs contained on
both page 3 of the worksheet and the bid schedule. Metric provides no
explanation in its affidavits or in any of its submissions of how it
calculated its price for each of the 14 separate CLINs on its bid schedule
using the
76 items. Thus, it is impossible to isolate the items that comprise Metric's
bid for CLIN 0006 and determine whether Metric actually omitted the price
for electrical work under this CLIN. Indeed, all that can be done, based on
the information provided, is add what Metric represents as its omitted price
to the line item price, with no evidence concerning what is already included
in the underlying line item price. As the agency found, this gap suggests
that Metric either failed to provide all its worksheets or has failed to
adequately explain the computation of its bid.

Second, the protester provides no explanation or support for the [DELETED]
manager's judgment deduction on page 2 of the computer-generated worksheets.
[6]
As noted above, Metric deducted [DELETED] as a "manager's judgment" item
from the new subtotal, but has not provided any explanation of the basis of
this item and does not show its calculations for arriving at this figure.
Presumably, the manager's judgment figure represents the estimator's
judgment regarding how much Metric needed to reduce its total bid price to
make it more competitive. Because Metric offers no description or
explanation of how this figure was arrived at, there is no basis to conclude
that it would remain the same with the bid correction, which would have
substantially increased the total bid price. The senior estimator simply
posits that the [DELETED] manager's judgment figure would not change, even
after adding the approximately $800,000 omitted from the electrical work in
CLIN 0006, without any rationale as to why an almost $1 million upward
revision would not affect this figure, and the protester never provided any
information which supports the reasonableness of the assertion.

In view of the above, we find that the agency reasonably concluded that
Metric did not present clear and convincing evidence of its intended bid and
properly denied Metric's request for upward correction.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. Metric submitted copies of its original computer-generated worksheets and
corrected worksheets.

2. For ease of reference, one of the senior project estimators will be
referred to in this decision as the senior estimator and the other as the
project estimator.

3. The Recap Sheet includes a "run" date of May 11. The protester explains
that it did not print the worksheet before bid opening. Rather, in preparing
Metric's bid, its senior estimator worked from the computer. Once Metric
discovered the error in its bid, it printed out the worksheet and the
computer program automatically inserted the "run" date at the top of the
printout.

4. Column 17 was labeled "option 6" and was unused.

5. The electrical subcontractor's price included work related to 6 CLINs in
the base bid (CLINs 0001 through 0006, with CLIN 0001 being the training
facility and CLIN 0006 the support facility site work), and CLIN 0016, which
was the unheated storage building option. Protest exh. 1, Request to Correct
Bid, at 7.

6. As noted above, Metric also added a $1,264,783 "general conditions"
charge to its price. The protester never specifies what is included in this
charge or explains how this figure was calculated. Moreover, Metric does not
explain whether this figure would increase or decrease if Metric performed
the work itself versus having subcontractors perform the work.