TITLE: Cooper Construction, Inc., B-285880, September 18, 2000
BNUMBER: B-285880
DATE: September 18, 2000
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Cooper Construction, Inc., B-285880, September 18, 2000
Decision
Matter of: Cooper Construction, Inc.
File: B-285880
Date: September 18, 2000
Lawrence J. Sklute, Esq., Sklute & Associates, for the protester.
Christine S. Trafford, Esq., and Joseph J. Summerill, Esq., Department of
Justice, Federal Bureau of Prisons, for the agency.
Tania Calhoun, Esq., and Christine S. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that contracting agency improperly denied request for bid correction
is sustained where the worksheets submitted by the low bidder to support the
claimed mistake in bid establish the existence of the mistake and the
intended bid by clear and convincing evidence, and where the affidavit
submitted along with the claim is entirely consistent with the worksheets.
DECISION
Cooper Construction, Inc., protests the decision by the Department of
Justice, Federal Bureau of Prisons, to deny its request to correct a mistake
in its low bid under invitation for bids (IFB) No. 50703-4053, issued for
demolition and the construction of a new accessible stair and elevator
corridor at the Federal Correctional Institution in El Reno, Oklahoma.
Cooper contends that the agency's decision was unreasonable.
We sustain the protest.
Bidders were required to submit a single lump-sum bid to perform the
solicited work. The details of that work were set forth in narrative
specifications and a set of drawings. IFB attach. II, III. On May 19, 2000,
Cooper submitted the apparent low bid of $444,000. The remaining two bids
were for $594,000 and $614,000.
In preparing to award the contract to Cooper, the contracting officer asked
the firm to cure several minor omissions in its bid by June 6. [1] The day
before that deadline, Cooper verbally notified the contracting officer that
the firm had made a mistake in its bid. Pursuant to the contracting
officer's instruction, later that same day Cooper submitted a written claim
of mistake in bid accompanied by the firm's handwritten worksheets and a
sworn affidavit from the firm's president. Cooper's president attested that
he had prepared the worksheets and the bid, and that the worksheets existed
prior to bid opening and were the original and only worksheets used to
prepare the bid.
Cooper's undated worksheets consist of 12 pages of yellow lined paper with
handwritten, penciled entries. Ten of these pages are "breakout" pages that
itemize and price specific work to be performed under the contract. Each of
these pages is numbered sequentially one through ten and, with one
exception, has a heading that corresponds with an IFB drawing number. [2]
The itemized work on each breakout page corresponds with the work
represented on the relevant IFB drawing. Next to each item on each breakout
sheet is a figure generally followed by the letter "k," presumably shorthand
for "thousand." Each breakout page totals all of the itemized figures on the
page to arrive at a sum. Most of the breakout pages accomplish this by
transferring each itemized figure into a column in the left margin of the
page and totaling the column at the bottom of the page. This total is then
circled.
The eleventh page of the worksheets carries forward the headings and totals
from each breakout page and adds them together to arrive at the figure of
$377,000. In his affidavit, Cooper's president refers to this page of the
worksheets as the summary page. The twelfth page of the worksheets carries
forward the figure "377" from the summary page and labels that figure as the
base bid. The worksheet shows that the base bid amount was multiplied by a
specified percentage for profit. To the resulting product, Cooper added a
specified fixed amount for overhead and a specified fixed amount for delays
and loss of work. The resulting sum, labeled "Bid," is $444,000, the precise
amount of Cooper's bid.
In his affidavit, Cooper's president stated that the base bid amount of
$377,000 was incorrect because it included an incorrect total carried over
from one of the breakout pages. On that breakout page, he misaligned some
dollar amounts in the summary column, resulting in an incorrect sum. This
incorrect sum was carried over to the summary page, resulting in an
incorrect base bid, and this incorrect base bid was used to calculate the
erroneous final bid price.
The breakout page at issue is the second of three breakout pages associated
with IFB Drawing A1. The seven items on the page are associated with work
described in sections two and four of that drawing. As with all of the
breakout sheets, next to each item on the page is a figure and the letter
"k."
The left margin of the page contains the following column of numbers:
80
15
5
30
--------
130
13
3
--------
29K
The first four figures in the column correspond with those next to the first
four items on the page. All of these items concern work associated with the
elevator. The fifth figure in the column, 130, is the correct sum of the
first four figures but is clearly misaligned. The sixth figure in the column
(13) is the sum of the figures next to the fifth and sixth items on the page
(8 and 5), both of which concern work associated with the second floor of
the project. [3] The seventh figure in the column (3) corresponds with that
next to the seventh item on the page. The final figure in the column is a
short-hand version of the sum of the misaligned figures, a circled "29K."
Cooper's president correctly stated that, if the figures in the column are
properly aligned, the correct total for this breakout page is $146,000 and
not $29,000. If the correct total is substituted for the incorrect total on
the summary page, the correct base bid amount is $494,000. Applying the same
percentage for profit, the same fixed amount for overhead, and the same
fixed amount for delays and loss of work as used in the worksheets, Cooper's
president stated that the bid should be increased from $444,000 to $573,400,
an amount still below the second low bid of $594,000.
The contracting officer determined that clear and convincing evidence did
not exist to allow Cooper to modify its bid and that the firm should perform
the contract at the originally submitted price or be permitted to withdraw
its bid. Agency counsel concurred with this decision. The determination that
documents this decision contains no supporting rationale, but appears to
emphasize the fact that the worksheets were undated.
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. FAR sect. 14.407-3(a); Reliable Mechanical, Inc., B-282847.2, 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 Cooper in support
of its claim, as well as the agency's contemporaneous and post-protest
rationale for denying the claim, and conclude that the agency's decision was
unreasonable.
The critical piece of evidence submitted by Cooper in support of its claim
is its worksheets. This Office has held that, as long as the bid remains low
after correction, worksheets may constitute clear and convincing evidence if
they are in good order and indicate the intended bid price, and there is no
contravening evidence. See, e.g., Reliable Mechanical, Inc., supra; J.
Schouten Constr., Inc., supra. We are unpersuaded by the agency's arguments
that Cooper's worksheets are not in good order.
The Bureau of Prisons contends that the handwritten worksheets make it
difficult to locate the alleged error or to decipher the estimates and
materials contained within the worksheets, and that the figures were totaled
in the margin "haphazardly."
The fact that the worksheets are handwritten is not dispositive. The FAR
does not require that worksheets be prepared in any particular manner, and
we have frequently upheld agency decisions to allow correction of mistakes
in bids based on handwritten worksheets. See, e.g., Hampton Roads Mechanical
Contractors, Inc.,
B-257908, Nov. 23, 1994, 94-2 CPD para. 201 at 4; Fisherman's Boat Shop, Inc.,
B-252560, July 9, 1993, 93-2 CPD para. 11 at 3-4. The key consideration is
whether or not the worksheets are clear and convincing evidence of the
mistake and the intended bid. [4] Holmes Mechanical, Inc., supra, at 4.
Here, this Office had no difficulty locating the error or deciphering the
estimates even without reference to Cooper's explanatory affidavit. First,
the relationships between the breakout sheets and the IFB's drawings are
clear, and each breakout sheet is internally consistent and easily
understood. The figures in the column at issue are "haphazard" only to the
extent that they are misaligned; while the figures are not as neatly written
as they might be, each figure can be easily traced, in a logical order, from
the line items on the page. Second, the worksheets' summary page clearly
tracks the breakout pages in a logical, consistent order. Third, the formula
used to load the base bid and arrive at the final bid price is clearly
delineated and consistent with the bid itself. Unlike in cases cited by the
agency in support of its position, Asbestos Control Management, Inc.,
B-279521, June 23, 1998, 98-1 CPD para. 169 and Pueblo Enters., Inc., B-278279,
Jan. 14, 1998, 98-1 CPD para. 15, there are no internal discrepancies within the
worksheets preventing ascertainment of the mistake and the intended bid.
Citing the fact that the worksheets are undated, the agency argues that
there is no objective evidence substantiating when and how the undated
worksheets were prepared or that they were actually used by Cooper in
preparing its bid.
However, there is no requirement that worksheets be dated, Tri-State
Consultants,
B-250700, Dec. 22, 1992, 92-2 CPD para. 433 at 3; Fortec Constructors, B-203627,
Feb. 16, 1982, 82-1 CPD para. 132 at 4, and the fact that these worksheets are
undated does not demonstrate that they were not prepared prior to bid
opening or not used to prepare the bid. Aleutian Constructors, a Joint
Venture, B-253276, Sept. 8, 1993,
93-2 CPD para. 147 at 3 n.2.
In his affidavit, Cooper's president represented that he prepared the
worksheets prior to bid opening and used them to prepare the bid. An agency
may properly rely upon a sworn statement as evidence supporting a claimed
mistake in bid.
FAR sect. 14.407-3(g)(2); Michaels Constr. Co., B-257764, 94-2 CPD para. 176 at 3;
Seaward Servs., Inc., B-250685, Feb. 16, 1993, 93-1 CPD para. 141 at 3. Since
Cooper's president has sworn to the authenticity of the worksheets, and
there is no contravening evidence, the fact that they are undated does not
preclude their consideration in correcting a bid. Hampton Roads Mechanical
Contractors, Inc., supra, at 4.
Citing our decision in Circle, Inc., B-279896, July 29, 1998, 98-2 CPD para. 67
at 5, the agency asserts that it may reasonably refuse to accept
uncorroborated, self-serving statements as the basis for permitting an
upward correction. The decision in Circle is inapposite here. In Circle, the
explanation provided in the statement was not corroborated by any of the
worksheets or other affidavits submitted by the protester. In this case, the
explanation provided in the statement is corroborated by and entirely
consistent with the worksheets submitted by Cooper. [5] As a result, we find
the worksheets to be in good order, and further find that they constitute
clear and convincing evidence of the existence of a mistake and the intended
bid.
It is readily apparent that a mathematical error resulted from the
misalignment of figures in a column on one of the breakout pages, and that
an erroneous sum was carried over to the summary worksheet to form the basis
for the final bid calculation. A mistake was clearly made. Since the
worksheets unambiguously set forth the formula used to load the base bid to
arrive at a final bid price, the mathematical error in the worksheets is
readily susceptible to correction, allowing a straightforward, mechanical
recalculation of the bid. See P.K. Painting Co.,
B-247357, May 5, 1992, 92-1 CPD para. 424 at 3.
While the agency objects that there is no back-up data to support the
worksheets, such as subcontractor quotes or price lists, the FAR does not
require that such data be provided in every case. The determinative question
is whether such data is required by the circumstances and facts of a
particular case. Here, Cooper's president asserts that the estimates in the
worksheets are based solely on his many years of experience in the
construction industry and with contracts of similar requirements. There is
nothing improper with a bidder using estimates for cost components or
relying on experience in other projects to calculate expected costs. J.
Schouten Constr., Inc., supra. In this case, the the figures themselves are
not at issue but, rather, their calculation, which is readily apparent from
the worksheets. See Unico Constr. Co., Inc., B-258862, Jan. 24, 1995, 95-1
CPD para. 42 at 4.
Finally, the agency cites our decision in American Museum Constr. Div. of
Byer Indus., Inc., B-210022, Mar. 31, 1983, 83-1 CPD para. 337, for the
proposition that acceptance of an asserted intended bid would adversely
affect the integrity of the competitive bidding system where the amount of
the alleged error is substantial and the difference between the corrected
bid and the next low bid is small. The agency has misconstrued our previous
decisions in this area. There is no particular percentage or dollar amount
at which bids are too close to allow correction so long as clear and
convincing evidence of the mistake is provided. Rather, the closer the
intended bid comes to the next-low bid, the more difficult it is to
establish the amount of the intended bid, and the closer we will scrutinize
the worksheets and the mistake claim. Vrooman Constructors, Inc.,
B-226965.2, June 17, 1987,
87-1 CPD para. 606 at 6; R.H. Whelan Co., B-203248, Aug. 11, 1981, 81-2 CPD para.
123 at 4; see also Asbestos Control Management, Inc., supra, at 5. As
discussed above, close scrutiny of the evidence here clearly reveals that
Cooper did in fact make a mistake and that its intended bid would have been
the lowest.
We recommend that the agency permit Cooper to correct its mistake in bid and
to award the contract to the firm if otherwise appropriate. We also
recommend that the protester be reimbursed the reasonable costs of filing
and pursuing the protest, including attorneys' fees. 4 C.F.R. sect. 21.8(d)(1)
(2000). The protester should submit its certified claim for such costs,
detailing the time expended and the costs incurred, directly to the
contracting agency within 60 days after receipt of this decision.
The protest is sustained.
Anthony H. Gamboa
Acting General Counsel
Notes
1. Since Cooper's bid was within 3 percent of the independent government
estimate, the contracting officer states that he had no basis to suspect a
mistake in bid or to ask Cooper to verify its bid. See Federal Acquisition
Regulation (FAR) sect. 14.407-3(g).
2. The heading of the first breakout page does not correspond with an IFB
drawing number, but contains various tasks common to all construction
projects, such as mobilization and bonds.
3. With respect to this sum only, the agency is correct that the "figures do
not correspond with the numbers on the page." When viewed in context,
however, it is clear that the figure in the column is the sum of the prices
for these two items.
4. If the agency's objection to the handwritten nature of the worksheets is
rooted in a concern that the worksheets are not authentic, this Office has
approved the use of handwritten and computer printout sheets, both of which
are readily susceptible to tampering, in part because the penalties
prescribed by 18 U.S.C. sect. 1001 (Supp. IV 1998) could apply to false
statements or representations by a bidder. Schoutten Constr. Co., B-215663,
Sept. 18, 1984, 84-2 CPD para. 318 at 5; see also Severino Trucking Co., Inc.,
B-259080.2, Mar. 23, 1995, 95-1 CPD para. 160 at 4. Here, Cooper's president
submitted a sworn statement attesting to the authenticity of the worksheets,
which we have no basis to question.
5. We do not agree with the agency that there is a discrepancy between the
worksheets and the affidavit because the affidavit does not explain whether
the figures in the left margin of the breakout page were intended to be
totals or whether they were intended to represent updated quotes received
prior to bid submission. The fact that the summary page of the worksheets
uses the sum of that column shows that the figures in the column were
intended to be totals. Under the circumstances, there was no need for
Cooper's president to provide such an explanation.