TITLE: Mid Eastern Builders, Inc., B-290717, September 9, 2002
BNUMBER: B-290717
DATE: September 9, 2002
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Mid Eastern Builders, Inc., B-290717, September 9, 2002
Decision
Matter of: Mid Eastern Builders, Inc.
File: B-290717
Date: September 9, 2002
William E. Franczek, Esq., Vandeventer Black, for the protester.
Terence Murphy, Esq., and Patrick H. O'Donnell, Esq., Kaufman & Canoles,
for W.B. Meredith, II, Inc., an intervenor.
Julia C. Novotny, Esq., Department of the Navy, for the agency.
Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging agency's decision to interpret awardee's conflicting
bid amounts as reflecting the higher of the two amounts is denied where
the agency reasonably determined there was clear and convincing evidence
that the awardee intended to bid the higher amount.
DECISION
Mid Eastern Builders, Inc. protests the Department of the Navy's award of
a contract to W.B. Meredith II, Inc. under invitation for bids (IFB) No.
N62470-00-B-0150 to perform specified construction services in Norfolk,
Virginia. Mid Eastern protests that the agency improperly accepted
Meredith's bid.
We deny the protest.
The solicitation was issued on April 2, 2002 and, as amended, required
bidders to submit three copies of their bid packages to a specified
location by 2:00 p.m. on June 6. On that day, the agency timely received
five bid packages, including those of Mid Eastern and Meredith. Three
Navy officials were involved in the bid opening process. One official
opened the bids, a second official read the bid prices, and a third
recorded the bids on a bid abstract form. Agency Report, Contracting
Officer's Statement, at 2.
The record indicates that, upon opening Meredith's bid package, the first
official handed the top copy of Meredith's bid to the second official,[1]
who read the bid amount aloud as *$7,178,689.* Agency Report, Enclosure
16, Affidavit of Navy Contract Specialist. The first official then noted
that the second and third copies of Meredith's bid appeared to be for an
amount of $2,178,689;[2] this lower number was then read aloud. Id. At
that point, a Meredith representative who was attending the bid opening
spoke up, asserting, *[I]t's a '7'.* Affidavit of Protester's
Administrative Assistant, at 2. Upon studying the three copies of
Meredith's bid, the Navy official responsible for reading the bids aloud
restated Meredith's bid as $7,178,689. Id.
The other four evaluated bids were as follows:
+---------------------------------------------------------+
|Offeror |Evaluated Bid |
|---------------------------+-----------------------------|
|Offeror A |$10,185,000 |
|---------------------------+-----------------------------|
|Offeror B | 8,508,600 |
|---------------------------+-----------------------------|
|Offeror C | 7,771,000 |
|---------------------------+-----------------------------|
|Mid Eastern | 7,577,000 |
+---------------------------------------------------------+
Agency Report, Contracting Officer's Statement, at 3.
Thereafter, by letter to Meredith dated June 6 (bid opening day), the
agency advised Meredith as follows: *Bid documents submitted are unclear
as to the intent of the amount submitted for the Base Bid, Bid Item 0001.
It is requested that you provide original worksheets to clarify your bid
price.* Agency Report, Enclosure 7.
In response, Meredith submitted affidavits from three of its employees
involved in the bid preparation process, each stating that Meredith's
intended bid was $7,178,689. Agency Report, Enclosure 12. Additionally
Meredith provided the agency with its computerized worksheets, which
disclose the component elements of its bid and lead to a bottom line of
$7,178,689.[3] Agency Report, Enclosure 9.
Finally, the agency contacted Meredith's bonding company seeking
clarification regarding the bid amount on which Meredith's bid bond was
based.[4] The bonding company replied, *The approximate amount of bid was
listed as $8.0 million dollars.* Agency Report, Enclosure 11.
Thereafter, the agency determined to accept Meredith's bid of $7,178,689.
This protest followed.
DISCUSSION
Mid Eastern protests that it was improper for the agency to accept
Meredith's bid as $7,178,689. We disagree.
Section 14.407-2 of the Federal Acquisition Regulation (FAR) provides:
Any clerical mistake, apparent on its face in the bid, may be corrected by
the contracting officer before award. The contracting officer first shall
obtain from the bidder a verification of the bid intended.
Additionally, section 14.407-3 of the FAR provides alternative authority
for the correction of bids,[5] stating:
If a bidder requests permission to correct a mistake and clear and
convincing evidence establishes both the existence of the mistake and the
bid actually intended, the agency head may make a determination permitting
the bidder to correct the mistake; provided, that if this correction would
result in displacing one or more lower bids, such a determination shall
not be made unless the existence of the mistake and the bid actually
intended are ascertainable substantially from the invitation and the bid
itself.
. . . .
If the bidder alleges a mistake, the contracting officer shall advise the
bidder to make a written request to withdraw or modify the bid. The
request must be supported by statements (sworn statements, if possible)
and shall include all pertinent evidence such as the bidder's file copy of
the bid, the original worksheets and other data used in preparing 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 S: 14.407-3((a), (g).
We have explained that a bidder seeking upward correction of its bid after
bid opening, but prior to award, must submit clear and convincing evidence
that a mistake was made, and the intended bid price. C Constr. Co., Inc.,
B- 253198.2, Sept. 30, 1993, 93-2 CPD P: 198 at 2. The exact amount of
the intended bid need not be established, provided 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.
Workpapers, including hard copy printouts of computer-generated software
spreadsheet, may constitute part of that clear and convincing evidence.
Id at 2-3. Whether evidence of the intended bid amount meets the clear and
convincing 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. Here, it is clear that the agency's determination to accept
Meredith's bid as $7,178,689 was reasonable.
First, Meredith's representative clearly asserted at the bid opening that
characterization of Meredith's bid as $2,178,689 was erroneous. In this
regard, the agency's mere comparison of this amount to the amounts bid by
all other offerors (ranging from approximately $7.5 million to
approximately $10.2 million) was sufficient to establish that a bid of
approximately $2.2 million constituted a clerical mistake, apparent on the
face of the bid. See FAR S: 14.407-2. This conclusion is supported by
the fact that one of the copies of the bid showed the $7,178,689 figure.
Next, the agency requested and received sworn affidavits from Meredith
employees responsible for preparing the bid, along with copies of
Meredith's computerized worksheets, clearly demonstrating that Meredith
did not intend to submit a bid of approximately $2.2 million and, further,
establishing that the elements of its bid reflected an intended bid amount
of approximately $7.2 million.
Additionally, the agency sought independent verification from Meredith's
bonding company regarding the amount on which Meredith's bid bond was
based. The bonding company responded, in writing, stating, *The
approximate amount of [Meredith's] bid was listed as $8 million dollars.*
Finally, interpretation of Meredith's bid as $7,178,689 -- rather than
$2,178,689 -- did not displace any other offeror.
Based on the record presented here, we find nothing unreasonable in the
agency's determination that there was clear and convincing evidence of
Meredith's intent to
bid the amount of $7,178,689. Accordingly, we find no basis to question
the agency's determination to award a contract to Meredith on the basis of
that bid.
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] All three copies of Meredith's bid were handwritten originals.
[2] The IFB sought bids for two line items. Line item No. 1 was for the
construction services and line item No. 2 was for network and telephone
services. At issue in this protest is the first digit of Meredith's bid
for line item No. 1 (that is, whether that number was intended to be a *2*
or a *7*). For the sake of simplicity, all references to bid amounts
refer to the bid amount for line item No. 1.
[3] The worksheets reflect over 40 individual bid elements, along with
associated costs, including, for example, *selective interior demolition,*
*erosion control,* *structural St[ee]l,* *finish carpentry,* *spray
applied fireproofing,* and *plumbing.* Id.
[4] The bonding documents submitted with Meredith's bid package stated the
bond amount as a percentage of the submitted bid. Agency Report,
Enclosure 3.
[5] The FAR expressly states, *This authority [in FAR S: 14.407-3] is in
addition to that in [FAR S:] 14.407-2.* FAR S:14.407-3.