Gulfstates Industries, Inc., B-277173.2, October 15, 1997

B-277173.2 Oct 15, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights 000 was apparently low. 860 was third low. The second low bidder was allowed to withdraw its bid based on a mistake. Was $250. Because THL's bid was substantially lower than the government estimate and the other bids. That its intended bid was $295. Was based on a contract amount "estimated at $295. An agency may allow upward correction of a low bid before award where there is clear and convincing evidence establishing both the existence of the mistake and the intended bid. Whether the evidence meets this standard is a question of fact. Our Office will not question an agency's decision based on this evidence unless it lacks a reasonable basis. May constitute clear and convincing evidence if they are in good order and indicate the intended bid price. View Decision Matter of: Gulfstates Industries, Inc. File: B-277173.2 Date: October 15, 1997 DIGEST Attorneys DECISION Gulfstates Industries, Inc. protests the award of a firm, fixed-price contract to THL Enterprises, Inc. by the Department of Labor under invitation for bids (IFB) No. 97-DAA-16-JC for the removal and replacement of specified roof systems and damaged decking and certain associated repairs at the Jacksonville Job Corps Center. The protester contends that the agency improperly permitted THL to correct a mistake in its apparent low bid. We deny the protest. Of the seven bids received at the January 28, 1997, bid opening, THL's bid of $195,000 was apparently low, and the Gulfstates bid of $356,860 was third low. The second low bidder was allowed to withdraw its bid based on a mistake. The government estimate for the project, as stated in the IFB, was $250,000 to $500,000. Because THL's bid was substantially lower than the government estimate and the other bids, the project architect requested, on January 29, that THL verify its bid. In response, by letter of the same date, THL stated that it had made a clerical mistake in its bid, and that its intended bid was $295,000. By letter to the agency of January 30, THL requested correction of its bid to $295,000 and enclosed a cost breakdown to demonstrate the clerical error and bond documents to support the intended $295,000 bid. THL's cost breakdown indicated a total cost of $290,439.82, without any entry for profit, and the enclosed power of attorney for the bid bond states that the bond for 20 percent of the bid, not to exceed $59,000, was based on a contract amount "estimated at $295,000." On the basis of that documentation, the agency determined that THL had, in fact, made a correctable clerical error and allowed bid correction to $295,000 before awarding THL the contract on May 22, 1997. On May 23, Gulfstates filed a protest with the agency objecting to this determination. The agency denied the protest by letter dated June 24 and Gulfstates subsequently filed this protest with our Office on July 7. An agency may allow upward correction of a low bid before award where there is clear and convincing evidence establishing both the existence of the mistake and the intended bid. Federal Acquisition Regulation (FAR) Sec. 14.407-3(a). Whether the evidence meets this standard is a question of fact, and our Office will not question an agency's decision based on this evidence unless it lacks a reasonable basis. Maple Constr. Co., Inc., B-270073, Feb. 6, l996, 96-1 CPD Para. 43 at 2. Work papers, including computer generated spreadsheets, may constitute clear and convincing evidence if they are in good order and indicate the intended bid price, and there is no contravening evidence. 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. Id. The thrust of the protester's comments on the agency report is that it objects to any post bid opening correction as unfair because it is not possible that "any evidence [can] be clear and convincing after the bids are open." However, as noted above, the FAR permits correction after bid opening and before award if there is clear and convincing evidence of the mistake and of the intended bid; further, FAR Sec. 14.407-3(g)(2) provides that in determining whether there is such evidence, the contracting officer should obtain from the bidder and consider statements and all pertinent evidence such as worksheets and any other evidence that establishes the existence of the error and the bid actually intended.