Aquila Fitness Consulting Systems, Ltd., B-286488, January 17, 2001

B-286488 Jan 17, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights A bid that is based upon the incorrect premise that only three full-time and two part-time positions were required under a solicitation for services where the invitation for bids clearly requires five full-time positions may not be corrected. 2. Protest is sustained. Although the statement of work contained in the IFB did not state how many individuals were required to perform the contract work. Notice of Intention to Make a Service Contract and Response to Notice) advised bidders that five positions were to be used in the performance of the contract. That these positions were covered by the Service Contract Act and were full-time. Modified the titles of these positions and again specifically indicated that these five positions were full-time. /1/ Amendment No. 2. View Decision Matter of: Aquila Fitness Consulting Systems, Ltd. File: B-286488 Date: January 17, 2001 DIGEST Attorneys DECISION Aquila Fitness Consulting Systems, Inc. protests the agency's refusal to accept its modified bid and the award of a contract to FMF Corporation, under invitation for bids (IFB) No. J4R12001, issued by the Department of Labor, Mine Safety and Health Administration (MSHA), for fitness/wellness services. We deny the protest in part and sustain it in part. The agency issued the IFB on August 7, 2000 to assist in operating the Wellness Program at the MSHA Academy in Beckley, West Virginia, for a base year with 4 option years. Although the statement of work contained in the IFB did not state how many individuals were required to perform the contract work, the IFB elsewhere (on the Standard Form (SF) 98a, Notice of Intention to Make a Service Contract and Response to Notice) advised bidders that five positions were to be used in the performance of the contract, and that these positions were covered by the Service Contract Act and were full-time. RFP at 52. Amendment No. 1, issued on August 11, modified the titles of these positions and again specifically indicated that these five positions were full-time. /1/ Amendment No. 2, issued on August 22, contained questions posed by potential bidders and agency responses, including the following: Amendment [No. 1] . . . indicates that there are 5 full time positions to be employed on contract. . . . The statement work . . . indicates only 1 fitness director, 1 fitness aide and 1 lifeguard. Which one is correct? Amendment #1 overrides original page 52, indicating five (5) full-time employees. Thus, the IFB unambiguously provided that five full-time positions were required. /2/ Seven bids were submitted by bid opening on September 6. The protester submitted the apparent low bid at $426,671.88 and FMF submitted the fourth low bid at $566,644. The agency asked the four lowest bidders, including Aquila and FMF, to verify their bids. Both Aquila and FMF provided worksheets supporting their bid prices. Upon reviewing Aquila's worksheets, the contracting officer determined that Aquila's bid price was based on three full-time positions and two part-time positions, instead of the five full-time positions required by the IFB. Agency Report at 1. The agency immediately advised Aquila of this determination and, later that same day, Aquila submitted an amended bid that increased its bid price to $473,637 for the 5-year term to include the cost for five full-time positions. Agency Report, Tab 7, Aquila Bid Revision. The agency rejected Aquila's bid as nonresponsive and made award to FMF. /3/ Sometime after award had been made, the agency noticed that FMF's worksheets evidenced that that firm had made the identical mistake that Aquila had made, namely that its bid provided for two part-time positions and three full-time positions, instead of the five full-time positions required by the IFB. The contracting officer decided to "reform" FMF's contract by issuing a contract modification in the amount of $24,500 increasing FMF's contract price to provide the required five full-time positions for the base year. /4/ Agency Report at 2. Aquila protests that the agency should have accepted its request to amend its bid. This request was in effect a request that its bid be corrected based upon a claimed mistake in bid pursuant to Federal Acquisition Regulation (FAR) Sec. 14.407. However, correction of a claimed mistake in bid is not permitted where the alleged mistake is based on an incorrect premise which a bidder discovers after bid opening. Innovative Refrigeration Concepts, B-242515, Mar. 27, 1991, 91-1 CPD Para. 332 at 3. To allow such a correction would impermissibly permit a bidder to recalculate its bid to arrive at a bid never intended before bid opening. Oregon Elec. Constr., Inc., B-232419, Nov. 23, 1988, 88-2 CPD Para. 512.