Government Contracting Database
Mistake in Bid – Upward Correction
The Federal Acquisition Regulations (FAR) set forth in Section 14.407-3, the principles governing mistakes in bid before award. FAR 14.407-3(a) indicates that a bidder may request permission to correct its bid if it can establish both the existence of the mistake and the intended bid by clear and convincing evidence. Under these requirements, agencies can allow upward corrections of a low bid before awarding to an amount that is still less than the next low bid, where clear and convincing evidence establishes both the mistake and the intended bid. Pcl Constructors Canada, Inc., B-274697, 96-2 CPD 239; Fortec Constructors, B-213190.2, 81-2 CPD 264. The Comptroller General has held that this evidentiary threshold is a question of fact and that the GAO will not reverse an agency’s decision unless that decision lacks a reasonable basis. Pcl Constructors Canada, Inc., supra; Fortec, supra. GAO has reversed agency decision on mistake-in-bids and has permitted upward correction. Amtech Elevator Services, B-216067, 85-1 CPD 31; R&R Contracting, Inc., B-217412, 85-1 CPD 260; Vrooman Contractors, Inc., B-218610, 85-2 CPD 369.
Prior Comptroller General decisions are applicable for determining whether the evidence of the mistake and the intended bid is clear and convincing. If the evidence is clear and convincing, then an agency decision denying the upward correction is unreasonable. Vrooman, supra. The magnitude of the mistake is not of importance. Rather, GAO views the closeness of the corrected bid to the next low bid as a significant element which may increase the bidder’s burden of proof if the corrected bid comes too close to the next low bid. Aleutian Constructors, B-21511, 84-2 CPD 44. In Aleutian, the correction would have resulted in a bid less than 1% below the next low bid.
A bidder is allowed to use extrinsic materials in support of its mistake-in-bid since extrinsic evidence, not under the sole control of the bidder, is acceptable to the GAO. Frontier Contracting Co., Inc., B-214260.2, 84-2 CPD 40. Worksheets and affidavits are accepted as clear and convincing evidence S.W. Electronics Manufacturing Corp., B-218482, 85-2 CPD 157, if they are in good order and there is no contravening evidence. Montgomery Construction Co., Inc., B-221317, 86-1 CPD 210. There must be no conflicting affidavits or contravening evidence which would support a denial of a correction. Southwind Construction Corporation, B-228013, 87-2 CPD 346.
Correction of a bid is permitted when the range of uncertainty is small. Vrooman Contractors, B-218610 85-2 CPD 369. The bidder is not required to prove its intended bid exactly, particularly when the bid is still substantially below the next low bid, as in the case of Dadson Corporation, B-210413, 83-1 CPD 618. The presence of a small degree of uncertainty is not inconsistent with the requirement for clear and convincing evidence. Fortec Constructors, B-189949, 77-2 CPD 372, and correction has been allowed. Vrooman Contractors, supra.
Updated: July 2, 2018