LKJ Crabbe Inc. ( 2019 )


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  •                ARMED SERVICES BOARD OF CONTRACT APPEALS
    Appeal of --                                     )
    )
    LKJ Crabbe Inc.                                  )      ASBCA No. 60331
    )
    Under Contract No. W9124E-15-D-0002              )
    APPEARANCE FOR THE APPELLANT:                           Mr. Kevin Crabbe
    President
    APPEARNCES FOR THE GOVERNMENT:                         Raymond M. Saunders, Esq.
    Army Chief Trial Attorney
    Harry M. Parent III, Esq.
    Trial Attorney
    OPINION BY ADMINISTRATIVE JUDGE WOODROW
    ON APPELLANT'S MOTION FOR RECONSIDERATION
    On November 28, 2018, appellant timely moved for reconsideration of the
    Board's October 29, 2018 opinion. LKJ Crabbe Inc., ASBCA No. 60331, 18-1 BCA
    i1 37,193. In its motion for reconsideration, LKJ Crabbe contends that the Board erred
    when it concluded that the government had no obligation to notify appellant of an
    alleged clerical error in appellant's bid.
    DISCUSSION
    In deciding a motion for reconsideration, we examine whether the motion is based
    upon newly discovered evidence, mistakes in our findings of fact, or errors of law.
    Precision Standard, Inc., ASBCA No. 58135, 16-1 BCA ,i 36,504 at 177,860. A motion
    for reconsideration does not provide the moving party the opportunity to reargue its
    position or to advance arguments that properly should have been presented in an earlier
    proceeding. See Dixon v. Shinseki, 
    741 F.3d 1367
    , 1378 (Fed. Cir. 2014). The moving
    party must show a compelling reason why the Board should modify its decision. ADT
    Construction Group, Inc., ASBCA No. 55358, 14-1 BCA ,i 35,508 at 174,041.
    LKJ Crabbe argues that the contracting officer (CO) violated FAR 14.407-2
    when he failed to seek verification of LKJ Crabbe's bid based on an alleged clerical
    error in the pricing of the bid (mot. at 3).
    I.       Failure to Seek Bid Verification Based on Alleged Clerical Error
    It is unclear from appellant's motion what "clerical error" would have triggered the
    CO's obligation pursuant to FAR 14.407-2 to seek verification of appellant's bid pricing.
    In our opinion, we understood LKJ Crabbe as alleging that rounding up appellant's bid
    price from $0.0095 per sq. ft. to $0.01 per sq. ft. "increased appellant's total price by an
    additional $282,150, which would have prevented LKJ Crabbe from being the lowest
    bidder." 18-1 BCA ,r 37,193 at 181,068. We made this statement based on appellant's
    post-hearing brief, which stated that "[t]he error associated with the pricing for routine
    project cleaning would have added an additional $282,150.00 to the bid price by simply
    moving the decimal over two spots where it was intended and where the government
    systems can accept bid pricing" (app. post-hearing br. at 24).
    However, according to LKJ Crabbe, we misstated appellant's original contention
    regarding the alleged clerical error in appellant's bid (mot. at 2). In its motion for
    reconsideration, LKJ Crabbe maintains that rounding up its unit prices "would only have
    increased the total price by $150 per contract year." Appellant also challenges our
    mathematical calculations regarding the rounding up of appellant's unit prices (mot. at 3).
    However, other than alluding to "faulty math of the decision in paragraph two of#3
    discussion point," appellant does not explain why our conclusions are factually incorrect.
    Confusingly, LKJ Crabbe states that "[e]ven if the rounding of the .0095 price were
    to be allowable it still has to be preceded by a call or some form of communication with
    the bidder" (mot. at 3). Instead, LKJ Crabbe argues that the CO's failure to seek
    verification of the bid price "kept the appellant from realizing a clerical error that would
    have increased its total price by $282,150 which would have caused the appellant[']s bid
    to be well out of contention for this award" (id.).* LKJ Crabbe does not identify the
    alleged clerical error that would have increased its bid price by $282,150. We conclude
    that appellant's main concern is the CO's failure to request price verification, not the
    magnitude of the alleged clerical error.
    II.      Discussion
    For two reasons, we find no merit to appellant's contention that the CO
    possessed a duty, pursuant to FAR 14.407, to notify appellant of the alleged clerical
    error in its bid. First, there was no apparent error in LKJ Crabbe's bid. Second, we do
    not possess jurisdiction to entertain a challenge to the government's evaluation of LKJ
    Crabbe's bid (which is a separate question than whether there was a mistaken bid).
    *   It is not at all clear to us how to reconcile appellant's assertion that the rounding of
    its bid by the government's software only made a $150 annual difference in
    price, with its continued reference to a $282,150 difference. In the end, it does
    not matter for the reasons set forth in this decision.
    2
    FAR 14.407-1 requires COs to request verification of a bid only in "'cases of
    apparent mistakes and in cases where the contracting officer has reason to believe that
    a mistake may have been made.''
    After the opening of bids, contracting officers shall
    examine all bids for mistakes. In cases of apparent
    mistakes and in cases where the contracting officer has
    reason to believe that a mistake may have been made, the
    contracting officer shall request from the bidder a
    verification of the bid, calling attention to the suspected
    mistake. If the bidder alleges a mistake, the matter shall be
    processed in accordance with this section 14.407. Such
    actions shall be taken before award.
    FAR 14.407-1 (emphasis added). FAR 14.407-2, Apparent clerical mistakes, in turn.
    addresses a clerical mistake that is "apparent on its face in the bid."
    (a) 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. Examples of
    apparent mistakes are-
    (1) Obvious misplacement of a decimal point. ...
    FAR 14.407-2(a)(l) (emphasis added).
    Here, there was no apparent clerical error in appellant's bid. Appellant
    intended to state its prices in that manner, so there was no actual error in the bid.
    18-1 BCA ,i 37,193 at 181,059, finding 10. The fact that LKJ Crabbe's bid contained
    unit prices carried out to four decimal places is not an "apparent clerical mistake" in
    the same sense as an "obvious misplacement of a decimal point," the example set forth
    in FAR 14.407-2(a)(l). Rounding up a dollar amount carried out four decimal places
    is much less obvious a change than a dollar amount with a decimal misplaced four
    places. For example, rounding up appellant's unit price of $0.0095 to $0.01 is much
    less significant as mistakenly moving the decimal place to the right by four places,
    e.g., from $0.0095 to $95.00, which would render a unit price of $95.00.
    Moreover, the fact that the government's software would not accept prices
    carried out to four decimal places is not a clerical mistake, but rather a factor applied
    universally to all bidders on the contract. By its terms, FAR 14.407 applies to
    mistakes in bids, not to the government's evaluation of the bids. Challenging how the
    3
    I
    government input LKJ Crabbe's bid into the government's computer system relates to
    the government's evaluation of its bid, not to a clerical error in the bid itself. A
    challenge to the government's evaluation of its bid does not qualify as a proper claim
    "arising under or relating to" this contract, as required by FAR 2.101. We previously
    have held that where an appellant's claim is based upon a government decision
    concerning a contract not yet in existence, the Board lacks jurisdiction to hear the case
    because the claim "does not arise under or relate to appellant's contract.'· Amaratek.
    ASBCA No. 60503, 16-1 BCA iJ 36.491 at 177,832 ( quoting Statistica, Inc., ASBCA
    No. 44116, 92-3 BCA ,i 25,095 at 125,126). A claim challenging the government's
    evaluation of a bid is more in the nature of a bid protest, over which the Board lacks
    jurisdiction. Statistica, 92-3 BCA ,i 25,095 at 125, 126-27 ( citing Coastal Corp. v.
    United States, 
    713 F.2d 728
    , 730 (Fed. Cir. 1983)).
    Therefore, we find no basis to grant appellant's motion for reconsideration.
    Zulco International, Inc., ASBCA No. 55441, 08-1 BCA ,i 33,799 at 167,319 (motion
    for reconsideration must be based on newly discovered evidence, factual mistake, or
    errors of law).
    CONCLUSION
    For these reasons, LKJ Crabbe's motion for reconsideration is denied.
    Dated: January 22, 2019
    .   "\    )   .   /
    '
    . .~   ___;:   I
    KiiNNETFii. WcsooROW
    Administrative Judge
    Armed Services Board
    of Contract Appeals
    I concur
    RICHARD SHACKLEFORD                                J. REID PROUTY
    Administrative Judge                               Administrative Judge
    Acting Chairman                                    Vice Chairman
    Armed Services Board                               Armed Services Board
    of Contract Appeals                                of Contract Appeals
    4
    I certify that the foregoing is a true copy of the Opinion and Decision of the
    Armed Services Board of Contract Appeals in ASBCA No. 60331, Appeal ofLKJ
    Crabbe Inc., rendered in conformance with the Board's Charter.
    Dated:
    JEFFREY D. GARDIN
    Recorder. Armed Services
    Board of Contract Appeals
    5
    

Document Info

Docket Number: ASBCA No. 60331

Judges: Woodrow

Filed Date: 1/22/2019

Precedential Status: Precedential

Modified Date: 2/7/2019