LKJ Crabbe Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
LKJ Crabbe Inc. ) ASBCA No. 60331
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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.
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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
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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
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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
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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
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