First Enterprise

B-292967: Jan 7, 2004

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First Enterprise protests the cancellation after bid opening of invitation for bids (IFB) No. 600-249-03RT, issued by the Department of Veterans Affairs (VA) for the construction of a prosthetic and eye clinic center as part of the VA Greater Los Angeles Healthcare System, Los Angeles, California. First Enterprise, the bidder in line for award under the IFB, maintains that the agency had no compelling reason to cancel and convert the IFB to a negotiated procurement.

We deny the protest.

B-292967, First Enterprise, January 7, 2004



Decision


Matter of: First Enterprise

File: B-292967

Date: January 7, 2004

Sam Z. Gdanski, Esq., for the protester.
Kenneth B. MacKenzie, Esq., and Phillipa L. Anderson, Esq., Department of Veterans Affairs, for the agency.
Louis A. Chiarella, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Determination to cancel invitation for bids after bid opening is unobjectionable where the bids exceeded the funding allocated for the construction project, irrespective of any dispute concerning the validity of the government estimate.

DECISION

First Enterprise protests the cancellation after bid opening of invitation for bids (IFB) No. 600-249-03RT, issued by the Department of Veterans Affairs (VA) for the construction of a prosthetic and eye clinic center as part of the VA Greater Los Angeles Healthcare System, Los Angeles, California. First Enterprise, the bidder in line for award under the IFB, maintains that the agency had no compelling reason to cancel and convert the IFB to a negotiated procurement.

We deny the protest.

The solicitation, issued on August 6, 2003 as a Small Business Administration (SBA) 8(a) set-aside, contemplated the award of a fixed-price contract.[1] The IFB required bidders to submit prices for all the required work (the main bid item), as well as prices for five deductive bid alternates. The construction project had approved funding in the amount of $3,510,190.

At bid opening on September 4, the VA received bids from First Enterprise, Ace Engineering, Inc., DJM Construction Co., Inc., and Stronghold Engineering. The bid prices for the required work, including the deductive alternate items, were as follows:



First Enterprise

Ace

DJM

Stronghold

Main Bid Item

$3,884,495

$3,592,994

$4,100,000

$3,997,127

Alternate Item #1

$3,814,845

$3,562,994

$4,070,000

$3,967,127

Alternate Item #2

$3,708,985

$3,557,994

$4,060,000

$3,955,127

Alternate Item #3

$3,760,985

$3,514,394

$4,010,000

$3,915,127

Alternate Item #4

$3,752,345

$3,484,394

$3,930,000

$3,895,127

Alternate Item #5

$3,680,895

$3,464,394

$3,900,000

$3,885,127


Agency Report (AR), Tab D, Abstract of Offers, Sept. 4, 2003.

The contracting officer reviewed the bids and determined that Ace was the apparent low bidder. The agency subsequently undertook steps to make award of Alternate Item #5 to Ace at a price of $3,464,394. On September 15, Ace notified the contracting officer of a mistake in its bid and asked to withdraw the bid. By letter dated September 24, the agency permitted Ace to withdraw its bid.

The VA then decided to reject all remaining bids and to cancel the IFB because, among other reasons, all remaining bids exceeded the amount of funding available. The contracting officer also decided to complete the acquisition by negotiation, consistent with FAR 14.404-1(f). AR, Tab E, Determination and Findings, at 1-2.

On September 23 the VA amended the solicitation, informed the remaining bidders that all the prices received were in excess of the available funding, and converted the IFB to a request for proposals. While the construction project requirements remained the same, the amended solicitation also included a sixth alternate deductive item, in order to maximize the potential for a contract award.

Three offerors, including First Enterprise and DJM, submitted proposals by the September 25 closing date. The offerors' prices and the independent government estimate (IGE) were as follows:



First Enterprise

DJM

Offeror 3

IGE

Main Bid Item

$3,762,558

$4,008,000

$3,949,100

$3,596,111

Alternate Item #1

$3,727,271

$3,982,000

$3,919,100

$3,566,111

Alternate Item #2

$3,711,506

$3,969,000

$3,907,100

$3,556,111

Alternate Item #3

$3,666,666

$3,921,000

$3,867,100

$3,513,111

Alternate Item #4

$3,656,466

$3,837,000

$3,847,100

$3,494,111

Alternate Item #5

$3,613,986

$3,796,000

$3,827,100

$3,471,111

Alternate Item #6

$3,111,216

$2,989,000

$3,627,100

$3,121,111









Robert Hall Assocs., Inc.
Michelle F. Evans Robert Hall Assocs., Inc. supra DynaLantic Corp. Michelle F. Evans supra Kato/Intermountain Elec., A Joint Venture





[2] $ 50,000

$ 406,394




[3]

National Projects, Inc. J. Morris & Assocs., Inc. See et seq.

[4] M-Cubed Info. Sys., Inc. AST Envtl., Inc.








[1] See
[2]
[3] See H. Watt & Scott Gen. Contractors, Inc.--Request for Declaration of Entitlement to Costs
[4] See See