B-126389, FEB. 3, 1956

B-126389, FEB. 3, 1956

TO KING AND KING, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 19, 1955, SUBMITTING A PROTEST IN BEHALF OF NELLO L. TEER COMPANY AGAINST AWARD OF A CONTRACT TO AGNEW-JOSEPH COMPANY UNDER INVITATION FOR BIDS CIVENG-46-022-56-18, ISSUED BY THE HUNTINGTON DISTRICT, CORPS OF ENGINEERS, ON OCTOBER 19, 1955.

THE INVITATION REQUESTED BIDS ON ITEMS LISTED ON UNIT PRICE SCHEDULES FOR RELOCATION OF THE BALTIMORE AND OHIO RAILROAD, SECTION 2, SUTTON RESERVOIR, ELK RIVER, WEST VIRGINIA, AND DESCRIBED THE WORK TO BE PERFORMED AS FOLLOWS:

"LOT A. LOT A CONSISTS ESSENTIALLY OF APPROXIMATELY 1.6 MILES OF GRADING TOGETHER WITH 1 REINFORCED CONCRETE BOX CULVERT, 1 REINFORCED CONCRETE ARCH CULVERT, 1 BRIDGE SUBSTRUCTURE AT BENS RUN AT GILLESPIE, W. VA., 1 BRIDGE SUBSTRUCTURE AT LAUREL CREEK AT CENTRALIA, W. VA., AND MISCELLANEOUS PIPE CULVERTS.

"LOT B. LOT B CONSISTS ESSENTIALLY OF APPROXIMATELY 2.4 MILES OF GRADING TOGETHER WITH 1 REINFORCED CONCRETE BOX CULVERT, 1 CONCRETE CRIB WALL, 1 BRIDGE SUBSTRUCTURE, 1 TUNNEL APPROXIMATELY 565 FEET LONG AND MISCELLANEOUS PIPE CULVERTS.

"LOT C. LOT C IS AN ALTERNATE ROUTE TO LOT B. LOT C CONSISTS ESSENTIALLY OF 1.8 MILES OF GRADING, 1 TUNNEL APPROXIMATELY 600 FEET LONG, 1 TUNNEL APPROXIMATELY 2,050 FEET LONG, 1 BRIDGE SUBSTRUCTURE AND MISCELLANEOUS PIPE CULVERTS.'

PARAGRAPH 4, PAGE 2, OF THE INVITATION PROVIDED:

"4. AWARD WILL BE MADE AS A WHOLE TO ONE BIDDER EITHER UNDER LOT A PLUS LOT B OR UNDER LOT A PLUS LOT C, WHICHEVER IS DEEMED TO BE IN THE BEST INTEREST OF THE GOVERNMENT.'

THE BID FORM FURNISHED TO PROSPECTIVE BIDDERS DID NOT IN FACT PROVIDE FOR BIDS ON LOTS A, B, AND C SEPARATELY, BUT CONSISTED OF TWO UNIT PRICE SCHEDULES, ONE COVERING LOT A PLUS LOT B, AND THE OTHER LOT A PLUS LOT C, EACH SCHEDULE BEING COMPLETE IN ITSELF.

IN RESPONSE TO THE INVITATION, SIXTEEN BIDS WERE RECEIVED. TWO BIDDERS, AGNEW-JOSEPH COMPANY AND FRANK MASHUDA COMPANIES ASSOCIATED, BID ONLY ON LOTS A PLUS B AND A PLUS C, RESPECTIVELY. ALL OTHER BIDDERS SUBMITTED BIDS ON BOTH SCHEDULES. THE BID OF $2,950,236.52 SUBMITTED BY NELLO L. TEER COMPANY ON LOT A PLUS LOT C WAS THE LOWEST BID RECEIVED FOR THE WORK TO BE PERFORMED UNDER THAT SCHEDULE, AND ITS BID OF $2,934,351.55 WAS THE SECOND LOWEST ON LOTS A PLUS B, THE BID OF AGNEW-JOSEPH COMPANY IN THE AMOUNT OF $2,745,999.24 BEING THE LOWEST ON THE LATTER SCHEDULE.

THE PROTEST OF NELLO L. TEER COMPANY AGAINST AWARD OF A CONTRACT COVERING LOTS A AND B TO AGNEW-JOSEPH COMPANY ALLEGES THAT THE INVITATION REQUIRED BIDDERS TO SUBMIT PRICES FOR BOTH LOT B AND ALTERNATE LOT C, AND, SINCE THE BID OF AGNEW-JOSEPH COMPANY DID NOT INCLUDE A PRICE ON LOT C, IT WAS NOT RESPONSIVE TO THE INVITATION AND MUST BE REJECTED. ADDITIONALLY, IT IS CONTENDED THAT SUCH AWARD WOULD BE INCONSISTENT WITH, AND CONTRARY TO, THE PROVISIONS OF A SUPPLEMENTAL CONTRACT BETWEEN THE UNITED STATES AND THE BALTIMORE AND OHIO RAILROAD COMPANY REQUIRING THE UNITED STATES TO ADVERTISE FOR BIDS ON ITEMS 2 AND 3 AND TO FURNISH AN ABSTRACT OF BIDS TO THE RAILROAD.

BY OUR LETTER DATED DECEMBER 20, 1955, YOU WERE ADVISED THAT YOUR PROTEST HAD BEEN BROUGHT TO THE ATTENTION OF THE DEPARTMENT OF THE ARMY WITH A REQUEST THAT A FULL REPORT IN THE MATTER BE FURNISHED THIS OFFICE. SUCH REPORT HAS NOW BEEN RECEIVED AND READS IN PERTINENT PART AS FOLLOWS:

"UNDER DATE OF 3 DECEMBER 1955 NELLO L. TEER COMPANY ADDRESSED A LETTER TO THE CONTRACTING OFFICER PROTESTING CONSIDERATION OF THE BID OF AGNEW- JOSEPH COMPANY FOR AWARD ON THE GROUND THAT IT WAS AN INCOMPLETE BID SINCE NO PRICES HAD BEEN INCLUDED FOR LOT C WORK. THIS LETTER WAS REVIEWED IN THE OFFICE OF THE CHIEF OF ENGINEERS AND IT WAS DETERMINED THAT THE BID OF AGNEW-JOSEPH COMPANY SHOULD BE CONSIDERED FOR AN AWARD SINCE THE BID WAS COMPLETE FOR THE ENTIRE PROJECT UNDER ONE ALTERNATE, I.E. THE ALTERNATE INVOLVING LOTS A AND B. IF AN AWARD ON LOTS A AND IS FOUND TO BE IN THE BEST INTEREST OF THE GOVERNMENT THE BID OF AGNEW-JOSEPH COMPANY IS COMPLETE AND NEED NOT BE MODIFIED IN ANY WAY TO RECEIVE AN AWARD. SINCE IT WAS CONSIDERED TO BE IN THE BEST INTEREST OF THE GOVERNMENT TO ACCEPT ALTERNATE B INSTEAD OF ALTERNATE C, THE BID OF AGNEW-JOSEPH COMPANY WAS CONSIDERED AND CONTRACT NO. DA 46-022-CIVENG-56-36 AWARDED TO THIS BIDDER ON 22 DECEMBER 1955.'

A REQUEST IN AN INVITATION FOR THE SUBMISSION OF ALTERNATE BIDS IS FOR THE BENEFIT OF THE GOVERNMENT, AND WHERE A BID AS MADE COVERS THE ENTIRE WORK CONTEMPLATED UNDER ONE ALTERNATIVE, FAILURE TO RESPOND TO THE REQUEST FOR AN ALTERNATE BID IS NOT SUFFICIENT IN ITSELF TO REQUIRE A REJECTION OF THE BID. AS WE SEE IT, SUCH A FAILURE CAN ONLY OPERATE TO THE ADVANTAGE OF OTHER BIDDERS RATHER THAN TO THEIR DISADVANTAGE SINCE A BIDDER NOT SUBMITTING AN ALTERNATE THEREBY ELIMINATES HIMSELF FROM COMPETITION WITH OTHER BIDDERS SO FAR AS THE ALTERNATE WORK IS CONCERNED. WE DO NOT CONSTRUE THE INVITATION IN THE INSTANT CASE TO REQUIRE A BIDDER TO SUBMIT BID PRICES ON BOTH ALTERNATES AS A CONDITION PRECEDENT TO CONSIDERATION OF HIS BID. IN VIEW OF SUCH DETERMINATION WE ARE UNABLE TO FIND ANY LEGAL JUSTIFICATION FOR THE CONTENTION THAT THE BID OF AGNEW-JOSEPH COMPANY COULD NOT BE CONSIDERED FOR AWARD BECAUSE IT DID NOT CONTAIN A BID PRICE ON ITEMS WHICH WERE NOT NECESSARY TO FULL COMPLETION OF THE WORK CONTEMPLATED BY THE AWARD.

WITH REFERENCE TO YOUR CONTENTION THAT AN AWARD TO AGNEW-JOSEPH COMPANY WOULD BE INCONSISTENT WITH AND CONTRARY TO THE PROVISIONS OF AN AGREEMENT BETWEEN THE UNITED STATES AND THE BALTIMORE AND OHIO RAILROAD, THE INFORMATION SUBMITTED TO THIS OFFICE BY YOUR CLIENT AND BY THE DEPARTMENT OF THE ARMY FAILS TO INDICATE WHEREIN THE CONDITIONS OF SUCH AGREEMENT HAVE NOT BEEN COMPLIED WITH BY THE UNITED STATES. BIDS WERE REQUESTED AND RECEIVED ON BOTH OF THE ALTERNATIVE ROUTES AND IT IS APPARENTLY NOT CONTENDED THAT THE UNITED STATES FAILED TO FURNISH THE RAILROAD AN ABSTRACT OF SUCH BIDS.

AS TO YOUR CONTENTION THAT AWARD ON THE BASIS OF THE A PLUS C ROUTE WOULD BETTER SERVE THE INTERESTS OF THE GOVERNMENT, THAT IS A MATTER PRIMARILY FOR DETERMINATION BY THE ADMINISTRATIVE AGENCY, WHOSE JUDGMENT IS NOT ORDINARILY SUBJECT TO QUESTION BY OUR OFFICE EXCEPT FOR GROSS AND FLAGRANT ABUSE.

ACCORDINGLY, ON THE BASIS OF THE RECORD PRESENTLY BEFORE THIS OFFICE, THERE IS NO APPARENT LEGAL BASIS UPON WHICH OBJECTION MAY BE MADE TO THE AWARD OF CONTRACT NO. DA 46-022-CIVENG-56-36 TO AGNEW JOSEPH COMPANY.