B-155665, DEC. 31, 1964

B-155665: Dec 31, 1964

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ATTORNEYS AT LAW: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 25. ALTERNATE A WAS AN ADDITIVE ALTERNATE. WHEREAS THE OTHER THREE ALTERNATES WERE DEDUCTIVE. SINCE THE AGGREGATE AMOUNT OF THE BASE BID AND ADDITIVE ALTERNATE A OF EIGHT OF THE ELEVEN BIDDERS WERE ALL WITHIN THE APPROPRIATION AVAILABLE FOR THIS PROJECT. IT WAS DETERMINED THAT AWARD COULD BE MADE FOR THE BASE BID AND ALTERNATE A WITHOUT THE NECESSITY OF CONSIDERING THE DEDUCTIVE ALTERNATES B. SINCE BAXTER IS THE APPARENT LOW BIDDER ON THE BASE BID AND ALTERNATE A AT A TOTAL OF $894. IT IS PROPOSED THAT AWARD BE MADE TO IT. IT IS YOUR FURTHER CONTENTION THAT DIFFERENT MEANS OF CONSTRUCTION PROPOSED IN ALTERNATE B "COULD NOT BE CONSTRUED AS A MEANS OF REDUCING THE COST OF THE BUILDING" IN THE EVENT OF THE INSUFFICIENCY OF FUNDS FOR THE LOWEST BASE BID SUBMITTED.

B-155665, DEC. 31, 1964

TO FULBRIGHT, CROOKER, FREEMAN, BATES AND WHITE, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 25, 1964, PROTESTING ON BEHALF OF WARRIOR CONSTRUCTORS, INC., AGAINST AWARD OF A CONTRACT BY THE GENERAL SERVICES ADMINISTRATION TO BAXTER CONSTRUCTION COMPANY FOR CONSTRUCTION OF A U.S. POST OFFICE AND FEDERAL OFFICE BUILDING IN PASADENA, TEXAS, UNDER PROJECT NO. 41928.

THE INVITATION FOR BIDS DATED OCTOBER 15, 1964, CALLED FOR A BASE BID AND FOUR ALTERNATE BIDS DESIGNATED A THROUGH D, INCLUSIVE, TO BE ADDED TO OR DEDUCTED FROM THE BASE BID. ALTERNATE A WAS AN ADDITIVE ALTERNATE, WHEREAS THE OTHER THREE ALTERNATES WERE DEDUCTIVE. ALL ELEVEN BIDDERS, EXCEPT BAXTER CONSTRUCTION COMPANY, SUBMITTED BIDS ON THE BASE BID AS WELL AS ON EACH ALTERNATE. BAXTER SUBMITTED BIDS ON ALL BUT ALTERNATE B, PROVIDING FOR DEDUCTION FROM THE BASE BID OF THE AMOUNT FOR "RICE HULL FILL IN LIEU OF PAPER FORMS BENEATH FIRST FLOOR STRUCTURAL CONCRETE SLAB, AS SHOWN AND SPECIFIED.' SINCE THE AGGREGATE AMOUNT OF THE BASE BID AND ADDITIVE ALTERNATE A OF EIGHT OF THE ELEVEN BIDDERS WERE ALL WITHIN THE APPROPRIATION AVAILABLE FOR THIS PROJECT, IT WAS DETERMINED THAT AWARD COULD BE MADE FOR THE BASE BID AND ALTERNATE A WITHOUT THE NECESSITY OF CONSIDERING THE DEDUCTIVE ALTERNATES B, C AND D. THEREFORE, SINCE BAXTER IS THE APPARENT LOW BIDDER ON THE BASE BID AND ALTERNATE A AT A TOTAL OF $894,500 AS COMPARED TO $900,300 BID BY WARRIOR ON THE SAME COMBINATION, IT IS PROPOSED THAT AWARD BE MADE TO IT.

YOU PROTEST SUCH PROPOSED ACTION ON THE BASIS THAT BAXTER'S FAILURE TO SUBMIT A BID ON ALTERNATE B MAKES ITS BID NONRESPONSIVE TO THE INVITATION AND THEREFORE NOT PROPERLY FOR CONSIDERATION. IT IS YOUR FURTHER CONTENTION THAT DIFFERENT MEANS OF CONSTRUCTION PROPOSED IN ALTERNATE B "COULD NOT BE CONSTRUED AS A MEANS OF REDUCING THE COST OF THE BUILDING" IN THE EVENT OF THE INSUFFICIENCY OF FUNDS FOR THE LOWEST BASE BID SUBMITTED, BUT WAS INTENDED AS A "MEANS OF DETERMINING WHICH OF THE TWO METHODS WOULD BE CHEAPER ON AN EQUAL BASIS," THEREBY MAKING SUBMISSION OF A BID ON THAT ALTERNATE AS IMPORTANT AS SUBMISSION OF A BASE BID. AS TO THE LATTER CONTENTION, WE INVITE YOUR ATTENTION TO THE FOLLOWING PERTINENT PORTION OF SECTION 2--- PARAGRAPH 2-07, ALTERNATE OF THE SPECIAL CONDITIONS OF THE INVITATIONS:

"/B) THE LUMP SUM BID REFLECTS THE DESIRED REQUIREMENTS FOR THE PROJECT AS SHOWN AND SPECIFIED. ALTERNATES PROVIDE FOR CERTAIN ADDITIONS, OMISSIONS OR SUBSTITUTIONS AT THE OPTION OF THE GOVERNMENT.'

UNDER THE DESCRIPTION OF ALTERNATE B IN THE BID SCHEDULE THERE APPEARED THE WORDS "DEDUCT FROM BASE BID," FOLLOWED BY LINES FOR INSERTION OF FIGURES.

THE FOLLOWING EXCERPT FROM THE ADMINISTRATIVE REPORT PREPARED IN RESPONSE TO YOUR PROTEST SUMS UP THE AGENCY'S POSITION WITH REGARD TO THE MATERIALITY OF ALTERNATE B:

"THE PURPOSE OF REQUESTING AN ALTERNATE IS TWOFOLD; FIRST, TO PERMIT THE GOVERNMENT, IN THE EVENT THE LOWEST LUMP SUM OR BASE BID EXCEEDS THE LIMITATION OF COST OF THE PROJECT, TO MAKE SUBSTITUTIONS OR OMISSIONS OF CERTAIN FEATURES IN THE SPECIFICATIONS TO ALLOW CONSTRUCTION OF THE PROJECT WITHIN THE LIMIT OF COST; AND SECOND, TO PERMIT THE GOVERNMENT, IF THE LOWEST BID COMES WITHIN THE LIMIT OF COST, TO CHOOSE ALTERNATES TO IMPROVE THE PROJECT BY SUBSTITUTIONS FOR OR ADDITIONS TO THE MATERIALS OR FEATURES UPON WHICH THE LUMP SUM OR BASE BID WAS BASED.

"THE BASE BID OF ALL BUT THE LAST THREE BIDDERS CAME WITHIN THE LIMIT OF COST FOR THIS PROJECT AS APPEARS IN THE ATTACHED STATEMENT OF ACCOUNT. VIEW OF THIS, IT IS PROPOSED TO REJECT ALL ALTERNATES COVERING OMISSIONS AND TO ACCEPT ALTERNATE A INVOLVING AN ADDITION, VIZ., ADDING MAILSTER SHED AND GSA STORAGE ROOM 133-A, AS SHOWN AND SPECIFIED.'

WE THINK IT IS CLEAR FROM THE FOREGOING THAT ALTERNATE B WAS INTENDED AS A CHEAPER SUBSTITUTE FOR THE MATERIAL DESIRED IN THIS CONSTRUCTION IN THE AVAILABLE FUNDS WOULD NOT PERMIT THE FIRST CHOICE, AND THAT SINCE AMPLE FUNDS WERE AVAILABLE THERE COULD BE NO VALID OBJECTION TO THE GOVERNMENT'S DECISION TO REJECT ALTERNATE B.

OTHER PROVISIONS OF THE INVITATION, IN ADDITION TO WHAT HAS HERETOFORE BEEN REFERRED TO, RELEVANT TO YOUR PROTEST ARE AS FOLLOWS:

"STANDARD FORM 22, SECTION 5. PREPARATION OF BIDS.

"/B) THE BID FORM MAY PROVIDE FOR SUBMISSION OF A PRICE OR PRICES FOR ONE OR MORE ITEMS, WHICH MAY BE LUMP SUM BIDS, ALTERNATE PRICES, SCHEDULED ITEMS RESULTING IN A BID ON A UNIT OF CONSTRUCTION OR A COMBINATION THEREOF, ETC. WHERE THE BID FORM EXPLICITLY REQUIRES THAT THE BIDDER BID ON ALL ITEMS, FAILURE TO DO SO WILL DISQUALIFY THE BID. WHEN SUBMISSION OF A PRICE ON ALL ITEMS IS NOT REQUIRED, BIDDERS SHOULD INSERT THE WORD "NO BID" IN THE SPACE PROVIDED FOR ANY ITEM ON WHICH NO PRICE IS SUBMITTED.

"STANDARD FORM 22, SECTION 10. AWARD OF CONTRACT.

"/A) AWARD OF CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

"/B) THE GOVERNMENT MAY, WHEN IN ITS INTEREST, REJECT ANY OR ALL BIDS OR WAIVE ANY INFORMALITY IN BIDS RECEIVED.

"/C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR COMBINATION OF ITEMS OF A BID, UNLESS PRECLUDED BY THE INVITATION FOR BIDS OR THE BIDDER INCLUDES IN HIS BID A RESTRICTIVE LIMITATION.'

THE QUESTION OF A BIDDER'S RESPONSIVENESS TO AN INVITATION UNDER CIRCUMSTANCES SIMILAR TO THOSE PRESENT IN THE INSTANT CASE HAS FREQUENTLY BEEN BEFORE OUR OFFICE FOR CONSIDERATION. IN ONE SUCH CASE, 40 COMP. GEN. 321, 324, WE STATED THAT:

"WHETHER CERTAIN PROVISIONS OF AN INVITATION FOR BIDS ARE TO BE CONSIDERED MANDATORY OR DISCRETIONARY DEPENDS UPON THE MATERIALITY OF SUCH PROVISIONS AND WHETHER THEY WERE INSERTED FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT OR FOR THE PROTECTION OF THE RIGHTS OF BIDDERS. UNDER AN ADVERTISED PROCUREMENT ALL QUALIFIED BIDDERS MUST BE GIVEN AN EQUAL OPPORTUNITY TO SUBMIT BIDS WHICH ARE BASED UPON THE SAME SPECIFICATIONS, AND TO HAVE SUCH BIDS EVALUATED ON THE SAME BASIS. TO THE EXTENT THAT WAIVER OF THE PROVISIONS OF AN INVITATION FOR BIDS MIGHT RESULT IN FAILURE OF ONE ORE MORE BIDDERS TO ATTAIN THE EQUAL OPPORTUNITY TO COMPETE ON A COMMON BASIS WITH OTHER BIDDERS, SUCH PROVISION MUST BE CONSIDERED MANDATORY. HOWEVER, THE CONCEPT OF FORMALLY ADVERTISED PROCUREMENT, INSOFAR AS IT RELATES TO THE SUBMISSION AND EVALUATION OF BIDS, GOES NO FURTHER THAN TO GUARANTEE EQUAL OPPORTUNITY TO COMPETE AND EQUAL TREATMENT IN THE EVALUATION OF BIDS. IT DOES NOT CONFER UPON BIDDERS ANY RIGHT TO INSIST UPON THE ENFORCEMENT OF PROVISIONS IN AN INVITATION, THE WAIVER OF WHICH WOULD NOT RESULT IN AN UNFAIR COMPETITIVE ADVANTAGE TO OTHER BIDDERS BY PERMITTING A METHOD OF CONTRACT PERFORMANCE DIFFERENT FROM THAT CONTEMPLATED BY THE INVITATION OR BY PERMITTING THE BID PRICE TO BE EVALUATED UPON A BASIS NOT COMMON TO ALL BIDS. SUCH PROVISIONS MUST THEREFORE BE CONSTRUED TO BE SOLELY FOR THE PROTECTION OF THE INTERESTS OF THE GOVERNMENT AND THEIR ENFORCEMENT OR WAIVER CAN HAVE NO EFFECT UPON THE RIGHTS OF BIDDERS TO WHICH THE RULES AND PRINCIPLES APPLICABLE TO FORMAL ADVERTISING ARE DIRECTED. TO THIS END, THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY HELD THAT WHERE DEVIATIONS FROM, OR FAILURES TO COMPLY WITH, THE PROVISIONS OF AN INVITATION DO NOT AFFECT THE BID PRICE UPON WHICH A CONTRACT WOULD BE BASED OR THE QUANTITY OR QUALITY OF THE WORK REQUIRED OF THE BIDDER IN THE EVENT HE IS AWARDED A CONTRACT, A FAILURE TO ENFORCE SUCH PROVISION WILL NOT INFRINGE UPON THE RIGHTS OF OTHER BIDDERS AND THE FAILURE OF A BIDDER TO COMPLY WITH THE PROVISION MAY BE CONSIDERED AS A MINOR DEVIATION WHICH CAN BE WAIVED AND THE BID CONSIDERED RESPONSIVE.'

IN THAT CASE, THE SUBJECT INVITATION FOR BIDS CONTAINED INSTRUCTIONS TO BIDDERS WHICH STATED THAT BIDS "MUST BE SUBMITTED ON ALL ITEMS" AND THAT "BIDS NOT SO SUBMITTED WILL BE CONSIDERED NON-RESPONSIVE AND WILL BE REJECTED.' NEVERTHELESS, WE HELD THAT IT WAS IMPROPER TO REJECT THE BID OF THE LOW BIDDER FOR FAILING TO BID ON AN ITEM THAT WAS NOT PART OF THE EVALUATION FORMULA AND UNNECESSARY TO DETERMINE THE LOW BIDDER, SINCE THE ITEM IN QUESTION DID NOT AFFECT THE SUBSTANCE OF THE BID. FOR OTHER SIMILAR CASES SEE, 26 COMP. GEN. 49; 34 ID. 633; 37 ID. 529; 42 ID. 61; B- 151276, MAY 28, 1963.

IN CONFORMITY WITH THE RATIONALE OF THESE AND OTHER SIMILAR CASES, WE HOLD THAT THE FAILURE OF THE BAXTER BID TO INCLUDE A BID ON ALTERNATE B, WHICH AFFECTS NEITHER THE PRICE, QUANTITY OR QUALITY OF THE WORK REQUIRED, IS NOT PREJUDICIAL TO OTHER BIDDERS AND MAY PROPERLY BE WAIVED.