B-155835, AUG. 31, 1965

B-155835: Aug 31, 1965

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DUDLEY AND EASTERWOOD: REFERENCE IS MADE TO YOUR LETTER OF APRIL 15. SUCH AREAS WERE DESIGNATED ON DRAWING NO. 32502. USE OF THE RACCOON CREEK AREA WAS PERMISSIBLE AT ANY TIME DURING THE CONTRACT. RACCOON CREEK AND MONSANTO DISPOSAL AREAS WERE FURNISHED AS A PART OF THE SPECIFICATIONS UNDER PARAGRAPH SC-3 OF THE INVITATION. ADDITIONAL SPECIFICATIONS FOR THE SUN OIL DISPOSAL AREA WERE SET FORTH IN DETAIL UNDER PARAGRAPH TP-4H. WHILE A SEPARATE DRAWING WAS NOT FURNISHED ON THE PEDRICKTOWN DISPOSAL AREA. WHICH WAS THE LARGEST OF THE AREAS CONCERNED AND. WAS CAPABLE OF RECEIVING THE ENTIRE SPOIL MATERIALS. GENERAL INSTRUCTIONS APPLICABLE TO THE DEVELOPMENT OF THE DISPOSAL AREAS WERE SET FORTH UNDER PARAGRAPH TP-4K.

B-155835, AUG. 31, 1965

TO MCNUTT, DUDLEY AND EASTERWOOD:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 15, 1965, AND TO YOUR SUBSEQUENT COMMUNICATIONS WRITTEN ON BEHALF OF AMERICAN DREDGING COMPANY IN CONNECTION WITH THAT FIRM'S PROTEST OF MARCH 23, 1965, AGAINST THE AWARD OF A CONTRACT TO BAUER DREDGING AND CONSTRUCTION COMPANY, INC., FOR DREDGING PART III OF MARCUS HOOK ANCHORAGE IN THE DELAWARE RIVER UNDER IFB NO. CIVENG-36-109-65-37 ISSUED BY THE ARMY CORPS OF ENGINEERS, PHILADELPHIA DISTRICT, ON NOVEMBER 23, 1964.

THE INVITATION FOR BIDS AS ORIGINALLY ISSUED PROVIDED UNDER PARAGRAPH TP- 4A, CONCERNING THE DEPOSITING OF THE MATERIAL EXCAVATED FROM THE ANCHORAGE, THAT BIDS WOULD BE BASED ON UTILIZING ONLY THOSE DISPOSAL AREAS DESCRIBED ON THE CONTRACT DRAWINGS. SUCH AREAS WERE DESIGNATED ON DRAWING NO. 32502, GENERAL PLAN, AS THE PEDRICKTOWN, SUN OIL COMPANY, MONSANTO CHEMICAL COMPANY AND RACCOON CREEK DISPOSAL AREAS. PARAGRAPH TP-4B REQUIRED THE CONTRACTOR TO FILL THE MONSANTO AND THE SUN OIL DISPOSAL AREAS TO THE RESPECTIVE ELEVATIONS INDICATED ON THE DRAWINGS AND FURTHER PROVIDED THAT THE CONTRACTOR WOULD NOT BE PERMITTED TO USE THE PEDRICKTOWN DISPOSAL AREA UNTIL THE MONSANTO AND SUN OIL AREAS HAD BEEN FILLED. USE OF THE RACCOON CREEK AREA WAS PERMISSIBLE AT ANY TIME DURING THE CONTRACT. INDIVIDUAL DRAWINGS ON THE SUN OIL, RACCOON CREEK AND MONSANTO DISPOSAL AREAS WERE FURNISHED AS A PART OF THE SPECIFICATIONS UNDER PARAGRAPH SC-3 OF THE INVITATION, AND ADDITIONAL SPECIFICATIONS FOR THE SUN OIL DISPOSAL AREA WERE SET FORTH IN DETAIL UNDER PARAGRAPH TP-4H. WHILE A SEPARATE DRAWING WAS NOT FURNISHED ON THE PEDRICKTOWN DISPOSAL AREA, WHICH WAS THE LARGEST OF THE AREAS CONCERNED AND, SUBJECT TO A MINOR EXTENSION OF EMBANKMENTS, WAS CAPABLE OF RECEIVING THE ENTIRE SPOIL MATERIALS, GENERAL INSTRUCTIONS APPLICABLE TO THE DEVELOPMENT OF THE DISPOSAL AREAS WERE SET FORTH UNDER PARAGRAPH TP-4K. SUCH INSTRUCTIONS REQUIRED THE CONTRACTOR TO CONSTRUCT NECESSARY SPOIL RETAINING BANKS FOR CONFINING THE EXCAVATED MATERIAL AND TO DISTRIBUTE THE DREDGED MATERIALS IN A UNIFORM MANNER WITH THE UTILIZED DISPOSAL AREAS; INCLUDED ADVICE TO THE PROSPECTIVE CONTRACTORS THAT EXISTING EMBANKMENTS AND WASTE WEIRS MIGHT REQUIRE REPAIR AND EXTENSION BEFORE MATERIALS UNDER THE SUBJECT INVITATION WERE DEPOSITED IN THE AREAS SHOWN ON THE CONTRACT DRAWINGS; AND FURTHER PROVIDED THAT THE CONTRACTOR SHOULD SUBMIT A PLAN FOR DEVELOPMENT OF THE AREAS TO THE CONTRACTING OFFICER FOR APPROVAL PRIOR TO THE CONSTRUCTION OF EMBANKMENTS, WASTE WEIRS AND DRAINAGE FACILITIES FOR ANY OF THE PROPOSED DISPOSAL AREAS.

BY TELEGRAM DATED DECEMBER 23, 1964, AMERICAN DREDGING COMPANY PROTESTED TO THIS OFFICE AND TO THE CHIEF OF ENGINEERS AGAINST THE MANDATORY REQUIREMENT OF THE INVITATION THAT BIDS BE BASED ON UTILIZING ONLY GOVERNMENT-FURNISHED SPOIL DISPOSAL AREAS, AND REQUESTED THAT SUCH RESTRICTION CONTAINED IN PARAGRAPH TP-4 BE DELETED SO AS TO PERMIT THE SUBMISSION OF BIDS BASED ON THE USE OF ALTERNATE OR CONTRACTOR-FURNISHED DISPOSAL AREAS IN ACCORDANCE WITH THE POLICY RECOMMENDATIONS MADE TO THE SECRETARY OF THE ARMY IN OUR DECISION B 153004, APRIL 1, 1964.

ON FEBRUARY 5, 1965, A SUBSTITUTION FOR THE ENTIRE PARAGRAPH TP-4 WAS MADE BY AMENDMENT NO. 7 TO THE INVITATION, AND BY LETTER OF FEBRUARY 10 AMERICAN DREDGING ADVISED THIS OFFICE THAT THE FIRM'S PROTEST AGAINST THE IFB HAD BEEN RESOLVED SATISFACTORILY WITH THE CHIEF OF ENGINEERS OF THE ARMY.

IN ITS FINAL FORM PARAGRAPH TP-4 PROVIDED IN PART AS FOLLOWS:

"A. THE MATERIAL EXCAVATED SHALL BE TRANSPORTED, DEPOSITED, CONFINED AND GRADED TO DRAIN WITHIN THE LIMITS OF THE DISPOSAL AREAS DESIGNATED ON THE DRAWINGS. BIDS RECEIVED WILL BE BASED ON UTILIZING THE ABOVE DESCRIBED AREAS. THE USE OF MATERIAL FROM REQUIRED DREDGING FOR CONSTRUCTION OF DIKES WILL NOT BE PERMITTED. REHANDLING WILL NOT BE PERMITTED. PUMPING OF DIKES WILL NOT BE PERMITTED.

"B. IF A DISPOSAL AREAS OTHER THAN THAT STIPULATED IN THE SPECIFICATIONS IS PROPOSED, THE CONTRACTING OFFICER IN MAKING THE AWARD WILL CONSIDER THE ACCEPTANCE OF SUCH ALTERNATE AREA WHICH REFLECTS AN ITEM ADJUSTMENT OF THE BID PRICE IN THE INTEREST OF THE GOVERNMENT. IF, AFTER THE AWARD OF THE CONTRACT, A DISPOSAL AREA OTHER THAN THAT STIPULATED IN THESE SPECIFICATIONS IS PROPOSED, ITS ACCEPTANCE WILL BE SUBJECT TO THE APPROVAL OF THE CONTRACTING OFFICER AFTER AN ADJUSTMENT OF THE CONTRACT PRICE IF FOUND NECESSARY BY THE CONTRACTING OFFICER TO PROTECT THE GOVERNMENT INTEREST. THE CONTRACTOR SHALL OBTAIN THE WRITTEN CONSENT OF THE OWNERS OF THE SUBSTITUTE GROUNDS AND FURNISH EVIDENCE THEREOF TO THE CONTRACTING OFFICE. ALL EXPENSES INCURRED IN CONNECTION WITH PROVIDING AND MAKING AVAILABLE SUCH DISPOSAL AREAS SHALL BE BORNE BY THE CONTRACTOR, AND ALL MATERIALS DEPOSITED THEREON, AND ALL OPERATIONS IN CONNECTION THEREWITH SHALL BE AT THE CONTRACTOR'S RISK. SUBSTITUTION OF DISPOSAL AREAS IS NOT CONSIDERED TO BE "VALUE ENGINEERING" WITHIN THE MEANING OF THE VALUE ENGINEERING INCENTIVE CLAUSE OF THE CONTRACT, AND THE GOVERNMENT WILL BE ENTITLED TO THE FULL AMOUNT OF ANY REDUCTION IN CONTRACT COST FOR PERMITTING THE USE OF ALTERNATE DISPOSAL AREAS.

"C. IF THE CONTRACTOR USES THE MONSANTO CHEMICAL CO. OR THE SUN OIL CO. DISPOSAL AREAS, HE MUST THEN FILL THESE AREAS TO THE REQUIRED ELEVATIONS, WITH A PERMISSIBLE VERTICAL TOLERANCE OF PLUS OR MINUS 1.0 FOOT, AND TO THE FULL EXTENT INDICATED ON THE DRAWINGS.'

AS IN THE CASE OF THE ORIGINAL PARAGRAPH, THE SUBSTITUTED PARAGRAPH CONTAINED DETAILED SPECIFICATIONS FOR THE SUN OIL DISPOSAL AREA UNDER SUBPARAGRAPH H, AND THE AFOREMENTIONED GENERAL INSTRUCTIONS APPLICABLE TO THE DEVELOPMENT OF THE DISPOSAL AREAS WERE SET FORTH IN THE NEW PARAGRAPH UNDER SUBPARAGRAPH N.

THREE BIDS WERE RECEIVED AND OPENED ON MARCH 16, 1965, AS FOLLOWS:

TABLE

DISPOSAL AREA

BIDDER AMOUNT PROPOSED TO BE USED BAUER DREDGING AND

CONSTRUCTION CO. $3,438,202PEDRICKTOWN AMERICAN DREDGING CO.

5,471,044 MONSANTO, SUN OIL

AND PEDRICKTOWN

(ALTERNATE BID)( 4,198,090) (CONTRACTOR FURNISHED) WESTERN CONTRACTING CORP. 5,533,960 NO AREA DESIGNATED GOVERNMENT ESTIMATE 4,391,434

BY TELEGRAM TO THIS OFFICE DATED MARCH 23, 1965, AMERICAN DREDGING PROTESTED ANY AWARD TO BAUER ON THE GROUNDS "THAT ITS BASE BID WAS NONRESPONSIVE TO THE INVITATION IN THAT IT MATERIALLY DEVIATED FROM THE SPECIFICATION PROVISIONS OF TP-4A. BAUERS BID FOR ITEM NO. 2 WAS NOT BASED ON UTILIZING THE "DISPOSAL AREAS DESIGNATED ON THE DRAWINGS.' ACCEPT THE LOW BID BASED ON THE USE OF ONLY ONE OF THE FOUR DESIGNATED DISPOSAL AREAS WOULD BE PREJUDICIAL TO OTHER BIDDERS.' AFTER REVIEWING THE RECORD IN THE MATTER, THE OFFICE OF THE CHIEF OF ENGINEERS REPORTED TO THIS OFFICE ON APRIL 1, 1965, THAT AWARD WAS BEING AUTHORIZED TO THE LOW RESPONSIVE AND RESPONSIBLE BIDDER INASMUCH AS THE PROTEST WAS CONSIDERED TO BE WITHOUT MERIT FOR THE PRINCIPAL REASON THAT PARAGRAPH TP-4A, AS AMENDED, PERMITTED A BIDDER TO USE ANY NUMBER OF THE DESIGNATED DISPOSAL AREAS AND THAT ANY CONTENTION THAT SUCH PARAGRAPH REQUIRED USE OF ALL THE AREAS, OR THE MONSANTO AND SUN OIL AREAS IN PARTICULAR, WAS REFUTED BY SUBPARAGRAPH C WHICH PROVIDED THAT IF THE CONTRACTOR USES THE MONSANTO OR THE SUN OIL DISPOSAL AREAS, HE MUST THEN FILL THOSE AREAS TO THE REQUIRED ELEVATIONS. IT WAS ALSO NOTED IN THE REPORT THAT AMERICAN PROPOSED TO USE ONLY THREE OF THE FOUR AREAS IN ITS BASE BID. THE CONTRACT WAS THEREAFTER AWARDED TO BAUER DREDGING AND CONSTRUCTION CO., INC., ON APRIL 6, 1965, AND PROVIDED FOR THE DREDGING OF AN ESTIMATED 8,006,000 CUBIC YARDS OF MATERIAL WITH PLACEMENT THEREOF IN THE PEDRICKTOWN DISPOSAL AREA.

IN YOUR LETTER OF APRIL 15 YOU STATE:

"THE BASIS OF THE PROTEST IS THAT THE SPECIFICATIONS (TP-4) PERTAINING TO THE USE OF DISPOSAL AREAS FOR MATERIALS TO BE DREDGED WERE AMBIGUOUS, CONFUSING AND MISLEADING IF, BY AMENDMENT NO. 7 TO THE SAID INVITATION, THE GOVERNMENT INTENDED TO PERMIT CONTRACTORS TO SUBMIT BASE BIDS ON UTILIZING THE PEDRICKTOWN DISPOSAL AREA PRIOR TO FILLING THE SUN OIL CO. AND MONSANTO CHEMICAL CO. DISPOSAL AREAS TO THE REQUIRED ELEVATIONS, AND TO THE FULL EXTENT INDICATED ON THE CONTRACT DRAWINGS.'

YOU CONTEND THAT THE CORPS OF ENGINEERS DID NOT ACTUALLY INTEND TO PERMIT THE USE OF THE PEDRICKTOWN DISPOSAL AREA, ALONE, WHICH USE YOU ALLEGE WOULD HAVE REQUIRED A DETAILED DRAWING OF THE AREA AND A SHOWING OF PARTICULAR REQUIREMENTS INVOLVED IN THE AREA'S USE, AND YOU SAY THAT YOU ARE CONFIDENT THAT A REVIEW OF THE GOVERNMENT'S ESTIMATE FOR THE CONTRACT WILL SHOW THAT SUCH ESTIMATE WAS BASED ON FILLING THE MONSANTO AND SUN OIL DISPOSAL AREAS TO THE ELEVATIONS SHOWN ON THE DRAWINGS PRIOR TO PLACING DISPOSAL MATERIAL IN OTHER AREAS. YOU ALSO ALLEGE THAT THE CORPS OF ENGINEERS REPRESENTATIVES HAD AN AFFIRMATIVE DUTY TO CLARIFY THE MATTER TO AMERICAN DREDGING COMPANY SINCE THEY KNEW THAT THE COMPANY WAS UNDER THE IMPRESSION THAT THE SPECIFICATIONS REQUIRED THAT BASE BIDS BE SUBMITTED ON FILLING THE MONSANTO AND SUN OIL AREAS PRIOR TO USE OF PEDRICKTOWN BY A STATEMENT MADE BY THE FIRM'S PRESIDENT, MR. MAYLIN H. GREASER, AT A MEETING WITH THE DISTRICT ENGINEER THAT (QUOTING FROM YOUR LETTER OF JUNE 22) "THE WAY THE SPECIFICATIONS WERE WRITTEN FOR THIS JOB (AS AMENDED BY AMENDMENT NO. 7) HIS COMPETITORS WOULD THINK THAT THE SPECIFICATIONS WERE PREPARED BY AMERICAN DREDGING CO.' FINALLY, YOU ASSERT THAT NOTWITHSTANDING THAT ITS BID WAS BASED ON THE UTILIZATION OF THE PEDRICKTOWN AREA, BAUER HAS BEEN NEGOTIATING WITH THE CORPS OF ENGINEERS TO PLACE 8,000,000 CUBIC YARDS OF THE SPOIL MATERIAL IN THE MONSANTO AREA (WITH PLACEMENT OF THE EXCESS MATERIAL IN THE RACCOON CREEK AREA) AND THAT SUCH DISPOSAL WILL BE ACCOMPLISHED IN CONTRAVENTION OF PARAGRAPH TP-4B BY PERMITTING BAUER TO PLACE THE FILL TO AN AVERAGE ELEVATION OF 30 FEET IN THE GOVERNMENT-FURNISHED AREA RATHER THAN TO THE 18 FEET ELEVATION SPECIFIED IN THE DRAWING.

IN ISSUING AMENDMENT NO. 7, THE CORPS OF ENGINEERS NOT ONLY PROVIDED FOR THE SUBMISSION OF ALTERNATE BIDS BASED ON CONTRACTOR-FURNISHED DISPOSAL AREAS, BUT ALSO DELETED FROM THE ORIGINAL VERSION OF PARAGRAPH TP-4 THE SPECIFIC REQUIREMENTS THAT THE MONSANTO AND THE SUN OIL AREAS BE FILLED AND THAT SUCH FILLING BE ACCOMPLISHED BEFORE ANY USE WAS MADE OF THE PEDRICKTOWN AREA. AS THE AMENDMENT PROVIDED IN SUBPARAGRAPH B FOR CERTAIN ACTIONS "IF" A DISPOSAL AREA OTHER THAN THOSE STIPULATED WAS PROPOSED, SO DID SUBPARAGRAPH C PROVIDE FOR CERTAIN ACTIONS "IF" USE WAS MADE OF THE MONSANTO OR THE SUN OIL AREAS. CONTRARY TO YOUR CONTENTION WE PERCEIVE NOTHING IN THE INVITATION WHICH PRECLUDES THE GOVERNMENT FROM CONSIDERING A BID SUBMITTED ON THE USE OF THE PEDRICKTOWN AREA ALONE NOR DO WE AGREE THAT THE CLEAR ELECTION PERMITTED BIDDERS BY PARAGRAPH TP-4C TO USE, OR NOT TO USE, THE MONSANTO OR THE SUN OIL AREAS IS NULLIFIED ELSEWHERE IN THE INVITATION. FURTHER, WE FEEL THAT THE INTENTION OF THE CORPS OF ENGINEERS IS EFFECTIVELY EXPRESSED IN PARAGRAPH 18 OF THE ADMINISTRATIVE REPORT DATED APRIL 1, 1965, AS FOLLOWS:

"THE PRINCIPAL APPARENT PURPOSE OF THIS AMENDED INVITATION, AS CONCERNS DISPOSAL AREAS COVERED BY THE BASE BID, IS TO GET THE DREDGED MATERIAL PUT ASHORE AND SECURED, AT THE LOWEST COST TO THE GOVERNMENT. FOR THIS REASON, THE MAXIMUM NUMBER OF REASONABLY AVAILABLE AREAS WERE OFFERED BY THE GOVERNMENT FOR USE. THE WIDEST DISCRETION WAS ALLOWED THE BIDDERS, AS TO WHICH AREA OR AREAS WOULD AFFORD THEM THE LOWEST COSTS. FOR THE BIDDERS' CONSIDERATION WERE SUCH MATTERS AS RELATIVE DISTANCES, CASE OF DEVELOPMENT, EMBANKMENTS REQUIRED, KIND OF EQUIPMENT TO BE USED, CAPACITIES OF THE AREAS, AND THE LIKE. ORIGINALLY, THE PRINCIPAL APPARENT PURPOSE OF THE INVITATION WAS TO UTILIZE FIRST THE SUN OIL AND MONSANTO AREAS. AS HERETOFORE INDICATED, THAT PURPOSE WAS ALTOGETHER ABANDONED BY ISSUANCE OF AMENDMENT NO. 7. MANIFESTLY, IT IS MORE COSTLY TO DEVELOP AND TO USE TWO OR MORE AREAS THAN TO DEVELOP AND TO USE ONE AREA, SUBJECT OF COURSE TO OFFSETTING SAVINGS AS REGARDS PUMPING DISTANCE. THIS AGAIN WAS A MATTER OF CONSIDERATION BY THE BIDDERS. THE INVITATION, ADEQUATELY CONSIDERED, REVEALS NO PRINCIPAL APPARENT PURPOSE TO REQUIRE THE USE OF MORE THAN ONE DISPOSAL AREA. ON THE CONTRARY, THE PRINCIPAL APPARENT PURPOSE WAS TO UTILIZE ONE AREA,OR TWO, OR THREE, OR ALL FOUR, IN WHATEVER MANNER WOULD RESULT IN THE LOWEST COST TO THE BIDDER AND LOWEST PRICE TO THE GOVERNMENT.'

CONCERNING YOUR EXPRESSED BELIEF THAT THE CORPS OF ENGINEERS ACTUALLY BASED ITS ESTIMATE UNDER THE INVITATION, AS AMENDED, ON FILLING BOTH THE MONSANTO AND THE SUN OIL DISPOSAL AREAS PURSUANT TO THE ORIGINAL INVITATION'S REQUIREMENTS, THE AREAS ON WHICH THE GOVERNMENT BASED ITS ESTIMATE ARE SHOWN BY THE FOLLOWING EXCERPT FROM THE PERTINENT DOCUMENTS CONCERNED: "1. A GOVERNMENT ESTIMATE FOR THE SUBJECT WORK WAS PREVIOUSLY SUBMITTED ON 10 DECEMBER 1964 AND RETURNED APPROVED BY NAD BY 1ST IND DATED 15 DEC. 64. THIS REVISED GOVERNMENT ESTIMATE SUPERSEDED THE PREVIOUSLY SUBMITTED ESTIMATE AND IS NECESSITATED BY CHANGES IN DISPOSAL AREA REQUIREMENTS FOR THE SUBJECT WORK WHICH ARE COVERED UNDER AMENDMENTS ISSUED SUBSEQUENT TO PREPARATION OF THE PREVIOUSLY APPROVED GOVERNMENT ESTIMATE.

* * * * * * * "3. THE ESTIMATE IS BASED ON THE USE OF THE FOLLOWING GOVERNMENT FURNISHED DISPOSAL AREAS: (1) MONSANTO CHEMICAL CO. DISPOSAL AREA, AND (2) PEDRICKTOWN DISPOSAL AREA, AND WITH DISTRIBUTION OF MATERIAL TO BE REMOVED FROM THE ANCHORAGE AS FOLLOWS: 3,250,000 C.Y. IN (1) AND 5,146,000 C.Y. IN (2) ( TOTAL ESTIMATED CAPACITY OF PEDRICKTOWN IS 9,200,000 C.Y.). WITH THIS DISTRIBUTION OF MATERIAL (1) WILL BE FILLED TO THE REQUIRED ELEVATION OF PLUS 18 FT. INDICATED ON CONTRACT DRAWINGS PRIOR TO THE USE OF (2) FOR THE REMAINING 5,146,000 C.Y. OF MATERIAL, IN ACCORDANCE WITH THE REQUIREMENTS OF PARAGRAPH TP-4 C (AMENDMENT NO. 7) OF THE SPECIFICATIONS. DISPOSAL AREA CONSTRUCTION COSTS INCLUDING SPECIAL REQUIREMENTS FOR MONSANTO CHEMICAL CO. GRADING AND DISPOSAL AREA HAVE BEEN INCLUDED IN THE ESTIMATE AND ALSO REMOVAL OF TWO MOORING DOLPHINS IN THE WIDENED PORTION OF THE ANCHORAGE.

"4. THE AFOREMENTIONED PLAN FOR DISPOSAL OF MATERIAL, (MONSANTO AND PEDRICKTOWN), WAS SELECTED AFTER MAKING PRELIMINARY COMPARISONS OF COSTS FOR ALL FEASIBLE COMBINATIONS OF DISPOSAL AREAS AND WITH DISPOSAL AREA CONSTRUCTION IN ACCORDANCE WITH SPECIFIED REQUIREMENTS.'

ONE OF THE ALTERNATIVE PLANS CONSIDERED BY THE ENGINEERS IN MAKING THE REVISED ESTIMATE WAS FOR THE PLACEMENT OF ALL OF THE DREDGED MATERIAL IN THE PEDRICKTOWN AREA.

WE FEEL THAT THE ABOVE FACTORS RELATING TO THE PREPARATION OF THE ESTIMATE SHOULD DISPEL ANY DOUBT THAT THE CORPS OF ENGINEERS DID NOT RECOGNIZE AND CONTEMPLATE THE CHANGES IN DISPOSAL AREA REQUIREMENTS EFFECTED BY THE AMENDMENTS TO THE INVITATION.

REGARDING THE OMISSION FROM THE INVITATION OF A DETAILED DRAWING AND A SHOWING OF THE SPECIAL OR PARTICULAR REQUIREMENTS APPLICABLE TO THE USE OF THE PEDRICKTOWN DISPOSAL AREA, THE CORPS OF ENGINEERS HAS REPORTED THAT, UNLIKE THE USN OIL AND MONSANTO AREAS, THAT AREA WAS NOT SUBJECT TO ANY LIMITATIONS OR RESTRICTIONS IMPOSED BY CONTRACT WITH THE OWNERS; THAT USE OF ONLY THE PEDRICKTOWN AREA WOULD HAVE ENTAILED NO UNUSUAL PREPARATIONS AND IT DID NOT CONSIDER THAT ADDITIONAL FURTHER INFORMATION WAS NECESSARY INASMUCH AS THE PEDRICKTOWN AREA AS SHOWN ON THE GENERAL PLAN DRAWING WAS AMPLE (WITH MINOR ADDITIONAL BANKING FROM MATERIALS AVAILABLE ON THE SITE) TO RECEIVE ALL OF THE DREDGED MATERIAL, AND THE INVITATION'S GENERAL PROVISIONS FOR DEVELOPING DISPOSAL AREAS (PARAGRAPH TP-4N), WHICH INCLUDED ADVICE TO THE BIDDERS THAT EXISTING EMBANKMENTS MIGHT REQUIRE REPAIR AND EXTENSION, WERE VIEWED AS BEING ADEQUATE TO COVER ANY NECESSARY DEVELOPMENT OF THAT AREA. THE CORPS OF ENGINEERS ALSO NOTES THAT A BIDDER ACKNOWLEDGES UNDER PARAGRAPH GC-3 OF THE GENERAL CONDITIONS THAT HE HAS SATISFIED HIMSELF AS TO THE GENERAL AND LOCAL CONDITIONS BEARING UPON THE DISPOSAL OF MATERIALS, AND IT POINTS OUT THAT AMERICAN DREDGING COMPANY WAS NOT PREJUDICED BY THE LACK OF FURTHER INFORMATION IN THE INVITATION ON THE PEDRICKTOWN AREA SINCE THAT FIRM HAS A DETAILED AND EXTENSIVE KNOWLEDGE OF THE AREA.

WITH REFERENCE TO THE MEETING BETWEEN THE CORPS OF ENGINEERS REPRESENTATIVES AND THE PRESIDENT OF AMERICAN DREDGING COMPANY, THE CORPS ADVISES:

"THE MEETING TO WHICH THE PROTESTER REFERS WAS HELD AT HIS REQUEST TO RESOLVE A DISPUTE WHICH HAD ARISEN UNDER HIS MARCUS HOOK II CONTRACT, AND NOT, AS THE PROTESTER IMPLIES, TO CLARIFY THIS MARCUS HOOK III INVITATION. THE PROTESTER DID INDEED CRITICIZE THE ALLEGED HIGH COST OF RIPRAP ON THE SUN OIL DIKE. NO DISCUSSION WHATEVER OCCURRED CONCERNING MONSANTO AND SUN AREAS V. PEDRICKTOWN ALONE. THE CORPS REPRESENTATIVES DID NOT MENTION IT, NOR DID THE PROTESTER'S REPRESENTATIVES. IN VIEW OF THE PROTESTER'S SILENCE ON THE POINT, THE GOVERNMENT HAD NO KNOWLEDGE OF ANY KIND AS TO THE PROTESTER'S "IMPRESSION" , FELT NO "NATURAL" COMPULSION TO RAISE THE ISSUE, DID NOT "MISLEAD" THE PROTESTER, AND OWED HIM NO "AFFIRMATIVE DUTY" TO CLARIFY THE INVITATION. NO CLARIFICATION WAS NECESSARY, AND HAD IT BEEN, THE CLARIFICATION WOULD HAVE BEEN GIVEN, NOT PRIVATELY TO THE PROTESTER IN A CONFERENCE, BUT PUBLICLY TO ALL THE BIDDERS AS AMENDMENT NO. 10. THE "AFFIRMATIVE DUTY," IN THE MANNER HERE SUGGESTED, WOULD HAVE BEEN PREJUDICIAL TO OTHER BIDDERS AND THEREFORE IMPROPER.'

WE AGREE WITH THE ABOVE CONCLUSION THAT THERE WAS NO REQUIREMENT FOR THE GOVERNMENT REPRESENTATIVES TO COMMENT ON MR. GREASER'S STATEMENT ABOUT WHAT HIS COMPETITORS WOULD THINK CONCERNING THE ORIGIN OF THE SPECIFICATIONS.

REGARDING THE POST-AWARD NEGOTIATIONS BY BAUER FOR PARTIAL SUBSTITUTION OF THE MONSANTO AND RACCOON CREEK DISPOSAL AREAS, THE DISTRICT ENGINEER REPORTS AS FOLLOWS:

"1. WE UNDERSTAND THAT, SUBSEQUENT TO AWARD, THE BAUER DREDGING AND CONSTRUCTION CO. NEGOTIATED AGREEMENTS WITH THE OWNERS TO PLACE ABOUT 6,000,000 CUBIC YARDS OF SPOIL ON LAND OWNED BY MONSANTO CHEMICAL CO., AND ABOUT 2,000,000 CUBIC YARDS OF SPOIL ON CONTIGUOUS LAND IN THE VICINITY OF RACCOON CREEK. ALTHOUGH THIS PROPOSED TRACT OVERLAPS THE GOVERNMENT- FURNISHED AREAS IN THE INVITATION, IT DIFFERS MATERIALLY, IN ACREAGE, CAPACITY, MAXIMUM ELEVATIONS, AND DIKING REQUIREMENTS. FURTHER, THE AGREEMENTS ARE BAUER'S OWN, NEGOTIATED WITHOUT GOVERNMENT PARTICIPATION. ACCORDINGLY, THE TRACT COVERED BY THE BAUER AGREEMENTS IS A PROPOSED CONTRACTOR-FURNISHED AREA.

"2. BAUER THEN ASKED THE CONTRACTING OFFICER TO PERMIT THIS CHANGE FROM PEDRICKTOWN TO THIS NEW CONTRACTOR-FURNISHED DISPOSAL AREA. NEGOTIATIONS HAVE BEEN CONDUCTED, AND ORAL AGREEMENT HAS BEEN REACHED THAT THE CHANGE WILL BE PERMITTED, AND THAT A CREDIT WILL INURE TO THE GOVERNMENT IN THE AMOUNT OF $140,000.00. THIS IS AUTHORIZED BY CONTRACT PARAGRAPH TP-4B.'

SINCE IT THUS APPEARS THAT THE PROPOSED TRACT DIFFERS MATERIALLY FROM THAT OFFERED BY THE GOVERNMENT IN THE INVITATION, ALTHOUGH IT OVERLAPS THE GOVERNMENT-FURNISHED AREAS, WE CANNOT CONCLUDE THAT IT SHOULD NOT BE VIEWED AS A DISPOSAL AREA OTHER THAN ANY OFFERED BY THE GOVERNMENT IN THE SPECIFICATIONS. HOWEVER, ANY AGREEMENT--- THE POSSIBILITY OF WHICH WAS EXPRESSLY PROVIDED FOR IN THE INVITATION--- WHICH MAY BE SUBSEQUENTLY CONCLUDED BETWEEN BAUER AND THE GOVERNMENT AS TO THE USE OF A DISPOSAL AREA OTHER THAN PEDRICKTOWN, BEING AFTER THE AWARD OF THE CONTRACT AND INVOLVING A CHANGE IN THE CONTRACT TERMS, PERTAINS TO THE ADMINISTRATION OF THE CONTRACT AND WOULD NOT APPEAR TO MATERIALLY AFFECT THE VALIDITY OF THE CONTRACT AWARD, WITH WHICH WE ARE HERE PRIMARILY CONCERNED.

IN YOUR COMMUNICATIONS CONCERNING THIS PROTEST, YOU HAVE BEEN MOST PERSISTENT IN YOUR CONTENTION THAT THE GOVERNMENT DID NOT INTEND TO PERMIT BIDDERS TO FURNISH BASE BIDS UTILIZING ONLY THE PEDRICKTOWN DISPOSAL AREA AND YOU HAVE SUGGESTED VARIOUS WAYS IN WHICH THE INVITATION COULD HAVE SHOWN MORE SPECIFICALLY THAT FILLING OF THE MONSANTO AND SUN OIL DISPOSAL AREAS WAS NOT MANDATORY AND THAT USE OF THE PEDRICKTOWN AREA, ALONE, WAS PERMITTED. WHILE WE AGREE THAT THE INVITATION, WHICH HAD NINE AMENDMENTS, COULD HAVE SPECIFICALLY STATED THAT USE OF ANY OF THE GOVERNMENT-FURNISHED AREAS, OR COMBINATIONS THEREOF, WOULD BE PERMITTED BY BIDDERS IN COMPUTING THEIR BASE BIDS, WE ARE INCLINED TO AGREE WITH THE CORPS OF ENGINEER'S VIEW THAT SUCH A CONCLUSION MAY REASONABLY BE DRAWN FROM THE INVITATION AND ITS AMENDMENTS. AS STATED HEREINBEFORE, WE DO NOT FEEL THAT THE WORDING "IF THE CONTRACTOR USES THE MONSANTO CHEMICAL CO., OR THE SUN OIL CO. DISPOSAL AREAS * * * " CONTAINED IN PARAGRAPH TP-4C IS REASONABLY SUBJECT TO BEING CONSTRUED BY A BIDDER AS MANDATORILY REQUIRING USE OF THOSE AREAS IN HIS BASE BID WITHOUT CREATING SUFFICIENT DOUBT TO LOGICALLY SUGGEST TO A PRUDENT BIDDER THAT HE VERIFY SUCH AN INTERPRETATION IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 1 OF THE INSTRUCTIONS TO BIDDERS. THE CORPS OF ENGINEERS REPORTED THAT NO REQUESTS WERE RECEIVED FOR AN EXPLANATION REGARDING THE MEANING OR INTERPRETATION OF ANY OF THE PROVISIONS OF THE INVITATION. IN A SOMEWHAT SIMILAR MATTER, B-156025, MAY 4, 1965, WE OBSERVED:

"WHILE IT IS INCUMBENT UPON A GOVERNMENT AGENCY TO STATE THE MATERIAL REQUIREMENTS OF A PROCUREMENT IN A CLEAR AND UNAMBIGUOUS MANNER, WE RECOGNIZE THAT 100 PERCENT CLARITY AS TO ALL ASPECTS OF EVERY SOLICITATION IS UNLIKELY. IT IS NOT UNREASONABLE TO EXPECT THAT IN ANY EXTENSIVE RETROSPECTIVE EXAMINATION BY AN UNSUCCESSFUL COMPETITOR OF A VOLUMINOUS SOLICITATION SUCH AS THE RFP HERE CONCERNED, WHICH IN TURN INCORPORATES ADDITIONAL LENGTHY DOCUMENTS AND MATERIAL, MINOR INCONSISTENCIES CAN BE FOUND ON WHICH TO SUBMIT A PROTEST. WE FEEL THAT GOOD FAITH AND OBSERVANCE OF THE SPIRIT OF COMPETITIVE SOLICITATION, AS WELL AS SOUND BUSINESS PRACTICE ON THE PART OF COMPETITORS FOR GOVERNMENT CONTRACTS, DICTATE THAT THE APPROPRIATE TIME FOR A DETAILED EXAMINATION OF THE SOLICITATION AND CLARIFICATION OF ANY PROVISION THEREOF CONSIDERED TO BE AMBIGUOUS OR CONFUSING IS PRIOR TO THE TIME SPECIFIED FOR SUBMISSION OF PROPOSALS OR BIDS.'

FOR THE FOREGOING REASONS, WE DO NOT FIND THE INVITATION SO MATERIALLY DEFECTIVE OR AMBIGUOUS AS TO RENDER ILLEGAL THE CONTRACT AWARDED TO BAUER DREDGING AND CONSTRUCTION COMPANY, INC. ..END :