B-167067, SEP 8, 1969

B-167067: Sep 8, 1969

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SECRETARY: REFERENCE IS MADE TO LETTERS DATED JUNE 19 AND AUGUST 8. THREE BIDS WERE RECEIVED AND OPENED ON APRIL 25. BERRY CONSTRUCTION INSERTED THE FOLLOWING STATEMENT: "WE HAVE BEEN ADVISED THAT FROM THE TIME SHOP DRAWINGS HAVE BEEN SUBMITTED AND APPROVED. DELIVERY WILL BE APPROXIMATELY 10 WEEKS.". LARSEN-RATTO WAS REQUESTED TO SUSPEND WORK UNTIL A DECISION WAS REACHED BY OUR OFFICE ON THE PROTEST OF BERRY CONSTRUCTION. THE ATTORNEY FOR BERRY CONSTRUCTION HAS PROTESTED THE REJECTION OF THE COMPANY'S BID AND CONTENDS THAT THE LANGUAGE ON THE FACE OF THE BID ADVISING OF EXPECTED DELIVERY DATE FOR THE METAL BUILDING AND AUTO SPRAY BOOTH WAS FOR INFORMATIONAL PURPOSES ONLY AND THAT SUCH LANGUAGE DID NOT OR WOULD NOT MODIFY THE COMPANY'S OBLIGATION TO COMPLETE THE CONTRACT WITHIN THE TIME SPECIFIED.

B-167067, SEP 8, 1969

BID PROTEST - PROTEST SUSTAINED - LOW BID RESPONSIVE DECISION TO SECRETARY OF THE INTERIOR SUSTAINING PROTEST OF LOW BIDDER, DAVID L. BERRY CONSTRUCTION, AND CONCLUDING THAT AWARD TO SECOND LOW BIDDER, LARSEN-RATTO CONSTRUCTION CO. SHOULD BE CANCELED. A STATEMENT ON A BID CONCERNING EXPECTED DELIVERY DATES FOR INFORMATIONAL PURPOSES WHICH STATEMENT DID NOT QUALIFY THE COMPLETION DATE OF THE CONTRACT SHOULD NOT BE REGARDED AS QUALIFYING THE BIDDER'S OFFER AND THEREFORE, AWARD TO SECOND LOW BIDDER SHOULD BE CANCELED.

TO MR. SECRETARY:

REFERENCE IS MADE TO LETTERS DATED JUNE 19 AND AUGUST 8, 1969, FROM THE DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION, FURNISHING US A REPORT ON THE PROTEST OF DAVID L. BERRY CONSTRUCTION, MADERA, CALIFORNIA, AGAINST THE ACTION OF THE BUREAU OF INDIAN AFFAIRS, LITTLETON, COLORADO, IN REJECTING THE COMPANY'S BID SUBMITTED IN RESPONSE TO AN INVITATION FOR BIDS ON PROJECT NO. K55-9610.

THE INVITATION REQUESTED BIDS - TO BE OPENED APRIL 25, 1969 - FOR FURNISHING ALL LABOR AND MATERIALS AND PERFORMING ALL WORK NECESSARY FOR THE CONSTRUCTION OF A METAL AUTOMOTIVE SHOP BUILDING ADDITION AT THE BUREAU OF INDIAN AFFAIRS MADERA EMPLOYMENT TRAINING CENTER, MADERA, CALIFORNIA. AN ADDITIVE ALTERNATIVE PROVIDED FOR THE FURNISHING AND INSTALLATION OF A SPRAY BOOTH. THE REVERSE SIDE OF THE BID FORM, STANDARD FORM 21, CONTAINED THE FOLLOWING PROVISION:

"THE UNDERSIGNED AGREES, IF AWARDED THE CONTRACT, TO COMMENCE THE WORK WITHIN 10 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, AND TO COMPLETE THE WORK WITHIN 90 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED."

PARAGRAPH GC-1 OF THE GENERAL CONDITIONS, "SUBMITTALS," PROVIDES IN PERTINENT PART THAT "AFTER RECEIPT OF NOTICE TO PROCEED, AND PRIOR TO PROCUREMENT OF MATERIALS, THE CONTRACTOR SHALL SUBMIT TO THE CONTRACTING OFFICER FOR APPROVAL SAMPLES, SHOP DRAWINGS." PARAGRAPH 13P.03 OF THE TECHNICAL SPECIFICATIONS, "SHOP DRAWINGS," PERTAINING TO THE METAL BUILDING, PROVIDES: "GENERAL: SUBMIT COMPLETE SHOP DRAWINGS IN QUADRUPLICATE AND OBTAIN CONTRACTING OFFICER'S APPROVAL BEFORE STARTING FABRICATION." SPECIAL CONDITION NO. 1.04 PROVIDES FOR THE ASSESSMENT OF LIQUIDATED DAMAGES AT THE RATE OF $35 PER DAY FOR EACH DAY OF UNEXCUSABLE DELAY IN PERFORMANCE.

THREE BIDS WERE RECEIVED AND OPENED ON APRIL 25, 1969. DAVID L. BERRY CONSTRUCTION, HEREINAFTER REFERRED TO AS BERRY CONSTRUCTION, SUBMITTED THE LOWEST BID IN THE AGGREGATE AMOUNT OF $67,195, COVERING THE METAL BUILDING AND THE AUTO SPRAY BOOTH. ON THE FACESHEET OF ITS BID, BERRY CONSTRUCTION INSERTED THE FOLLOWING STATEMENT:

"WE HAVE BEEN ADVISED THAT FROM THE TIME SHOP DRAWINGS HAVE BEEN SUBMITTED AND APPROVED, ON METAL BUILDINGS AND AUTO SPRAY BOOTH, DELIVERY WILL BE APPROXIMATELY 10 WEEKS."

THE CONTRACTING OFFICER VIEWED THE ABOVE LANGUAGE AS AN EXCEPTION TO THE TIME STATED IN THE INVITATION FOR BIDS FOR COMPLETION OF THE CONTRACT AND, THEREFORE, HE DETERMINED THE BID OF BERRY CONSTRUCTION TO BE NONRESPONSIVE TO THE INVITATION. ON MAY 22, 1969, THE CONTRACTING OFFICER AWARDED THE CONTRACT IN THE AGGREGATE AMOUNT OF $73,922 TO THE SECOND LOW BIDDER, LARSEN-RATTO CONSTRUCTION CO. ON JUNE 2, 1969, LARSEN-RATTO WAS REQUESTED TO SUSPEND WORK UNTIL A DECISION WAS REACHED BY OUR OFFICE ON THE PROTEST OF BERRY CONSTRUCTION.

THE ATTORNEY FOR BERRY CONSTRUCTION HAS PROTESTED THE REJECTION OF THE COMPANY'S BID AND CONTENDS THAT THE LANGUAGE ON THE FACE OF THE BID ADVISING OF EXPECTED DELIVERY DATE FOR THE METAL BUILDING AND AUTO SPRAY BOOTH WAS FOR INFORMATIONAL PURPOSES ONLY AND THAT SUCH LANGUAGE DID NOT OR WOULD NOT MODIFY THE COMPANY'S OBLIGATION TO COMPLETE THE CONTRACT WITHIN THE TIME SPECIFIED. THE COMPANY HAS SUBMITTED A CONTRACT TIME SCHEDULE SHOWING HOW THE WORK WOULD BE COMPLETED WITHIN 90 DAYS - THE TIME SPECIFIED IN THE INVITATION FOR BIDS.

IT IS REPORTED THAT BUREAU OF INDIAN AFFAIRS ENGINEERS WERE AWARE AT THE TIME THE INVITATION FOR BIDS WAS ISSUED THAT THE AUTO SPRAY BOOTH WOULD REQUIRE 10 WEEKS (70 DAYS) FOR DELIVERY AFTER RECEIPT OF APPROVAL OF THE SHOP DRAWINGS. THEREFORE, USING THAT CRITICAL DELIVERY TIME FOR THE AUTO SPRAY BOOTH, THE CALENDAR DAYS REQUIRED TO COMPLETE THE CONTRACT WHICH INCLUDED DELIVERY, ERECTION, AND INTERIOR CONSTRUCTION WORK ON THE METAL BUILDING AND AUTO SPRAY BOOTH AND THE TIME REQUIRED TO RECEIVE, EVALUATE, APPROVE, AND RETURN THE SHOP DRAWINGS WAS DETERMINED BY THE ENGINEERS AS FOLLOWS:

CONTRACT TIME SCHEDULE

TIME REQUIRED

(CALENDAR DAYS)

SEQUENCE OF EVENTS BUILDING AUTO SPRAY BOOTH TIME ALLOWED FROM ISSUANCE OF NOTICE

TO PROCEED TO RECEIPT OF APPROVED

SHOP DRAWINGS BY CONTRACTOR 9 9 TIME REQUIRED FOR DELIVERY TO SITE

21 70 TIME REQUIRED FOR ERECTION OR

INSTALLATION AFTER DELIVERY 7 4 TIME REQUIRED TO COMPLETE INTERIOR

WORK AND MAKE FINAL INSPECTION 30 0 MARGIN FOR UNFORESEEN DELAYS

7 7

TOTAL TIME 74 90

IN THE CONTRACT TIME SCHEDULE SHOWN ABOVE, THE TIME REQUIRED FOR DELIVERY TO THE SITE OF THE METAL BUILDING IS SHOWN AS 21 DAYS. ON THE FACE OF ITS BID, BERRY CONSTRUCTION INDICATED THAT IT WOULD TAKE APPROXIMATELY 10 WEEKS (70 DAYS) FOR DELIVERY OF THE METAL BUILDING TO THE SITE. IT IS REPORTED THAT BY SUBSTITUTING 70 DAYS - THE TIME SPECIFIED BY BERRY CONSTRUCTION ON THE FACE OF ITS BID - FOR THE 21 DAYS SHOWN IN THE ABOVE GOVERNMENT'S CONTRACT TIME SCHEDULE, THE CONTRACTING OFFICER CONCLUDED THAT THE TOTAL TIME REQUIRED BY BERRY CONSTRUCTION TO COMPLETE THE WORK ON THE METAL BUILDING WOULD BE 116 CALENDAR DAYS, EXCLUDING THE 7-DAY MARGIN FOR UNFORESEEN DELAYS. HOWEVER, THE TIME SEQUENCE STATED ABOVE WAS NOT INCLUDED IN THE INVITATION; NOR WERE BIDDERS APPRISED OF THE SPECIFIC TIME ALLOTMENTS FOR DELIVERY OF THE BUILDINGS.

THE PROCEDURES APPLICABLE TO THE SUBMISSION AND OPENING OF BIDS AND AWARD OF CONTRACT WHICH ARE FOR CONSIDERATION HERE ARE STATED IN THE FEDERAL PROCUREMENT REGULATIONS AS FOLLOWS:

"SEC. 1-2.301 RESPONSIVENESS OF BIDS.

"(A) TO BE CONSIDERED FOR AWARD, A BID MUST COMPLY IN ALL MATERIAL RESPECTS WITH THE INVITATION FOR BIDS SO THAT, BOTH AS TO THE METHOD AND TIMELINESS OF SUBMISSION AND AS TO THE SUBSTANCE OF ANY RESULTING CONTRACT, ALL BIDDERS MAY STAND ON AN EQUAL FOOTING AND THE INTEGRITY OF THE FORMAL ADVERTISING SYSTEM MAY BE MAINTAINED.

"SEC. 1-2.404-2 REJECTION OF INDIVIDUAL BIDS.

"(A) ANY BID WHICH FAILS TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE INVITATION FOR BIDS, SUCH AS SPECIFICATIONS, DELIVERY SCHEDULE, OR PERMISSIBLE ALTERNATES THERETO, SHALL BE REJECTED AS NONRESPONSIVE.

"(B) ORDINARILY, A BID SHALL BE REJECTED WHERE THE BIDDER IMPOSES CONDITIONS WHICH WOULD MODIFY REQUIREMENTS OF THE INVITATION FOR BIDS OR LIMIT HIS LIABILITY TO THE GOVERNMENT SO AS TO GIVE HIM AN ADVANTAGE OVER OTHER BIDDERS. FOR EXAMPLE, BIDS SHALL BE REJECTED IN WHICH THE BIDDER:

"(5) LIMITS RIGHTS OF GOVERNMENT UNDER ANY CONTRACT CLAUSE. HOWEVER, A LOW BIDDER MAY BE REQUESTED TO DELETE OBJECTIONABLE CONDITIONS FROM HIS BID IF THESE CONDITIONS DO NOT GO TO THE SUBSTANCE, AS DISTINGUISHED FROM THE FORM OF THE BID. A CONDITION GOES TO THE SUBSTANCE OF A BID WHERE IT AFFECTS PRICE, QUANTITY, QUALITY, OR DELIVERY OF THE ITEMS OFFERED."

ON THE RECORD BEFORE US, WE SEE NO GROUND FOR CONSIDERING THE STATEMENT APPEARING ON THE FACE OF THE BID OF BERRY CONSTRUCTION AS AN EXCEPTION TO THE ADVERTISED REQUIREMENTS WITH RESPECT TO THE 90-DAY CONTRACT COMPLETION DATE. WE AGREE WITH THE POSITION OF THE FIRM'S ATTORNEY THAT THE LANGUAGE ON THE FACE OF THE COMPANY'S BID WITH RESPECT TO EXPECTED DELIVERY DATES FOR THE METAL BUILDING AND AUTO SPRAY BOOTH WAS FOR INFORMATION PURPOSES ONLY AND THAT IT DID NOT MODIFY ITS OBLIGATION TO COMPLETE THE CONTRACT WITHIN 90 CALENDAR DAYS AFTER RECEIPT OF NOTICE TO PROCEED. THE STATEMENT APPEARING ON THE FACESHEET OF THE BERRY BID DOES NOT CONTAIN ANY REFERENCE TO THE COMPLETION DATE OF THE CONTRACT OR ANY INDICATION THAT THE 90-DAY REQUIREMENT WAS CONTINGENT ON THE DELIVERY OF THE METAL BUILDING AND THE AUTO SPRAY BOOTH. SINCE THE COMPANY DID NOT QUALIFY THE COMPLETION DATE OF THE CONTRACT, WE DO NOT BELIEVE THAT ITS BID SHOULD HAVE BEEN REGARDED AS INCORPORATING A MATERIAL DEVIATION. UNDER THE CIRCUMSTANCES, WE REGARD THE BID, TOGETHER WITH THE APPENDED STATEMENT, AS AN OFFER TO COMPLY WITH THE COMPLETION TIME OF THE INVITATION WITHOUT QUALIFICATION. ACCORDANCE WITH THE ABOVE, AND SINCE A BID IS PRESUMED TO BE RESPONSIVE TO THE TERMS AND CONDITIONS OF THE INVITATION UNLESS CLEARLY QUALIFIED BY THE BIDDER, THE BID OF BERRY CONSTRUCTION SHOULD BE REGARDED AS RESPONSIVE TO THE INVITATION. SEE 36 COMP. GEN. 515. WE BELIEVE THAT IF BERRY CONSTRUCTION DOES NOT COMPLETE THE CONTRACT WORK WITHIN 90 CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, THE GOVERNMENT CAN ENFORCE ITS RIGHTS UNDER THE LIQUIDATED DAMAGES PROVISION OF THE CONTRACT. ACCORDINGLY, THE CONTRACT AWARDED TO THE SECOND LOW BIDDER, LARSEN-RATTO CONSTRUCTION CO., SHOULD BE CANCELED AND A CONTRACT SHOULD BE AWARDED TO BERRY CONSTRUCTION AS THE LOWEST RESPONSIVE BIDDER UNDER THE INVITATION IN QUESTION, PROVIDED BERRY IS OTHERWISE ENTITLED TO AN AWARD THEREUNDER.