B-170393, SEP. 30, 1970

B-170393: Sep 30, 1970

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ACADEMY AND AWARD UNDER A READVERTISEMENT BECAUSE THE FIRST ADVERTISEMENT WAS AMBIGUOUS. SPECIFICATION WERE FOUND TO CONFLICT WITH DRAWINGS. A LOW BIDDER UNDER AN AMBIGUOUS INVITATION WHO PARTICIPATED IN THE READVERTISEMENT THROUGH THE POINT OF OPENING AND DISCLOSURE OF BIDS COULD BE CONSIDERED TO HAVE ACQUIESCED IN READVERTISEMENT ACTION. THE SUBSTANCE OF YOUR PROTEST IS THAT YOUR ORIGINAL BID COVERED THE PROJECT EXACTLY AS INDICATED IN THE FIRST SOLICITATION AND THAT THE CHANGES WHICH WERE MADE AND REFLECTED IN THE SECOND SOLICITATION WERE SO MINUTE AS NOT TO WARRANT CANCELLING THE PROCUREMENT AND READVERTISING. YOU CONTEND THAT THE REJECTION OF YOUR ORIGINAL BID AFTER EXPOSURE OF YOUR BID PRICE WAS AN UNFAIR ACT ON THE PART OF THE NAVY AND THAT.

B-170393, SEP. 30, 1970

BID PROTEST - DISCARDING ALL BIDS AND READVERTISING DENIAL OF PROTEST AGAINST REJECTION OF LOW BID FOR CONSTRUCTION OF AN ELECTRICAL DISTRIBUTION SYSTEM AT THE F.B.I. ACADEMY AND AWARD UNDER A READVERTISEMENT BECAUSE THE FIRST ADVERTISEMENT WAS AMBIGUOUS. WHERE, AFTER OPENING WHICH REFLECTED UNUSUAL PRICE RANGE, SPECIFICATION WERE FOUND TO CONFLICT WITH DRAWINGS. THEREFORE SUCH AMBIGUITY SUPPORTS DETERMINATION TO READVERTISE. A LOW BIDDER UNDER AN AMBIGUOUS INVITATION WHO PARTICIPATED IN THE READVERTISEMENT THROUGH THE POINT OF OPENING AND DISCLOSURE OF BIDS COULD BE CONSIDERED TO HAVE ACQUIESCED IN READVERTISEMENT ACTION. THEREFORE DISCARDING ALL BIDS UNDER FIRST ADVERTISEMENT AND AWARD UNDER CORRECTED ADVERTISEMENT MAY NOT BE LEGALLY QUESTIONED.

TO NORTHERN VIRGINIA ELECTRIC CO., INC.:

WE REFER TO YOUR LETTER OF JUNE 24, 1970, ADDRESSED TO THE HONORABLE JOEL T. BROYHILL, UNITED STATES HOUSE OF REPRESENTATIVES, PROTESTING THE REJECTION BY THE DEPARTMENT OF THE NAVY OF YOUR LOW BID FOR CONSTRUCTION OF AN ELECTRICAL DISTRIBUTION SYSTEM AT THE FEDERAL BUREAU OF INVESTIGATION ACADEMY, QUANTICO, VIRGINIA. YOU ALSO PROTEST THE AWARD, UPON READVERTISEMENT, OF THE CONTRACT TO C. G. ESTABROOK, INC. (ESTABROOK), THE THIRD-LOW BIDDER UNDER THE ORIGINAL SOLICITATION. CONGRESSMAN BROYHILL REFERRED THE MATTER TO THIS OFFICE FOR OUR INVESTIGATION AND DECISION.

THE SUBSTANCE OF YOUR PROTEST IS THAT YOUR ORIGINAL BID COVERED THE PROJECT EXACTLY AS INDICATED IN THE FIRST SOLICITATION AND THAT THE CHANGES WHICH WERE MADE AND REFLECTED IN THE SECOND SOLICITATION WERE SO MINUTE AS NOT TO WARRANT CANCELLING THE PROCUREMENT AND READVERTISING. YOU CONTEND THAT THE REJECTION OF YOUR ORIGINAL BID AFTER EXPOSURE OF YOUR BID PRICE WAS AN UNFAIR ACT ON THE PART OF THE NAVY AND THAT, IN VIEW OF THE SUBSTANTIAL COST OF BIDDING ON THE PROJECT, YOU SHOULD BE REIMBURSED FOR SUCH EXPENSES.

INVITATION FOR BIDS (IFB) N62477-70-B-0113, ISSUED MARCH 6, 1970, BY THE NAVAL FACILITIES ENGINEERING COMMAND (NFEC), SOLICITED BIDS FOR PERFORMANCE OF THE PROJECT IN ACCORDANCE WITH NAVFAC SPECIFICATION NO. 21- 70-0113, WHICH INCLUDED NINE GOVERNMENT DRAWINGS. AMONG VARIOUS DOCUMENTS WHICH WERE INCORPORATED IN THE IFB WAS STANDARD FORM 22, INSTRUCTIONS TO BIDDERS (CONSTRUCTION CONTRACT), PARAGRAPH 10(B) OF WHICH RESERVED TO THE GOVERNMENT THE RIGHT, WHEN IN ITS INTEREST, TO REJECT ANY OR ALL BIDS.

ON APRIL 8, NFEC OPENED THE EIGHT BIDS RECEIVED IN RESPONSE TO THE IFB. THE PRICES RANGED FROM A LOW OF $119,370 BID BY YOU TO A HIGH OF $200,000 BID BY EACH OF TWO OTHER FIRMS. ESTABROOK'S BID WAS $148,499 AND THE GOVERNMENT'S ESTIMATE FOR THE PROJECT WAS $199,726.

IN LIGHT OF THE WIDE RANGE OF BIDS AS WELL AS THE SIZEABLE VARIANCE BETWEEN YOUR LOW BID AND THE GOVERNMENT ESTIMATE, NFEC REPORTS THAT A CLOSE REVIEW OF THE SPECIFICATIONS AND DRAWINGS WAS CONDUCTED IN AN EFFORT TO DETERMINE WHETHER THERE WERE ANY AMBIGUITIES WHICH COULD HAVE MISLED THE BIDDERS. IN THIS REGARD, NFEC FURTHER REPORTS:

" *** IT WAS DISCOVERED THAT THE CONTRACT SPECIFICATIONS, IN PARAGRAPH 16A.14.2.3, REQUIRED DIRECT BURIAL OF CABLE IN TRENCHES (WITH MINOR EXCEPTIONS), WHILE THE DRAWINGS REQUIRED THAT THE CABLE BE ENCASED IN CONCRETE CONDUITS BEFORE BURIAL. THIS CONFLICT IN REQUIREMENTS COULD HAVE BEEN THE SUBJECT OF A SIZEABLE CLAIM AFTER AWARD, SINCE THE CONTRACT, READ AS A WHOLE, DID NOT CLEARLY REQUIRE EITHER METHOD. FURTHERMORE, THE SPECIFICATIONS DID NOT CLEARLY SPECIFY THE BATTERY CHARGER, RELAYS AND METERS TO BE PROVIDED, NOR THE CONNECTIONS FOR THIS EQUIPMENT. FINALLY, THE SPECIFICATIONS, PARAGRAPH 16A.14, PERMITTED THE CONTRACTOR THE OPTION OF PROVIDING ALUMINUM OR COPPER CABLE, WITHOUT SPECIFYING THE REQUIRED AMPACITY RATINGS. THE DRAWINGS REQUIRED THAT SIZE 500 MCM CABLE BE INSTALLED, CONTEMPLATING COPPER CABLE. HOWEVER, IF THE CONTRACTOR EXERCISED HIS OPTION TO PROVIDE ALUMINUM CABLE, 500 MCM CABLE WOULD HAVE YIELDED AN INADEQUATE AMPACITY RATING."

ON THE BASIS THAT THE AMBIGUITIES AND DISCREPANCIES THUS DISCOVERED CONSTITUTED A FAILURE ON THE PART OF THE IFB TO CLEARLY SPELL OUT THE CONTRACT REQUIREMENTS, NFEC REJECTED ALL BIDS, CANCELLED THE IFB AND RESOLICITED THE PROCUREMENT UNDER REVISED SPECIFICATIONS. THE SECOND INVITATION WAS ISSUED MAY 5, 1970, AND BORE THE SAME NUMBER AS THE ORIGINAL IFB.

THE REVISED SPECIFICATIONS OMITTED THE LANGUAGE RELATING TO BURIAL OF CABLE IN TRENCHES WHICH APPEARED IN PARAGRAPH 16A.14.2.3 OF THE ORIGINAL SPECIFICATIONS; STIPULATED (PAR. 16A.14) THAT CONDUCTORS NO. 4 AWG AND LARGER, WHICH COULD BE EITHER COPPER OR ALUMINUM, SHOULD HAVE A CURRENT CARRYING CAPACITY EQUAL TO THE COPPER CONDUCTOR SIZE SHOWN ON THE DRAWINGS; PROVIDED IN PARAGRAPH 16A.14.3.1 FOR A POLYVINYL CHLORIDE JACKET FOR CROSS LINKED POLYETHYLENE INSULATED WIRE AND CABLE TO PERMIT USE OF A MORE COMMONLY MANUFACTURED CABLE; AND MADE VARIOUS CLARIFICATIONS IN SECTION 16B CONCERNING THE SUBSTATION SWITCHING EQUIPMENT.

TWO BIDS WERE RECEIVED AND OPENED ON MAY 20 IN RESPONSE TO THE SECOND IFB; ONE FROM ESTABROOK, IN THE AMOUNT OF $121,908, AND THE OTHER FROM YOU, IN THE AMOUNT OF $123,798. AWARD WAS MADE TO ESTABROOK AS THE LOW RESPONSIVE BIDDER.

SECTION 2305(C) OF TITLE 10, U.S.C. WHICH APPLIES TO THIS PROCUREMENT, PROVIDES THAT "ALL BIDS MAY BE REJECTED IF THE HEAD OF THE AGENCY DETERMINES THAT REJECTION IS IN THE PUBLIC INTEREST." THE LANGUAGE OF PARAGRAPH 10(B), STANDARD FORM 22, ACCORDS WITH THE STATUTE. WE HAVE HELD THAT THE EXERCISE OF THIS AUTHORITY IS PROPER WHEN AN INVITATION FOR BIDS IS AMBIGUOUS OR INDEFINITE SO AS TO PRECLUDE BIDDING ON A COMMON BASIS, IN KEEPING WITH PERTINENT PROVISIONS OF THE ADVERTISED PROCUREMENT STATUTES AND IMPLEMENTING REGULATIONS. 33 COMP. GEN. 567, 570 (1954); 43 COMP. GEN. 544, 546 (1964).

THE RECORD, AS SHOWN IN THAT PORTION OF THE ADMINISTRATIVE REPORT QUOTED ABOVE, INDICATES THAT THE NAVY, WHILE PERMITTING THE USE OF EITHER COPPER OR ALUMINUM CABLE, DESIRED A CURRENT CARRYING CAPACITY EQUAL TO THE COPPER CONDUCTOR SIZE SHOWN ON THE GOVERNMENT DRAWINGS. THIS NEED, HOWEVER, WAS NOT STATED ON THE DRAWINGS OR IN THE ORIGINAL SPECIFICATION. SIMILARLY, THE ORIGINAL SPECIFICATIONS DID NOT CLEARLY SPECIFY THE BATTERY CHARGER, RELAYS AND METERS TO BE PROVIDED, OR THE CONNECTIONS FOR SUCH ITEMS, WHICH WERE SUBSEQUENTLY CLARIFIED IN SECTION 16B OF THE REVISED SPECIFICATIONS. IN ADDITION, THE RECORD EVIDENCES A CONFLICT BETWEEN THE DRAWINGS AND THE ORIGINAL SPECIFICATIONS AS TO ENCASEMENT OF THE CABLE IN CONCRETE CONDUITS OR DIRECT BURIAL IN OPEN TRENCHES, AN AMBIGUITY WHICH COULD HAVE MATERIALLY AFFECTED THE PRICES BID ON THE WORK. TO SUCH EXTENT, THEREFORE, THE ORIGINAL IFB MUST BE VIEWED AS NOT PROVIDING BIDDERS WITH A CLEAR STATEMENT OF THE NAVY'S NEEDS.

IN THE CIRCUMSTANCES, WE CONCUR WITH THE POSITION OF NFEC THAT THE ORIGINAL IFB WAS SUFFICIENTLY DEFECTIVE TO WARRANT ITS CANCELLATION PURSUANT TO PARAGRAPH 2-404.1(B)(I) OF THE ARMED SERVICES PROCUREMENT REGULATION ON THE BASIS OF INADEQUATE OR AMBIGUOUS SPECIFICATIONS. ADDITIONALLY, WE BELIEVE THE APPROPRIATE TIME FOR PROTESTING THE CANCELLATION AND READVERTISEMENT WAS PRIOR TO BID OPENING ON THE SECOND SOLICITATION. BY PARTICIPATING, WITHOUT OBJECTION, IN THE READVERTISEMENT THROUGH THE POINT OF OPENING AND DISCLOSURE OF BIDS, YOU COULD BE LOGICALLY CONSIDERED AS HAVING ACQUIESCED IN THE ADMINISTRATIVE ACTIONS. ACCORDINGLY, WE FIND NO PROPER BASIS TO QUESTION THE LEGALITY OF THE ACTIONS OF NFEC IN DISCARDING ALL OF THE BIDS RECEIVED UNDER THE ORIGINAL IFB AND IN MAKING AWARD UNDER THE SECOND IFB WITH THE CORRECTED SPECIFICATIONS. YOUR PROTEST IS THEREFORE DENIED.

AS TO YOUR CONTENTION THAT YOU SHOULD BE REIMBURSED FOR THE COST OF PREPARING YOUR BID, YOU ARE ADVISED THAT WE ARE NOT AWARE OF ANY AUTHORITY FOR THE PAYMENT OF SUCH EXPENSES TO AN UNSUCCESSFUL BIDDER IN CIRCUMSTANCES SUCH AS THESE WHERE THE GOVERNMENT RESERVES THE RIGHT TO REJECT ANY AND ALL BIDS AND SUCH RIGHT IS EXERCISED WITH NO SHOWING OF ANY BAD FAITH OR ARBITRARY OR CAPRICIOUS ACTION ON THE PART OF THE CONTRACTING AGENCY.