B-172716, JUN 14, 1971

B-172716, JUN 14, 1971

BID PROTEST - BID RESPONSIVENESS - UNIT BID PRICES DECISION DENYING PROTEST BY SECOND LOW BIDDER AGAINST FURTHER CONSIDERATION OF THE LOW BID SUBMITTED BY JULIAN C. COHEN SALVAGE CORP., UNDER AN IFB ISSUED BY THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY FOR DEMOLITION AND SITE CLEARANCE WORK AT FOURTEEN URBAN RENEWAL PROJECT AREAS. WHERE DEMOLITION OF STRUCTURES WAS THE BASIS OF UNIT PRICES REQUESTED FOR PART I OF THE IFB AND PART II REQUESTED UNIT PRICES FOR ESTIMATED QUANTITIES OF RELATED WORK BY TYPE RATHER THAN BY SITE, THE LOW BID WHICH INCLUDED THE WORD "NONE" ENTERED AFTER EACH PART II LINE ITEM NEED NOT BE REJECTED AS NONRESPONSIVE. IT IS CLEAR THAT THE LOW BIDDER HAS SUBMITTED A RESPONSIVE BID, COVERING THE COST FOR THE ENTIRE JOB, INCLUDING ALL RELATED WORK, AND HAS OBLIGATED ITSELF TO COMPLETE ALL WORK REQUIRED IN THE TECHNICAL SPECIFICATIONS.

TO ROBERT F. STEEVES, ESQ.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1971, ENCLOSING A PROTEST IN BEHALF OF YOUR CLIENT, LIBERTY WRECKING & BUILDING MATERIALS CO., OF ALEXANDRIA, VIRGINIA. THE PROTEST, DATED APRIL 21, RELATES TO THE INVITATION FOR BIDS ON PROPOSED CONTRACT DC-RLA-1476, AND WAS ADDRESSED TO THE CHAIRMAN, BOARD OF DIRECTORS, DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY. IN EFFECT, THE PROTEST OBJECTS TO FURTHER CONSIDERATION OF THE BID OF JULIAN C. COHEN SALVAGE CORP. (COHEN), THE APPARENT LOW BIDDER AT THE BID OPENING ON APRIL 16.

THE INVITATION SOLICITED BIDS FOR "DEMOLITION AND SITE CLEARANCE WORK" AND DEFINED THE PHRASE AS MEANING ALL THE WORK TO BE PERFORMED UNDER THE CONTRACT. FOURTEEN BUILDING AND STRUCTURE SITES IN TWO URBAN RENEWAL PROJECT AREAS WERE IDENTIFIED IN PART I. WORK RELATED TO SITE CLEARANCE WAS DESCRIBED UNDER PART II, AND WAS IDENTIFIED TO TECHNICAL SPECIFICATIONS AND APPROXIMATE QUANTITIES. EACH BIDDER WAS REQUIRED TO VISIT THE SITES TO INFORM HIMSELF AS TO THE FACILITIES AND EXISTING CONDITIONS.

BIDDERS WERE ADVISED AS FOLLOWS UNDER PART I OF THE SCHEDULE OF PRICES:

"THE PRICE BID FOR SUCH DEMOLITION WORK DOES NOT INCLUDE BACKFILLING OR THE PRICE FOR PERFORMANCE OF ANY OF THE ITEMS LISTED IN PART II *** ."

ADDITIONALLY, PARAGRAPH 20 OF THE INSTRUCTIONS TO BIDDERS ADVISED AS FOLLOWS:

"20. UNIT PRICES.

"THE UNIT PRICE FOR EACH OF THE SEVERAL ITEMS IN THE PROPOSAL OF EACH BIDDER SHALL INCLUDE ITS PRORATA SHARE OF OVERHEAD SO THAT THE SUM OF THE PRODUCTS OBTAINED BY MULTIPLYING THE QUANTITY SHOWN FOR EACH ITEM BY THE UNIT PRICE BID REPRESENTS THE TOTAL BID. ANY BID NOT CONFORMING TO THIS REQUIREMENT MAY BE REJECTED AT THE AGENCY'S OPTION. THE SPECIAL ATTENTION OF ALL BIDDERS IS CALLED TO THIS PROVISION, FOR SHOULD CONDITIONS MAKE IT NECESSARY TO REVISE THE QUANTITIES, INCREASES OR DECREASES THEREOF MAY BE MADE WITHOUT LIMIT AND ADJUSTMENT AND COMPENSATION SHALL BE MADE ON THE BASIS OF THE UNIT PRICES FOR SUCH ITEM."

DEMOLITION OF EACH BUILDING AND STRUCTURE WAS THE BASIS OF UNIT PRICES REQUESTED FOR PART I ITEMS, WHILE PART II REQUESTED UNIT PRICES FOR ESTIMATED QUANTITIES OF RELATED WORK, BY TYPE OF WORK RATHER THAN SITE BY SITE.

THE BID SUBMITTED BY THE APPARENT LOW BIDDER CONTAINED A SEPARATE UNIT PRICE FOR EACH PART I SITE, AND A "TOTAL PART I" PRICE OF $42,400. THE WORD "NONE" WAS SEPARATELY ENTERED AFTER EACH PART II LINE ITEM. SIMILAR PROCEDURE WAS FOLLOWED IN PREPARING THE SUMMARY SHEET, WITH THE WORDS "NONE-ZERO" ENTERED AS THE "TOTAL PRICE" ON EACH PART II LINE ITEM. HOWEVER, THE FIGURES $42,400 WERE ENTERED AS BOTH THE TOTAL PART I PRICE, AND AS THE "TOTAL OF PARTS I AND II" ON THE SUMMARY SHEET.

YOUR PROTEST SETS FORTH THE FOLLOWING FOUR GROUNDS, WHICH YOU CONTEND REQUIRE REJECTION OF COHEN'S BID:

1. COHEN'S BID WAS NONRESPONSIVE, SINCE IT DID NOT INCLUDE UNIT BID PRICES ON THE ITEMS SET OUT IN PART II.

2. COHEN'S BID IS INCOMPLETE SINCE, WITHOUT UNIT BID PRICES ON THE PART II ITEMS, THERE WOULD BE NO BASIS FOR INCREASING OR DECREASING THE CONTRACT PRICE IN THE CASE OF OVERRUN OR UNDERRUN ON THE ESTIMATED AMOUNTS OF SUCH ITEMS.

3. COHEN'S BID IS AMBIGUOUS, SINCE IT IS IMPOSSIBLE TO ASCERTAIN FROM THE BID ITSELF WHETHER THE TOTAL BID PRICE WAS, OR WAS NOT, INTENDED TO COVER THE COST OF WORK TO BE PERFORMED UNDER PART II.

4. SINCE COHEN'S BID IS NONRESPONSIVE AND AMBIGUOUS, AND TO PERMIT IT TO BE CLARIFIED OR MADE RESPONSIVE WOULD DESTROY THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM, IT WOULD NOT BE IN THE BEST INTEREST OF THE DISTRICT OF COLUMBIA REDEVELOPMENT LAND AGENCY TO ACCEPT THE BID.

WHILE YOU HAVE CITED OUR DECISION PUBLISHED AT 38 COMP. GEN. 372 (1958) AND 41 COMP. GEN. 412 (1961) IN SUPPORT OF YOUR FIRST THREE CONTENTIONS, WE BELIEVE THOSE CASES MUST BE DISTINGUISHED, SINCE THE BIDDERS IN THOSE CASES FAILED TO MAKE ANY ENTRY FOR CERTAIN ITEMS, AND WE THEREFORE CONCLUDED THERE WAS NO CLEAR SHOWING OF INTENTION TO SUPPLY SUCH ITEMS.

IN THE INSTANT CASE, WE BELIEVE THE WORD "NONE" INSERTED IN THE UNIT PRICE COLUMN CAN ONLY REASONABLY BE INTERPRETED AS "NO CHARGE". SEE 40 COMP. GEN. 321 (1961), IN WHICH WE HELD THAT A BIDDER NEED NOT ENTER THE WORDS "NO CHARGE" BEFORE SUCH AN INTERPRETATION OF HIS ENTRY COULD BE MADE. SIMILARLY, WE BELIEVE THE FACT THAT COHEN INSERTED THE WORDS "NONE- ZERO" FOR EACH PART II ITEM ON THE SUMMARY SHEET, AND THEN INSERTED THE FIGURES $42,400 AS THE "TOTAL OF PARTS I AND II", ELIMINATES ANY DOUBT THAT COHEN BID THAT AMOUNT AS HIS PRICE TO PERFORM ALL WORK CONTEMPLATED UNDER BOTH PARTS I AND II.

IN THIS CONNECTION, SEE B-158902, APRIL 18, 1966, IN WHICH WE HELD AS FOLLOWS:

" *** THE QUESTION FOR DETERMINATION HERE IS WHETHER THE USE OF THE PHRASE 'NO COST TO OWNER' BY HUNT CONSTITUTED A FAILURE TO BID ON ALL ITEMS WITHIN THE MEANING OF PARAGRAPH 5(B) AND THE NOTE ON PAGE 2 OF THE BIDDING SCHEDULE. THESE DIRECTIONS IN THE INVITATION IMPOSED A MANDATORY REQUIREMENT ON BIDDERS TO SUBMIT A PRICE FOR EACH ITEM SO AS TO PERMIT AN EVALUATION BASED ON THE ESTIMATED QUANTITIES OF WORK FOR EACH ITEM. HUNT'S BID WAS A LUMP-SUM TOTAL BID COVERING ALL ITEMS OF THE SCHEDULE WHEREIN IT CLEARLY STATED THAT ITEMS 1 AND 3 THROUGH 8 WOULD BE PROVIDED AT NO COST TO THE GOVERNMENT; THAT IS, AS TO THESE ITEMS, HUNT SUBMITTED A ZERO BID. THIS WAS NOT A FAILURE TO BID WHICH, IN THE USUAL CASE, WOULD REQUIRE BID REJECTION BECAUSE THERE WOULD BE NO ASSURANCE THAT THE BIDDER WOULD BE LEGALLY BOUND TO PERFORM WORK COVERED BY BID ITEMS AS TO WHICH NO BID PRICE WAS ENTERED. CF. 41 COMP. GEN. 412; ID. 721; 43 ID. 579."

SEE ALSO 40 COMP. GEN. 321 (1960); B-168205, JUNE 30, 1970.

IT IS THEREFORE OUR OPINION THAT COHEN HAS SUBMITTED A RESPONSIVE BID, IN THAT THE COST FOR THE ENTIRE JOB, INCLUDING ALL RELATED WORK IS ESTABLISHED, AND THE BIDDER HAS OBLIGATED HIMSELF TO COMPLETE ALL WORK THAT MAY BE REQUIRED BY THE TECHNICAL SPECIFICATIONS AT EACH SITE FOR THE PRICE QUOTED FOR THAT SITE. BY HIS DELIBERATE ACT OF ENTERING THE WORDS "NONE" AND "NONE-ZERO" HE HAS INDICATED THAT NO SEPARATE CHARGES WILL BE MADE FOR THE RELATED SITE CLEARANCE WORK, ALL SUCH WORK BEING INCLUDED IN HIS UNIT PRICE AT EACH SITE. AND SINCE UNIT PRICES FOR EACH UNIT OF PART II ARE SPECIFICALLY STATED AS ZERO FOR THE RELATED WORK, IT CANNOT BE CONCLUDED IN READING THE ENTIRE CONTRACT REQUIREMENT THAT THE BIDDER HAS ASSUMED ANY OBLIGATIONS LESS THAN ALL THE WORK CALLED OUT IN THE SPECIFICATIONS. WE, THEREFORE, MUST CONSIDER THE BID BOTH UNAMBIGUOUS AND RESPONSIVE.

CONCERNING THE FOURTH POINT OF ARGUMENT IN YOUR PROTEST, THE PUBLIC'S BEST INTEREST IS SERVED BY AWARDING TO THE RESPONSIBLE AND RESPONSIVE BIDDER WHOSE AGGREGATE BID FOR PERFORMING ALL OF THE DESCRIBED WORK IS LOWEST. IN VIEW OF OUR CONCLUSIONS, AS SET OUT ABOVE, AND SINCE COHEN'S RESPONSIBILITY DOES NOT APPEAR TO BE IN ISSUE AND ITS TOTAL BID IS SOME $4,800 LESS THAN YOUR SECOND LOW BID, WE ARE UNABLE TO CONCLUDE THAT AN AWARD BASED UPON ITS BID AS SUBMITTED WOULD NOT BE IN THE PUBLIC INTEREST.

IN VIEW OF THE FOREGOING, THE PROTEST OF LIBERTY WRECKING AND BUILDING MATERIALS COMPANY MUST BE DENIED.