B-173447, JAN 12, 1972

B-173447, JAN 12, 1972

BID PROTEST - CANCELLATION FOR AMBIGUITY DECISION DENYING PROTEST BY VENTILATION CLEANING ENGINEERS, INC., AGAINST THE CANCELLATION AND RESOLICITATION OF LOT #1 FOR THE CLEANING OF EXHAUST AND DISHWASHER DUCTS UNDER AN IFB ISSUED BY HEADQUARTERS, U.S. ARMY, HAWAII. THE EVIDENCE INDICATES THAT PROTESTANT'S BID IS AMBIGUOUS AND THAT SUBMITTED CORRECTIONS CONSTITUTE SUBSTANTIAL CHANGES. ALLOWING A SUBSTANTIAL CHANGE AFTER OPENING WOULD BE EQUIVALENT TO ALLOWING A BIDDER TO SUBMIT A NEW BID. ACCORDINGLY, THE PROTEST MUST BE DENIED.

TO VENTILATION CLEANING ENGINEERS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 28, 1971, PROTESTING THE CANCELLATION AND RESOLICITATION OF LOT #1, ITEMS 1 THRU 5, OF INVITATION FOR BID (IFB) NO. DAGA01-71-B-0101 ISSUED BY HEADQUARTERS, UNITED STATES ARMY, HAWAII.

YOUR BASIS OF PROTEST IS THAT THE CONTRACTING OFFICER LACKED A COMPELLING REASON TO CANCEL AND READVERTISE AND IS THEREFORE NOT IN COMPLIANCE WITH ASPR 2-404.1. YOU STATE THAT "A SIMPLE SCHEDULE DEFICIENCY" DOES NOT APPEAR TO BE THE "COMPELLING REASON" CONTEMPLATED BY THE REGULATION. YOU ALSO INDICATE SPECIAL CONCERN BECAUSE YOUR BID PRICE FOR THESE ITEMS WAS REVEALED WHEN THE BIDS WERE PUBLICLY OPENED.

IFB DAGA01-71-B-0101 SOLICITED 12 FIRMS TO BID ON CLEANING SERVICES (INCLUDING LABOR, MATERIALS AND EQUIPMENT) OF EXHAUST DUCTS IN SPECIFIED KITCHEN, FOOD SERVING AND GENERAL HOSPITAL AREAS, PLUS FRESH AIR AND AIR CONDITIONING SYSTEMS IN CERTAIN IDENTIFIED AREAS. THE AREA IDENTIFICATIONS WERE NUMEROUS AND WERE BROKEN DOWN INTO LOT I, CONSISTING OF ITEMS 1 THRU 5; LOT II, CONSISTING OF ITEMS 6 AND 7; AND, LOT III, CONSISTING OF ITEMS 8 THROUGH 17.

BIDS WERE RECEIVED FROM ONLY ONE FIRM, AERO-DUCT CLEANING SERVICE OF HAWAII, IN ADDITION TO YOURS. ON LOT II YOU WERE LOW BIDDER AND RECEIVED THE AWARD. ON LOT III AERO-DUCT RECEIVED THE AWARD AS LOW BIDDER. EACH INSTANCE THE BIDS WERE QUITE CLOSE AND COMPETITIVE.

VENTILATION AERO-DUCT

LOT II $1,849.00 $1,970.00

LOT III $2,668.00 $2,480.00

THESE PARTS OF THE IFB ARE NOT IN QUESTION HERE AND ARE INCLUDED IN THIS DISCUSSION TO DEMONSTRATE THE CLOSENESS OF THE COMPETITION BETWEEN THE TWO FIRMS WHEN BIDDING TO A COMMONLY UNDERSTOOD DESCRIPTION OF WORK.

EXAMINATION OF THE RECORD IN CONNECTION WITH LOT I IMMEDIATELY RAISES A NUMBER OF QUESTIONS CONCERNING THE CLARITY OF THE WORK DESCRIPTION AND THE UNDERSTANDING OF THE BIDDERS CONCERNING THE AMOUNT OF WORK TO BE PERFORMED. ITEMS 2, 3, 4 AND 5 WHICH WERE QUITE CLEARLY IDENTIFIED WERE BID AS FOLLOWS, WITH THE GOVERNMENT'S ESTIMATE SHOWN IN THE LAST COLUMN.

ITEM VENTILATION AERO-DUCT GOVT. EST.

2$5,271.00 $20,000.00 $16,128.00

3 480.00 2,500.00 1,950.00

4 145.001,500.00 1,295.00

5 977.00 4,750.00 1,696.00

IN EACH INSTANCE THE DISPARITY BETWEEN YOUR LOW PRICE AND THE BID OF AERO -DUCT IS OF SUCH MAGNITUDE THAT QUESTIONS ARE IMMEDIATELY RAISED. ONLY SLIGHTLY LESS DISPARITY OCCURS WHEN YOUR PRICE IS COMPARED WITH THE GOVERNMENT'S ESTIMATE. CLEARLY THIS PUT THE CONTRACTING OFFICER ON NOTICE THAT A POSSIBLE MISUNDERSTANDING OF REQUIREMENTS MAY HAVE OCCURRED IN YOUR BID. FURTHER CONFUSION IS APPARENT IN ITEM 1 WHERE YOU INSERTED THREE SETS OF FIGURES IDENTIFYING THEM AS:

ITEM

1 (YOU INSERTED WORD "INITIAL" $1,620.00

AND CREATED A NEW LINE ENTRY)

1A ALL FOR 9,343.00

1B 2 CLEANING 850.00

THE AERO-DUCT BID ON THIS SAME ITEM WAS:

ITEM AERO-DUCT

1A$1,000.00

1B (2 CLEANINGS) 500.00

OBVIOUSLY THERE IS NO VALID BASIS FOR COMPARING YOUR THREE PRICES WITH THE TWO OF AERO-DUCT UNLESS THE $9,343.00 (1A) ENTRY IS OMITTED IN EVALUATING YOUR BID. THIS WOULD LEAVE YOUR PRICE HIGHER THAN YOUR COMPETITORS BUT IN A SIMILAR PATTERN.

CLEARLY THE IFB CALLED FOR TWO ELEMENTS OF WORK FOR EACH OF THE LOCATIONS LISTED FOR ITEM 1. FIRST, WAS AN INITIAL CLEANING OF GENERAL AND GREASE EXHAUST DUCTS AND DISHWASHER DUCTS IN THE KITCHENS, PART A., WHILE PART B. CALLED OUT TWO SUBSEQUENT CLEANINGS BUT LIMITED TO THE GREASE EXHAUST DUCTS IN THE KITCHENS. THIS APPEARS TO OFFER SOME POSSIBLE EXPLANATION FOR YOUR FIGURES OF $1,620 FOR "INITIAL" CLEANING AND $850.00 FOR THE OTHER TWO CLEANINGS. IT IS CONSISTENT WITH THE OTHER BID BUT DOES NOT ACCOUNT FOR THE ITEM YOU SHOW AS 1A IN THE AMOUNT OF $9,343.00.

CONCERNING YOUR ENTRY OF "ALL FOR-----$9,343.00" ALTHOUGH ENTERED OPPOSITE SUBPARAGRAPH A. OF ITEM 1, IT IS INCONSISTENT WITH ANY OF THE OTHER FIGURES RELATED TO THIS PART OF THE WORK, AND WE ARE UNABLE TO CORRELATE IT WITH ANY OTHER PART OF THE BID EXCEPT THAT IT COINCIDES WITH THE TOTAL FOR ALL OTHER ITEMS IN LOT I, I.E.,

ITEM AMOUNT

1 $1,620.00

1B 850.00

2 5,271.00

3 480.00

4 145.00

5 977.00

$9,343.00

IT IS ALSO OBSERVED THAT USING THIS AS THE LOT I TOTAL WHEN ADDED TO LOTS II AND III EQUALS THE AMOUNT OF $13,860.00 YOU ENTERED ON THE FACE OF YOUR BID FORM.

LOT I $ 9,343.00

LOT II 1,849.00

LOT III 2,668.00

$13,860.00

IN OUR VIEW IT IS HIGHLY UNLIKELY THAT THESE RELATIONSHIPS ARE MERE HAPPENSTANCE.

THE CONTRACTING OFFICER WROTE TO YOU ON JUNE 8 POINTING OUT THE POSSIBILITY OF A MISTAKE IN YOUR BID AS TO ITEMS 2, 3, 4 AND 5 AND DISCUSSED ITEM 1 SEPARATELY. IN YOUR RESPONSE OF JUNE 11 YOU CLAIMED TWO CLERICAL ERRORS. ONE ASKED FOR ELIMINATION OF THE WORD "INITIAL" WHICH HAD BEEN INSERTED PRIOR TO YOUR FIGURE OF $1,620.00 WHICH IN TURN HAD BEEN ENTERED IN YOUR BID WITHOUT SHOWING A POSITIVE RELATIONSHIP TO ANY OF THE LINE ITEMS ON WHICH BIDS WERE ASKED. YOU ALSO ASKED TO HAVE THE FIGURE OF $13,860.00 DISREGARDED ON THE FACE OF THE BID FORM, BUT FURNISHED NO EXPLANATION FOR IT. YOU ALSO INJECTED A NEW FIGURE OF $18,686.00 CLAIMING IT AS THE "GRAND TOTAL FOR LOT #1". NO EXPLANATION WAS INCLUDED AS TO WHY THIS FIGURE SHOULD BE ACCORDED MORE VALIDITY THAN THE OTHER POSSIBLE TOTAL FOR LOT 1 OF $9,343, OR THE TOTAL FOR ALL THREE LOTS OF $13,860.

FROM THE FOREGOING FACTS WE MUST CONCLUDE THAT, AT THE VERY LEAST, YOUR BID IS AMBIGUOUS. ON THE RECORD IT CANNOT BE STATED WITH ANY CERTAINTY WHAT THE INTENDED LOT I PRICE IS, IF, AS YOU ESTABLISHED IN YOUR LETTER OF JUNE 11, IT WAS NOT THE $9,343.00 AS SUMMED UP IN AN EARLIER PARAGRAPH. INTRODUCTION OF A PROPOSED TOTAL OF $18,686.00, WHICH IS A COMPLETELY NEW AND INCREASED FIGURE BEYOND ANY PRICES INCLUDED WITH YOUR ORIGINAL BID LEAVES THE BID IN AN UNRESOLVED AND CLEARLY AMBIGUOUS STATUS.

IN ADHERING TO THE RULE THAT AN AMBIGUOUS BID DOES NOT CONSTITUTE AN OFFER WHICH MAY PROPERLY BE ACCEPTED, OUR OFFICE HAS LONG HELD THAT TO PERMIT A BIDDER TO MAKE HIS BID RESPONSIVE BY CHANGING, ADDING TO, OR DELETING A MATERIAL PART OF THE BID ON THE BASIS OF AN EXPLANATION FURNISHED AFTER OPENING WOULD BE TANTAMOUNT TO PERMITTING A BIDDER TO SUBMIT A NEW BID. (B-170205, SEPTEMBER 9, 1970, AND CASES CITED THEREIN). QUITE OBVIOUSLY THE "CORRECTIONS" PROPOSED IN YOUR LETTER CONSTITUTE SUBSTANTIVE CHANGES RATHER THAN MERE "CORRECTION OF CLERICAL MISTAKES." THIS IS ESPECIALLY APPARENT WHEN SUPPORTING EVIDENCE OF MISTAKE IS LACKING AS IS THE CASE HERE.

WHILE IT IS NOTED THAT YOUR PROTEST WAS AGAINST CANCELLING THE IFB, IT IS APPARENT THAT POSITION WAS PREMISED ON THE POSSIBILITY THAT YOUR BID COULD BE ACCEPTED. SINCE THE AMBIGUITY IN YOUR BID PRECLUDES ANY AWARD TO YOU FOR LOT I, AND IT IS THEREFORE TO YOUR ADVANTAGE THAT THIS PORTION OF THE WORK BE READVERTISED, WE ASSUME THAT ANY FURTHER DISCUSSION OF THIS PORTION OF YOUR PROTEST IS UNNECESSARY.

FOR THE FOREGOING REASONS YOUR PROTEST MUST BE DENIED.