B-173471, NOV 19, 1971

B-173471, NOV 19, 1971

BID PROTEST - INSUFFICIENT FUNDS - DETERMINATION OF LOW BIDDER DECISION DENYING PROTEST AGAINST AWARD OF A CONTRACT TO SIDNEY SOKOLOFF UNDER AN IFB ISSUED BY THE NAVAL SHIP ENGINEERING CENTER FOR REPLACEMENT OF AN AIR CONDITIONING SYSTEM AT THE PHIL., PA., NAVAL BASE. WHILE PROTESTANT'S TOTAL BID FOR THE BASE AND ADDITIVE ITEMS WAS LOWER THAN SUCCESSFUL OFFEROR'S, BECAUSE INSUFFICIENT FUNDS WERE AVAILABLE, ONLY ENOUGH FUNDS WERE ADDED TO REACH THE LOWEST BID ON THE BASE ITEM - SOKOLOFF'S. THEREAFTER, ADDITIONAL FUNDS WERE SUPPLIED AND AWARD MADE TO THE LOW BIDDER FOR THE BASE ITEM AND TWO ADDITIVES, THE ONLY QUALIFICATION BEING THE PRICE FOR COMBINATION ON WHICH AWARD WAS MADE DID NOT EXCEED THE PRICE OFFERED BY ANY OTHER BIDDER FOR THE SAME COMBINATION OF ITEMS. THIS BEING SATISFIED, THERE IS NO BASIS TO OBJECT TO THE CONTRACT AS AWARDED.

TO DRINKER, BIDDLE AND REATH:

REFERENCE IS MADE TO LETTERS DATED JUNE 30 AND JULY 12, 1971, PROTESTING ON BEHALF OF FLUIDICS, INCORPORATED, AGAINST AWARD OF CONTRACT NO. N62472- 71-C-0225, DATED JUNE 30, 1971, TO SIDNEY SOKOLOFF FOR REPLACEMENT OF THE AIR CONDITIONING SYSTEM OF BUILDING 633, NAVAL SHIP ENGINEERING CENTER, UNITED STATES NAVAL BASE, PHILADELPHIA, PENNSYLVANIA.

THE CONTRACT WAS AWARDED PURSUANT TO INVITATION FOR BIDS NO. N62472 71-B- 0225, DATED MAY 14, 1971, AS AMENDED WHICH INCORPORATED NAVFAC SPECIFICATION NO. 04-71-0225. BID PRICES WERE REQUESTED ON A BASE BID ITEM (ITEM NO. 1), AND ON FOUR ADDITIVE ITEMS (ITEM NOS. 2, 3, 4 AND 5). THE CONTRACT WAS AWARDED TO SIDNEY SOKOLOFF ON THE BASIS OF HIS BASE BID PRICE OF $184,232, AND THE PRICES OF $10,120 AND $4,950 WHICH WERE QUOTED IN HIS BID ON THE FIRST TWO OF THE FOUR ADDITIVE ITEMS. THE TOTAL CONTRACT AMOUNT OF $199,302 WAS LOWER THAN THE TOTAL OF THE PRICES QUOTED BY FLUIDICS ON BID ITEM NOS. 1, 2 AND 3. HOWEVER, WITH THE CONSIDERATION OF ALL FOUR ADDITIVE ITEMS, TOTAL PRICES WERE, AS YOU STATE, FOR FLUIDICS $205,122 AND $209,972 FOR SOKOLOFF. YOU CONTEND THAT NO AWARD SHOULD HAVE BEEN MADE PURSUANT TO THE INVITATION FOR BIDS BECAUSE NO BIDS WERE RECEIVED WHICH WERE WITHIN THE FUNDS AVAILABLE AT OR BEFORE THE TIME BIDS WERE OPENED.

PARAGRAPH 1C.5 OF NAVFAC SPECIFICATION NO. 04-71-0225 PROVIDES IN PART AS FOLLOWS:

" *** THE LOW BIDDER FOR PURPOSES OF AWARD SHALL BE THE CONFORMING RESPONSIBLE BIDDER OFFERING THE LOW AGGREGATE AMOUNT FOR THE FIRST OR BASE BID ITEM, PLUS OR MINUS (IN THE ORDER OF PRIORITY LISTED IN THE SCHEDULE) THOSE ADDITIVE OR DEDUCTIVE BID ITEMS PROVIDING THE MOST FEATURES OF THE WORK WITHIN THE FUNDS DETERMINED BY THE GOVERNMENT TO BE AVAILABLE BEFORE BIDS ARE OPENED. *** THE LISTED ORDER OF PRIORITY NEED BE FOLLOWED ONLY FOR DETERMINING THE LOW BIDDER. AFTER DETERMINATION OF THE LOW BIDDER AS STATED, AWARD IN THE BEST INTERESTS OF THE GOVERNMENT MAY BE MADE TO HIM ON HIS BASE BID AND ANY COMBINATION OF HIS ADDITIVE OR DEDUCTIVE BID FOR WHICH FUNDS ARE DETERMINED TO BE AVAILABLE AT THE TIME OF AWARD, PROVIDED THAT AWARD ON SUCH COMBINATION OF BID ITEMS DOES NOT EXCEED THE AMOUNT OFFERED BY ANY OTHER CONFORMING RESPONSIBLE BIDDER FOR THE SAME COMBINATION OF BID ITEMS."

IT HAS BEEN REPORTED BY THE NAVAL FACILITIES ENGINEERING COMMAND THAT, AS OF THE TIME OF THE OPENING OF BIDS, THE GOVERNMENT CONTROL ACCOUNT INDICATED THAT THE AMOUNT OF $165,304 WOULD BE AVAILABLE FOR THE PROJECT. NO BIDDER SUBMITTED A BID ON ITEM NO. 1 WHICH WAS WITHIN THE CONTROL AMOUNT AND ADDITIONAL FUNDS WERE NECESSARY FOR THE PURPOSES OF MAKING AN AWARD PURSUANT TO THE INVITATION FOR BIDS. WE ARE ADVISED THAT ORDINARILY ONLY ENOUGH FUNDS ARE ADDED TO THE CONTROL AMOUNT TO REACH THE LOWEST BIDDER ON THE BASE BID ITEM, AND THE LOW BIDDER FOR PURPOSES OF AWARD IS DETERMINED IN THIS MANNER. SIDNEY SOKOLOFF SUBMITTED A BASE BID PRICE OF $184,232. SINCE THIS WAS THE LOWEST PRICE QUOTED ON THE BASE BID ITEM, HIS BID WAS THE FIRST BID REACHED WHEN ADDITIONAL FUNDS WERE ADDED TO THE CONTROL AMOUNT.

IT IS THE POSITION OF THE NAVAL FACILITIES ENGINEERING COMMAND THAT ADDITIONAL FUNDS MAY BE SUPPLIED AFTER DETERMINATION OF THE LOW BIDDER, THAT AWARD MAY BE MADE ON A DIFFERENT COMBINATION OF BID ITEMS FROM THAT WHICH DETERMINED THE LOW BIDDER, AND THAT THE ONLY QUALIFICATION IS THAT THE PRICE FOR THE COMBINATION ON WHICH AWARD IS MADE MUST NOT EXCEED THE PRICE OFFERED BY ANY OTHER BIDDER FOR THE SAME COMBINATION OF BID ITEMS. THE ADMINISTRATIVE INTERPRETATION IS CONSISTENT WITH THE POSITION TAKEN BY OUR OFFICE IN B-170795, OCTOBER 6, 1970, COPY ENCLOSED.

THE AWARD TO SIDNEY SOKOLOFF WAS CONSISTENT WITH THE TERMS AND CONDITIONS OF THE INVITATION FOR BIDS CONCERNING THE MATTER OF DETERMINING THE LOW BIDDER. ALTHOUGH IT WAS NECESSARY TO PROVIDE ADDITIONAL FUNDS FOR THE PROJECT AFTER OPENING OF BIDS, THE INCREASE IN AVAILABLE FUNDS AS OF THE TIME OF AWARD WAS NOT PREJUDICIAL TO ANY BIDDER, AND THERE APPEARS TO BE NO REASONABLE BASIS FOR CONCLUDING THAT AN AWARD SHOULD NOT HAVE BEEN MADE PURSUANT TO THE INVITATION.

YOU POINT OUT THAT ASPR 2-407.8(B)(3), PROVIDES IN PART THAT, WHERE A WRITTEN PROTEST AGAINST THE MAKING OF AN AWARD IS RECEIVED, AWARD SHALL NOT BE MADE UNTIL THE MATTER IS RESOLVED, UNLESS THE CONTRACTING OFFICER DETERMINES THAT AN EMERGENCY EXISTS. THE NAVY RECORDS INDICATE THAT YOUR LETTER WAS RECEIVED AT 1:55 P.M., JUNE 30, 1971. THE BEST INFORMATION TENDS TO INDICATE THAT THE ACCEPTANCE OF THE BID OF SIDNEY SOKOLOFF WAS MAILED BEFORE NOON ON THAT DATE. SINCE THE PROTEST APPEARS TO HAVE BEEN RECEIVED AFTER AWARD, THE APPLICABLE PROVISION OF ASPR WOULD BE 2-407.8(C) RATHER THAN THE PROVISION CITED BY YOU. IN THE CIRCUMSTANCES WE FIND NO BASIS FOR CONCLUDING THAT YOUR PROTEST WAS ADMINISTRATIVELY MISHANDLED.

ACCORDINGLY, THE PROTEST SUBMITTED ON BEHALF OF FLUIDICS IS HEREBY DENIED.