B-175879, SEP 15, 1972

B-175879, SEP 15, 1972

BID PROTEST - BIDDING REQUIREMENTS - ALTERNATE ITEMS DENIAL OF PROTEST ON BEHALF OF A.W. CROSS, INC., AGAINST THE AWARD OF CONTRACTS TO OTHER CONCERNS UNDER AN IFB ISSUED BY THE U.S. FOREST SERVICE FOR CONSTRUCTION OF CERTAIN FACILITIES AT THE MONONGAHELA NATIONAL FOREST. SINCE A BIDDER COULD HAVE ENTERED AN UNREALISTICALLY HIGH BID ON THOSE ITEMS IN WHICH HE WAS NOT INTERESTED, THIS SITUATION IS ANALOGOUS TO THOSE IN WHICH IT HAS BEEN HELD THAT FAILURE TO BID ON OPTION QUANTITIES WAS NOT A MATERIAL DEVIATION. SEE B-174575, FEBRUARY 23, 1972. THUS, THE FAILURE BY R.H. ARMSTRONG, INC., TO BID ON PARTS A OR B DID NOT EFFECT THE RESPONSIVENESS OF ITS BID ON PART C. FURTHER, THERE IS NO EVIDENCE INDICATING ANY DELIBERATE INTENT TO MISLEAD ANY PROSPECTIVE BIDDER AS TO THE BIDDING REQUIREMENTS. ACCORDINGLY, THE PROTEST IS DENIED.

TO SEVER AND HARDT:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 11, 1972, AND PRIOR CORRESPONDENCE, CONCERNING THE PROTEST BY A.W. CROSS, INCORPORATED, AGAINST THE AWARD OF CONTRACTS TO OTHER CONCERNS UNDER INVITATION FOR BIDS NO. R9-72-18, A TOTAL SMALL BUSINESS SET-ASIDE, ISSUED NOVEMBER 29, 1971, BY THE UNITED STATES FOREST SERVICE FOR CONSTRUCTION OF CERTAIN FACILITIES AT THE MONONGAHELA NATIONAL FOREST.

THE INVITATION WAS DIVIDED INTO PARTS A, B AND C. PART A WAS FOR CONSTRUCTION OF THE BASIC VISITOR INFORMATION BUILDING AND A SPACE WAS PROVIDED FOR A TOTAL LUMP-SUM BID; PART B INCLUDED FIVE ADDITIVE ALTERNATES TO THE BASIC BUILDING AND SPACES WERE PROVIDED FOR INSERTING PRICES FOR EACH OF THESE ALTERNATES; PART C WAS FOR CONSTRUCTION OF A PARKING LOT AND PICNIC ROAD AND SPACES WERE PROVIDED FOR PRICES FOR VARIOUS COMPONENTS OF THIS WORK.

THE "BASIS OF AWARD" PROVISION ON PAGE 5 OF THE INVITATION PROVIDED:

"BASIS OF AWARD: AWARDS) WILL BE MADE TO THE LOWEST RESPONSIBLE BIDDERS) ON THE BASIS OF THE LOWEST ACCEPTABLE TOTAL BID AMOUNT FOR: (1) PART A ONLY, OR (2) PART C ONLY, OR (3) PART A PLUS PART C, OR (4) PART A PLUS ANY COMBINATION OF ADD ALTERNATES IN PART B, OR (5) PART A PLUS PART C PLUS ANY COMBINATION OF ADD ALTERNATES IN PART B, WHICHEVER IS IN THE BEST INTEREST OF THE GOVERNMENT TO ACCEPT."

PARAGRAPH (E) ON PAGE 1 OF THE SCHEDULE OF ITEMS STATED:

"E. THE BIDDER SHALL INSERT A BID PRICE OPPOSITE EACH PAY ITEM FOR WHICH A QUANTITY APPEARS BELOW. FAILURE TO COMPLETE THE SCHEDULE OF ITEMS IN THIS MANNER MAY DISQUALIFY THE BID."

AMENDMENT NO. 3 TO THE SOLICITATION REITERATED PARAGRAPH (E).

SIX BIDS WERE RECEIVED AND OPENED ON JANUARY 28, 1972. TWO OF THE BIDDERS DID NOT BID ON ALL ITEMS. WASHINGTON ENGINEERING AND CONSTRUCTION COMPANY DID NOT BID ON PART C, AND R. H. ARMSTRONG DID NOT BID ON PARTS A OR B.

CONTRACTS WERE AWARDED TO GUY JOHNSTON CONSTRUCTION COMPANY FOR PART A IN THE AMOUNT OF $202,000 AND ALTERNATE NO. 1 IN THE AMOUNT OF $14,500 FOR A TOTAL OF $216,500, AND TO R. H. ARMSTRONG, INCORPORATED, FOR PART C IN AN AMOUNT OF $149,691.30. NO AWARD WAS MADE FOR ALTERNATES 2, 3, 4 AND 5 UNDER PART B. THE FOLLOWING IS A COMPARISON OF RELEVANT BIDS:

GUY JOHNSTON ARMSTRONG CROSS

PART A $202,000 $213,469

PART B

ALTERNATE NO. 1 14,500 12,019

2 44,500 34,990

3 33,700 31,978

4 23,500 13,745

5 8,500 13,644

PART C $270,000 $149,691.30 $174,344

THE ABOVE INFORMATION INDICATES THAT THE AWARDS MADE HAVE RESULTED IN A SAVINGS TO THE GOVERNMENT OF OVER $33,000 COMPARED TO A SINGLE AWARD TO YOUR CONCERN FOR COMPARABLE ITEMS.

IT IS YOUR POSITION THAT AWARDS COULD NOT BE MADE IN THE ABOVE MANNER. YOU STATE THAT PARAGRAPH (E), QUOTED ABOVE, REQUIRES A BID ON ALL ITEMS AND THAT CROSS WAS SO ADVISED BY THE CONTRACTING OFFICER. THEREFORE, YOU CONTEND ARMSTRONG'S BID WAS NONRESPONSIVE FOR FAILING TO BID ON PARTS A AND B. IN THIS REGARD YOU HAVE SUBMITTED THE SWORN STATEMENT OF ANOTHER POTENTIAL SUPPLIER PRESENT AT THE PRE-BID CONFERENCE ADVISING THAT NO BID WAS SUBMITTED BY THAT CONCERN SINCE IT WAS OF THE FIRM OPINION THAT A BID WAS REQUIRED ON ALL ITEMS BASED ON THE REPRESENTATIONS MADE BY THE CONTRACTING OFFICER. YOU STATE THAT ON THE BASIS OF THE QUOTED PROVISION OF PARAGRAPH (E) AND THE ORAL ADVICE, WHICH ARE INCONSISTENT WITH THE "BASIS OF AWARD" PROVISION, CROSS WAS THE LOW RESPONSIVE BIDDER. YOUR FINAL POINT IS THAT THE FAILURE TO AWARD ALL OF THE ALTERNATES UNDER PART B WILL GIVE THE GOVERNMENT AN INCOMPLETE BUILDING WITHOUT PLUMBING, ELECTRICITY OR DOORS AND THAT THE GOVERNMENT WILL HAVE TO ISSUE A NEW SOLICITATION TO MODIFY THE EXISTING CONTRACT.

THE BASIS OF AWARDS PROVISION SPECIFICALLY RESERVED THE RIGHT TO THE GOVERNMENT TO SPLIT THE AWARDS FOR PARTS A AND C. ONLY WITH RESPECT TO PART A AND SUCH ITEMS OF PART B AS MIGHT BE AWARDED, DID THE SOLICITATION CONTEMPLATE AN AWARD TO ONE BIDDER. ARMSTRONG OBVIOUSLY WAS ONLY INTERESTED IN AN AWARD FOR PART C. UNDER YOUR LINE OF REASONING BEFORE BEING ELIGIBLE FOR AN AWARD FOR PART C, ARMSTRONG WAS ALSO REQUIRED TO BID ON PARTS A AND B. HOWEVER, THERE IS NOTHING IN THE SOLICITATION THAT WOULD HAVE PREVENTED ARMSTRONG FROM INSERTING AN UNREALISTIC PRICE FOR THOSE PARTS IN WHICH ARMSTRONG WAS NOT INTERESTED THEREBY AVOIDING AN AWARD FOR THOSE ITEMS. INSTEAD ARMSTRONG CHOSE NOT TO BID ON THOSE PARTS. WE FIND THIS SITUATION ANALAGOUS TO CASES INVOLVING OPTIONAL QUANTITIES WHERE UNDER THE TERMS OF THE SOLICITATION BIDDERS ARE FREE TO QUOTE UNREALISTICALLY HIGH OPTION PRICES AND IT IS HELD THAT THE FAILURE TO SUBMIT OPTION PRICES IS NOT MATERIAL EVEN THOUGH CALLED FOR BY THE TERMS OF THE SOLICITATION. SEE B-174575, FEBRUARY 23, 1972, 51 COMP. GEN. ; B- 166138, APRIL 11, 1969; B 165799, FEBRUARY 27, 1969. IN THE CIRCUMSTANCES WE FIND THAT THE FAILURE TO BID ON PARTS A OR B WOULD NOT AFFECT THE RESPONSIVENESS OF ARMSTRONG'S BID.

THE CONTRACTING OFFICER ADMITS THAT AT THE PRE-BID CONFERENCE, IN RESPONSE TO THE QUESTION "DO WE HAVE TO BID ON ALL ITEMS?", HE REPLIED, "YES, FAILURE TO DO SO MAY DISQUALIFY YOUR BID." WE ARE ADVISED THAT THE CONTRACTING OFFICER'S STATEMENT WAS INTENDED TO APPLY ONLY IF THE GOVERNMENT DECIDED TO MAKE AN AWARD FOR A PART FOR WHICH THE BIDDER HAD ELECTED NOT TO BID. THIS APPARENTLY ALSO WAS THE INTENDED INTERPRETATION OF PARAGRAPH (E), PAGE 1, SCHEDULE OF ITEMS, WHICH WAS REITERATED IN AMENDMENT 3.

WE BELIEVE BIDDERS COULD HAVE BEEN MORE CLEARLY ADVISED WHETHER OR NOT A BID WAS REQUIRED ON ALL PARTS AND MORE IS SAID ON THIS IN THE ENCLOSED COPY OF THE LETTER TO THE SECRETARY OF AGRICULTURE. HOWEVER, WE HAVE NOT FOUND ANY EVIDENCE ESTABLISHING ANY DELIBERATE INTENT TO MISLEAD YOUR CONCERN OR ANY OTHER PROSPECTIVE BIDDER. WE ALSO FIND THAT ADEQUATE COMPETITION TO INSURE REASONABLE PRICES WAS OBTAINED UNDER THE SOLICITATION. IN THE CIRCUMSTANCES WE CANNOT CONCLUDE THAT THE SOLICITATION SHOULD BE INVALIDATED.

THE REASON GIVEN BY THE CONTRACTING OFFICER FOR NOT MAKING AN AWARD FOR ALL OF THE ALTERNATES UNDER PART B IS THAT ONLY $240,000 WAS AVAILABLE FOR THE BUILDING. YOU ADVISE THAT THERE WAS NO DEFINITE ALLOCATION BETWEEN THE BUILDING AND PARKING LOT AND THAT FUNDS THEREFORE COULD BE MOVED FROM ONE CATEGORY TO ANOTHER AS THE NEED DICTATED. HOWEVER, EVEN CONCEDING YOUR CONTENTION, IT HAS NOT BEEN SHOWN THAT THE TOTAL FUNDS AVAILABLE WERE SUFFICIENT TO COVER AN AWARD FOR ALL OF THE ALTERNATES IN ADDITION TO THE OTHER TWO PARTS. IN ANY EVENT THE DECISION NOT TO MAKE AWARDS FOR ALL OF THE ALTERNATES WAS CONSISTENT WITH THE TERMS OF THE SOLICITATION AND WE HAVE FOUND NO EVIDENCE THAT THE CONTRACTING OFFICER'S EXERCISE OF DISCRETION IN THIS REGARD WAS BASED ON FAVORITISM. THE FOREST SERVICE'S SUPPLEMENTAL REPORT STATES THAT IF ADDITIONAL FUNDING BECOMES AVAILABLE IN 1973 FOR THE UNACCEPTED ALTERNATES, THERE WILL BE AN ADVERTISED SOLICITATION FOR THESE REQUIREMENTS RATHER THAN ISSUING CHANGE ORDERS TO THE CONTRACTOR.

FOR THESE REASONS YOUR PROTEST IS DENIED.