B-180345, APR 23, 1974

B-180345: Apr 23, 1974

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COMPELLING REASON EXISTS FOR CANCELLING IFB AND RESOLICITING BIDS WHERE BIDDING INSTRUCTIONS WERE AMBIGUOUS AND MAY HAVE RESULTED IN FAILURE OF THREE OF THE BIDDERS. IT WAS FOUND THAT THREE OF THE BIDDERS. WHILE ANOTHER BIDDER CLAIMED THAT THE IFB WAS MISLEADING AND SHOULD BE CANCELLED. THE NAVY AGREES THAT THE SOLICITATION WAS AMBIGUOUS AND PROPOSES TO CANCEL IT AND READVERTISE. KLEEN-RITE NOW CONTENDS THAT IT IS ENTITLED TO CONTRACT AWARD SINCE IT IS THE LOWEST RESPONSIVE BIDDER. THE SCHEDULE OF THE BIDDING FORM INCLUDED A DESCRIPTION OF THE REQUIRED SERVICES WHICH WAS IDENTICAL TO THE ABOVE-QUOTED SPECIFICATIONS. BLANK SPACES FOR INSERTING UNIT PRICES AND TOTAL PRICES (THE UNIT PRICE MULTIPLIED BY THE ESTIMATED QUANTITY) WERE ALSO PROVIDED IN SEPARATE COLUMNS IN THE SCHEDULE NEXT TO THE DESCRIPTIONS OF ITEM NOS. 1-A.

B-180345, APR 23, 1974

COMPELLING REASON EXISTS FOR CANCELLING IFB AND RESOLICITING BIDS WHERE BIDDING INSTRUCTIONS WERE AMBIGUOUS AND MAY HAVE RESULTED IN FAILURE OF THREE OF THE BIDDERS, INCLUDING THE TWO LOWEST BIDDERS, TO INSERT SEPARATE BID PRICES FOR ITEM 2, CALLING FOR ADDITIONAL COST OF FURNISHING JANITORIAL SERVICES DURING REGULAR WORKING HOURS IN LIEU OF WORKING HOURS OTHERWISE SPECIFIED, AND CAUSED ANOTHER BIDDER TO BID MORE FOR THIS ITEM THAN IT DID FOR THE BASIC ITEM.

TO KLEEN-RITE JANITORIAL SERVICES, INC.; SURF CLEANERS, INC.;

NATIONWIDE BUILDING MAINTENANCE, INC.:

INVITATION FOR BIDS (IFB) N62477-74-C-1915, ISSUED NOVEMBER 15, 1973, BY THE PATUXENT RIVER, MARYLAND, NAVAL AIR STATION, SOLICITED BIDS FOR JANITORIAL SERVICES TO BE PERFORMED AT PATUXENT AND AT ANOTHER NEARBY FACILITY. AT BID OPENING ON DECEMBER 18, 1973, IT WAS FOUND THAT THREE OF THE BIDDERS, INCLUDING THE TWO LOWEST BIDDERS ON ITEM 1, DID NOT SUBMIT A BID ON ITEM 2 OR OTHERWISE INDICATE THAT THERE WOULD BE NO CHARGE FOR THE ITEM. KLEEN-RITE JANITORIAL SERVICES, INC. (KLEEN RITE), THE THIRD LOW BIDDER, THEN PROTESTED AN AWARD TO ANY OTHER BIDDER, WHILE ANOTHER BIDDER CLAIMED THAT THE IFB WAS MISLEADING AND SHOULD BE CANCELLED. THE LOW BIDDER CONTENDS THAT IT DID NOT INTEND AN ADDITIONAL CHARGE FOR ITEM 2 AND THAT IT AGREED TO SATISFACTORILY PERFORM BY SUBMITTING A BID AND ACKNOWLEDGING THE AMENDMENT WHICH ADDED ITEM 2. THE NAVY AGREES THAT THE SOLICITATION WAS AMBIGUOUS AND PROPOSES TO CANCEL IT AND READVERTISE. KLEEN-RITE NOW CONTENDS THAT IT IS ENTITLED TO CONTRACT AWARD SINCE IT IS THE LOWEST RESPONSIVE BIDDER.

THE SPECIFICATIONS, AS AMENDED, REQUIRED SUBMISSION OF BIDS UPON THE FOLLOWING:

ITEM 1-(A) PRICE FOR ALL WORK COMPLETE IN ACCORDANCE WITH NAVFAC SPECIFICATION NO. 21-74-1915 WITH THE EXCEPTION OF DAILY SERVICES IN AREAS DESIGNATED AS LIVING SPACE (BEDROOMS, ETC.) SHOWN AS CODE B ON ATTACHED PLATES.

ITEM 1-(B) PRICE FOR ALL WORK COMPLETE IN LIVING SPACES (BEDROOMS, ETC.) AS SHOWN ON CODE B ON ATTACHED PLATES OF NAVFAC SPECIFICATION NO. 21-74- 1915 IN THE FOLLOWING CATEGORIES

(1) UNIT PRICE FOR ONE OCCURRENCE OF COMPLETE DAILY SERVICE (CLEANING/MAKE BED/LINEN CHANGE) FOR 2-ROOM APARTMENTS WITH BATH.

(2) UNIT PRICE FOR ONE OCCURRENCE OF COMPLETE DAILY SERVICE *** FOR 1- ROOM APARTMENTS WITH BATH.

(3) UNIT PRICE FOR ONE OCCURRENCE OF COMPLETE DAILY SERVICE *** FOR 1- ROOM APARTMENTS WITHOUT BATH.

ITEM 2-ADDITIONAL COST FOR ALL WORK COMPLETE TO BE ACCOMPLISHED DURING THE REGULAR WORKING HOURS OF 0730 TO 1600 IN LIEU OF THE WORKING HOURS SPECIFIED ***.

IN ADDITION, THE SPECIFICATION PROVIDED THAT THE PRICE FOR ITEM 2 WOULD BE INCLUDED IN DETERMINING THE LOWEST AGGREGATE BIDDER. THE SCHEDULE OF THE BIDDING FORM INCLUDED A DESCRIPTION OF THE REQUIRED SERVICES WHICH WAS IDENTICAL TO THE ABOVE-QUOTED SPECIFICATIONS. BLANK SPACES FOR INSERTING UNIT PRICES AND TOTAL PRICES (THE UNIT PRICE MULTIPLIED BY THE ESTIMATED QUANTITY) WERE ALSO PROVIDED IN SEPARATE COLUMNS IN THE SCHEDULE NEXT TO THE DESCRIPTIONS OF ITEM NOS. 1-A, 1-B, 1-B(2) AND 1-B(3). INTERJECTED BETWEEN THE ABOVE ITEM NUMBERS AND ITEM NO. 2 WAS A BLANK SPACE FOR THE "GRAND TOTAL ITEMS 1A,1B(1,2,&3)." HOWEVER, DIRECTLY BENEATH THE GRAND TOTAL, THE DESCRIPTION OF ITEM NO. 2 WAS SO SITUATED AS TO LEAVE NO SPACE FOR A BLANK FOR INSERTING A PRICE.

IN ESSENCE, KLEEN-RITE SUBMITS THAT THE SOLICITATION WAS NOT CONFUSING OR AMBIGUOUS AND THAT THE TWO LOWEST BIDDERS, WHO FAILED TO INSERT A PRICE OR INDICATE THAT NO CHARGE WAS INTENDED FOR ITEM 2, SUBMITTED UNAMBIGUOUS BIDS WHICH WERE NONRESPONSIVE. MOREOVER, KLEEN RITE CONTENDS THAT CANCELLATION AND READVERTISEMENT AFTER EXPOSURE OF ITS BID WOULD HAVE AN OBVIOUS PREJUDICIAL EFFECT.

WE RECOGNIZE THAT AFTER BIDS HAVE BEEN OPENED, PRESERVATION OF THE INTEGRITY OF THE COMPETITIVE BID SYSTEM REQUIRES THAT AWARD BE MADE TO THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER UNLESS THERE IS A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE INVITATION. ASPR 2-404.1. IN A RECENT CASE CITED BY KLEEN-RITE, WE POINTED OUT THAT "MERE UTILIZATION IN AN IFB OF INADEQUATE, AMBIGUOUS OR OTHERWISE DEFICIENT SPECIFICATIONS IS NOT, ABSENT A SHOWING OF PREJUDICE, A 'COMPELLING REASON' TO CANCEL AN IFB AND READVERTISE." B-179744, FEBRUARY 13, 1974 (53 COMP. GEN. ). IN THAT CASE THE SPECIFICATIONS REFERENCED A NUMBER OF BRAND NAME MANUFACTURERS OF SPECIFIED FILM AND LISTED AS A SALIENT CHARACTERISTIC OF EACH OF THE REFERENCED FILMS A CERTAIN DESIGN FEATURE. THE LOW BIDDER'S BRAND NAME FILM DID NOT INCLUDE THE LISTED DESIGN FEATURE BUT INCORPORATED A DIFFERENT DESIGN APPROACH TO ACCOMPLISH THE SAME RESULT. THE CONTRACTING OFFICER PROPOSED TO CANCEL THE SOLICITATION IN ORDER TO REVISE THE LIST OF SALIENT CHARACTERISTICS APPLICABLE TO THE LOW BIDDER'S BRAND NAME FILM. WE DID NOT FEEL THAT ANY USEFUL PURPOSE WOULD BE SERVED BY RESOLICITING BIDS MERELY BECAUSE THE LOW BIDDER'S PRODUCT HAD BEEN INCORRECTLY DESCRIBED IN THE SOLICITATION, AND WE RECOMMENDED THAT THE INAPPLICABLE DESIGN FEATURE BE WAIVED SO THAT AWARD COULD BE MADE TO THE LOW BIDDER UNDER THE ORIGINAL SOLICITATION.

SIMILARLY, IN OTHER CASES CITED BY KLEEN-RITE, WE HAVE DISAGREED WITH ADMINISTRATIVE DETERMINATIONS TO RESOLICIT BIDS BECAUSE OF FAULTY SOLICITATION PROVISIONS ONCE BIDS WERE EXPOSED. WE DID NOT FIND IN 39 COMP. GEN. 396 (1960) THAT A CONTEMPLATED CHANGE IN A SOLICITATION AWARD PROVISION CONSTITUTED A COMPELLING REASON TO REJECT ALL BIDS AND CANCEL THE IFB WHERE THE SOLICITATION AWARD PROVISION ALREADY PERMITTED THE TYPE OF AWARD (AN AGGREGATE AWARD) WHICH THE AGENCY INTENDED TO MAKE. ALSO, IN 40 COMP. GEN. 671 (1961) WE WERE NOT CONVINCED THAT CANCELLATION OF A SOLICITATION WAS JUSTIFIED BECAUSE OF A TYPOGRAPHICAL ERROR IN THE SPECIFICATIONS WHEN THE FACTS SHOWED THAT NONE OF THE BIDDERS HAD BEEN MISLED BY THE ERROR.

HERE THE NAVY PROPOSES TO CANCEL THE SOLICITATION BECAUSE IT BELIEVES A MAJORITY OF THE BIDDERS WERE CONFUSED BY THE SOLICITATION BIDDING INSTRUCTIONS. WE AGREE WITH THE PROPOSED ADMINISTRATIVE DETERMINATION IN THIS INSTANCE.

THE LOW BIDDER, FOR EXAMPLE, HAS STATED THAT IT INTENDED TO PERFORM ITEM 2 AT NO ADDITIONAL CHARGE TO THE GOVERNMENT, BUT THE BIDDER DID NOT INCLUDE A SPECIFIC NOTATION TO THIS EFFECT IN ITS BID. IT MERELY INSERTED A BID PRICE IN THE BLANK SPACE FOR THE "GRAND TOTAL ITEMS 1A, 1B (1,2&3)," WHICH WAS SITUATED IN THE BID SCHEDULE ABOVE ITEM 2. THE AWARD PROVISIONS OF THE SOLICITATION (AS AMENDED) PROVIDED, HOWEVER, THAT THE "*** LOWEST BIDDER, FOR PURPOSE OF AWARD, WILL BE THAT CONFORMING BIDDER WHO HAS OFFERED THE LOWEST AGGREGATE AMOUNT FOR ALL WORK INVOLVED IN BID ITEM 1(A) *** BID ITEM 1(B) *** PLUS THE BID PRICE FOR ALL WORK INVOLVED IN BID ITEM 2 ***." IN ADDITION, THE WORDING OF ITEM 2 ITSELF ("ADDITIONAL COST ***") CALLED FOR A SPECIFIC BID ON ITEM 2. IN VIEW OF THESE SOLICITATION PROVISIONS WE ARE UNABLE TO CONCLUDE THE LOW BIDDER OFFERED IN ITS BID TO PERFORM ITEM 2, ALONG WITH THE OTHER ITEMS, IN THE ABSENCE OF A SPECIFIC BID ON ITEM 2. THEREFORE, THE BID MAY NOT BE ACCEPTED, EVEN THOUGH THE LOW BIDDER INSISTS THAT IT INTENDED TO PERFORM ITEM 2. B-169084, MAY 2, 1970.

ON THE OTHER HAND, WE BELIEVE THAT THE BIDDING INSTRUCTIONS WERE CONFUSING. THE ABSENCE IN THE BID SCHEDULE OF A SPACE FOR INSERTING A SEPARATE BID PRICE FOR ITEM 2, COUPLED WITH THE NOTATION "GRAND TOTALS ITEM 1A, 1B (1,2&3)" IMMEDIATELY PRECEDING ITEM 2, MAY HAVE CONFUSED SOME OF THE BIDDERS. THUS, THE FAILURE OF THREE OF THE BIDDERS (INCLUDING THE TWO LOWEST BIDDERS) TO INSERT A SEPARATE BID PRICE FOR ITEM 2 AND THE FACT THAT ANOTHER BIDDER, SURF CLEANERS, INC., BID MORE FOR ITEM 2 THAN IT BID FOR ITEM 1 MAY HAVE RESULTED FROM AMBIGUOUS BIDDING INSTRUCTIONS. IN OUR OPINION THERE IS A COMPELLING REASON TO CANCEL THIS SOLICITATION.

ACCORDINGLY, WE FIND NO BASIS TO OBJECT TO THE NAVY'S DETERMINATION TO CANCEL THE SOLICITATION AND RESOLICIT BIDS UNDER A SOLICITATION WHICH PROVIDES CLEAR AND UNAMBIGUOUS BIDDING INFORMATION TO THE BIDDERS. UNDER THE CIRCUMSTANCES, WE NEED NOT CONSIDER THE ASSERTION BY THE SIXTH LOW BIDDER, NATIONWIDE BUILDING MAINTENANCE, INC., THAT IT WAS MISLED BY A POORLY REPRODUCED COPY OF THE IFB AMENDMENT WHICH CAUSED IT TO BID ON A GOVERNMENT ESTIMATE OF 1800 OCCURRENCES FOR ITEM 1-(B)(2) RATHER THAN 7800 OCCURRENCES.