B-181545, OCT 31, 1974, 54 COMP GEN 320

B-181545: Oct 31, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAS INCLUDED IN EVALUATION OF BASE BIDS. FEDERAL PROCUREMENT REGULATIONS HAVE NO SIMILAR PROVISION AND. CONTRACTS - PROTESTS - TIMELINESS - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING CONTENTION THAT INVITATION FOR BIDS FAILED TO PROVIDE SPECIAL INSTRUCTIONS CONCERNING THE ORDER OF SELECTION PRIORITY OF ADDITIVE ITEMS IS UNTIMELY RAISED AND WILL NOT BE CONSIDERED BY GENERAL ACCOUNTING OFFICE AS 4 C.F.R. 20.2(A) CAUTIONS BIDDERS THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING. IMPOSE NO DUTY ON CONTRACTING OFFICER TO RECORD AMOUNT OF FUNDS AVAILABLE FOR BASE BID AND ADDITIVE BID ITEMS WHEN AMOUNT OF FUNDING IS IN DOUBT.

B-181545, OCT 31, 1974, 54 COMP GEN 320

BIDS - EVALUATION - AGGREGATE V. SEPARABLE ITEMS, PRICES, ETC. - BASE BID LOW $200,000 AMOUNT FOR FORCE ACCOUNT WORK, A LINE ITEM IN BASE BID SCHEDULE AVAILABLE FOR ADDITIONAL WORK OVER AND ABOVE THAT CALLED FOR IN INVITATION FOR BIDS (CONTINGENT SUM), WAS INCLUDED IN EVALUATION OF BASE BIDS, AND NOT USED TO PROVIDE FUNDS FOR AWARD OF ADDITIVE ITEMS, AS CONTENDED BY PROTESTER. BIDS - AGGREGATE V. SEPARABLE ITEMS, PRICES, ETC. - ADDITIVES - DISCLOSURE REQUIREMENTS WHILE ARMED SERVICES PROCUREMENT REGULATION 2-201(B)(XLI) (1974 ED.) REQUIRES DISCLOSURE OF ORDER OF SELECTION PRIORITY OF ADDITIVE ITEMS, FEDERAL PROCUREMENT REGULATIONS HAVE NO SIMILAR PROVISION AND, THEREFORE, INVITATION FOR BIDS ISSUED BY CIVILIAN AGENCY NEED NOT REVEAL PRIORITY OF ADDITIVE ITEMS, AND FAILURE TO INDICATE PRIORITY, WITH RESULTANT POST BID OPENING DISCRETIONARY SELECTION OF ADDITIVE ITEMS, DOES NOT RENDER AWARD OF ADDITIVE ITEMS INVALID. CONTRACTS - PROTESTS - TIMELINESS - SOLICITATION IMPROPRIETIES - APPARENT PRIOR TO BID OPENING CONTENTION THAT INVITATION FOR BIDS FAILED TO PROVIDE SPECIAL INSTRUCTIONS CONCERNING THE ORDER OF SELECTION PRIORITY OF ADDITIVE ITEMS IS UNTIMELY RAISED AND WILL NOT BE CONSIDERED BY GENERAL ACCOUNTING OFFICE AS 4 C.F.R. 20.2(A) CAUTIONS BIDDERS THAT PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN SOLICITATION APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING. APPROPRIATIONS - AVAILABILITY - CONTRACTS - BASE BID AND ADDITIVE ITEMS - RECORDING FEDERAL PROCUREMENT REGULATIONS, UNLIKE ARMED SERVICES PROCUREMENT REGULATION, IMPOSE NO DUTY ON CONTRACTING OFFICER TO RECORD AMOUNT OF FUNDS AVAILABLE FOR BASE BID AND ADDITIVE BID ITEMS WHEN AMOUNT OF FUNDING IS IN DOUBT. THEREFORE, WHEN ACTUAL FUNDING AVAILABLE INCREASES PRIOR TO AWARD FROM CANCELLATION OF ANOTHER PROCUREMENT, FUNDS PROPERLY MADE AVAILABLE THEREFROM TO CIVILIAN AGENCY FOR GENERAL CONSTRUCTION USE MAY BE REALLOCATED TO AFFECT DETERMINATION OF AMOUNT OF ADDITIVE ITEMS TO BE INCLUDED FOR AWARD. BIDS - EVALUATION - ESTIMATES - GOVERNMENT COST ESTIMATE - EXCESSIVE PREPARATION OF GOVERNMENT COST ESTIMATE (GCE) FOUND TO BE IN ACCORDANCE WITH FEDERAL PROCUREMENT REGULATIONS 1-18.108 (1971 2D ED., AMEND. 95) WHICH PROVIDES THAT GOVERNMENT ESTIMATE NEED ONLY BE AS DETAILED AS PROSPECTIVE CONTRACTOR'S BID; AND WHERE BIDS GREATLY EXCEED GCE, PROCURING ACTIVITY IS PLACED ON NOTICE OF POSSIBLE ERROR IN ESTIMATE, AND REVIEW AND REVISION, IF NECESSARY, IS APPROPRIATE. BIDS INVITATION FOR BIDS - REQUIREMENTS - PRICE RANGE ESTIMATE - CONSTRUCTION CONTRACTS ESTIMATED PRICE RANGE, REQUIRED BY FEDERAL PROCUREMENT REGULATIONS 1 18.109 (1971 2D ED., AMEND. 95) TO BE PLACED IN INVITATION FOR BIDS FOR CONSTRUCTION PROJECTS EXPECTED TO EXCEED $25,000 DOES NOT ESTABLISH ABSOLUTE CEILING FOR AWARD, AND SINCE IFB DOES NOT PREVENT MAKING OF AWARD IF ESTIMATED PRICE RANGE CEILING IS EXCEEDED, AND ALL BIDDERS EXCEEDED CEILING, PROPOSED AWARD IN AMOUNT IN EXCESS OF CEILING IS NOT QUESTIONED. EQUAL EMPLOYMENT OPPORTUNITY - INFORMATION - OBTAINING - CONTRACT AWARD ALTHOUGH PROTESTER ALLEGES THAT IT WAS REQUESTED TO FURNISH EQUAL EMPLOYMENT OPPORTUNITY (EEO) INFORMATION INDICATIVE OF AWARD 2 WEEKS BEFORE PROPOSED AWARDEE IN FURTHERANCE OF ALLEGATION OF IMPROPER MANIPULATION OF FUNDING AVAILABLE FOR ADDITIVE ITEMS AND RECORD CONTAINS CONFLICTING INFORMATION AS TO WHEN EEO INFORMATION WAS OBTAINED FROM BIDDERS, ONCE ADDITIONAL FUNDING BECAME AVAILABLE, INCREASING AMOUNT OF ADDITIVE ITEMS TO BE INCLUDED FOR AWARD AND DISPLACING PROTESTER AS LOW BIDDER, IT WAS APPROPRIATE TO SECURE EEO INFORMATION FROM RESULTING LOW BIDDER.

IN THE MATTER OF H.M. BYARS CONSTRUCTION COMPANY, OCTOBER 31, 1974:

ON APRIL 9, 1974, THE NATIONAL PARK SERVICE (NPS) OF THE UNITED STATES DEPARTMENT OF THE INTERIOR ISSUED AN INVITATION FOR BIDS (IFB) FOR PROJECT NO. 8800-0851B. THE CONTRACT FOR WHICH BIDS WERE INVITED CALLS FOR THE CONSTRUCTION OF THE YOSEMITE TRUNK SEWER, YOSEMITE NATIONAL PARK. THE BID SCHEDULE FOR THIS POJECT INCLUDED A BASE BID SCHEDULE CONSISTING OF 37 SEPARATE ITEMS, AND THREE ADDITIVE SCHEDULES. ADDITIVE SCHEDULE IA FOR "ELECTRICAL DUCT BANK" AND "PULL BOXES" INCLUDED 10 SEPARATE ITEMS, NUMBERED 1A THROUGH 10A; ADDITIVE SCHEDULE IIA FOR "REPLACEMENT AND CONNECTION OF SEWER LINES IN EL PORTAL AREA FOR EL PORTAL MARKET AND HOTEL" INCLUDED FIVE SEPARATE ITEMS, NUMBERED 11A THROUGH 15A; AND ADDITIVE SCHEDULE IIIA FOR DUCTILE IRON PIPE INCLUDED ONLY ONE ITEM, NUMBERED 16A. FOR EACH INDIVIDUAL SCHEDULE, PROVISION WAS MADE FOR THE INSERTION OF THE TOTAL BID FOR THAT SCHEDULE. THE BID SCHEDULE ALSO CONTAINED A BID SUMMARY PAGE IN WHICH TOTALS FOR THE BASE BID PLUS VARIOUS COMBINATIONS OF ADDITIVE SCHEDULES AND INDIVIDUAL ADDITIVE ITEMS WERE TO BE ENTERED.

ON MAY 23, BIDS WERE OPENED. FOUR RESPONSIVE BIDS WERE RECEIVED. THE LOW BASE BID WAS SUBMITTED BY H.M. BYARS CONSTRUCTION COMPANY (BYARS). THE LOW AGGREGATE BID INCLUDING THE BASE BID AND ALL ADDITIVE SCHEDULES WAS SUBMITTED BY ERNEST E. PESTANA, INC. (PESTANA). THE BASE BIDS SUBMITTED BY BYARS AND PESTANA WERE $3,425,290 AND $4,044,728, RESPECTIVELY, OR 1.1 PERCENT AND 19.4 PERCENT ABOVE THE GOVERNMENT ESTIMATE OF $3,387,450. HOWEVER, FOR THE AGGREGATE BIDS FOR ALL SCHEDULES, BYARS' BID OF $5,505,975 AND PESTANA'S OF $5,333,293 WERE 49 PERCENT AND 44.3 PERCENT, RESPECTIVELY, ABOVE THE GOVERNMENT ESTIMATE OF $3,694,890. DURING THE COURSE OF THIS PROTEST, NPS ADVISED OUR OFFICE THAT THE GOVERNMENT ESTIMATE FOR ADDITIVE SCHEDULE IA WAS IN ERROR IN THAT THE ESTIMATED PRICES FOR FIVE OF THE SCHEDULE'S 10 ITEMS CALLING FOR CONSTRUCTION OF "ELECTRICAL DUCT BANK," WERE $2 PER LINEAL FOOT WHEREAS THE FIGURE SHOULD HAVE BEEN $22 PER LINEAL FOOT. NPS THEN REVISED THE GOVERNMENT ESTIMATE TO REFLECT THE $22 PER LINEAL FOOT FIGURE, RESULTING IN A NEW ESTIMATE OF $4,985,690. IN LIGHT OF THIS REVISION, THE AGGREGATE BIDS ARE 10.4 PERCENT (BYARS) AND 7 PERCENT (PESTANA) ABOVE THE ESTIMATE. NPS NOW CONSIDERS BOTH BIDS TO BE REASONABLE AS CONCERNS PRICE.

CONCURRENT WITH THE INSTANT PROCUREMENT, ANOTHER PROJECT (NO. 8800 0851A), WAS ADVERTISED FOR THE CONSTRUCTION OF A POLLUTION CONTROL FACILITY AT EL PORTAL, THE DOWNSTREAM TERMINUS OF THE TRUNK SEWER PROJECT. BOTH PROJECTS WERE FUNDED AS A SINGLE OVERALL PROJECT FOR THE TRANSPORTING AND TREATMENT OF WASTEWATER FROM YOSEMITE VALLEY. THE OVERALL PROJECT WAS SPLIT INTO TWO PROCUREMENTS BECAUSE OF THE DIFFERENT TYPES OF WORK INVOLVED.

BIDS FOR THE TRUNK SEWER PROJECT WERE HIGHER THAN NPS HAD ANTICIPATED. THEREFORE, A DECISION WAS MADE TO DELAY PROCEEDINGS LEADING TO THE AWARD OF THAT CONTRACT UNTIL BIDS WERE SCHEDULED TO BE OPENED ON THE POLLUTION CONTROL FACILITY ON JUNE 6 IN THE HOPE THAT MORE FAVORABLE BIDS MIGHT BE RECEIVED FOR THAT PORTION OF THE OVERALL PROJECT. HOWEVER, BIDS RECEIVED FOR THE POLLUTION CONTROL FACILITY PROJECT WERE ALSO HIGH AND THE QUESTION OF ADEQUATE FUNDING FOR BOTH PORTIONS OF THE OVERALL PROJECT BECAME A MATTER OF SERIOUS CONCERN TO NPS.

UNDER THE CIRCUMSTANCES, IT BECAME APPARENT TO NPS THAT THE DECISION MAKING PROCESS WITH RESPECT TO THE PROBLEM OF ARRANGING FOR ADEQUATE FUNDS WOULD BE TIME-CONSUMING. THEREFORE, IN ORDER TO AVOID ANY FURTHER DELAY IN THE AWARD OF THE TRUNK SEWER CONTRACT, NPS STATES THAT IT REQUESTED THAT BOTH BYARS AND PESTANA SUBMIT THE NECESSARY DOCUMENTATION REQUIRED FOR EQUAL EMPLOYMENT OPPORTUNITY (EEO) CLEARANCE.

DURING THE WEEK OF JUNE 9, MATTERS RELATING TO THE ACCEPTABILITY OF THE BIDS FOR THE TRUNK SEWER PROJECT, THE PORTIONS OF THE WORK TO BE PERFORMED, AND ARRANGEMENTS FOR FUNDING WERE CONSIDERED AND A DECISION WAS MADE THAT AWARD SHOULD BE MADE OF ALL ITEMS OF ALL SCHEDULES EXCEPT ITEMS 9A AND 10A OF ADDITIVE SCHEDULE IA. PESTANA WOULD RECEIVE THE AWARD ON THIS BASIS. AS TO THE ADDITIVE ITEMS TO BE AWARDED, NPS ADVISED THAT:

*** IT WAS OF CONCERN THAT THE YOSEMITE VALLEY HAS BEEN SERVED FOR A GREAT MANY YEARS BY AN AERIAL ELECTRIC POWER LINE WHICH HAS NOW BECOME ANTIQUATED AND OF INSUFFICIENT CAPACITY. THE OLD LINE WOULD HAVE REQUIRED MAJOR MAINTENANCE AND UPGRADING AND EVEN THEN WOULD HAVE BEEN UNRELIABLE BECAUSE OF SUSCEPTIBILITY TO LIGHTNING STRIKES AND WIND FALLS. HENCE THE NEED TO INCORPORATE INTO THE WORK OF THIS PROJECT PROVISIONS FOR UNDERGROUND POWER SERVICE. ***

SCHEDULE IA HAD BEEN ADDED TO THE BID SCHEDULE TO PROVIDE A SYSTEM OF UNDERGROUND DUCTS AND PULLBOXES TO REPLACE AERIAL ELECTRIC POWER LINES WHICH WOULD BE PLACED IN THE SAME TRENCH WITH THE TRUNK SEWER LINE FOR USE BY THE UTILITY COMPANY WHICH WOULD FURNISH, INSTALL, AND ENERGIZE THE CONDUCTORS UNDER A SEPARATE PROCUREMENT. THE TOTAL LENGTH OF DUCT WAS DIVIDED INTO FIVE INCREMENTS WITH AS MANY INCREMENTS TO BE AWARDED AS AVAILABLE FUNDING WOULD PERMIT. EACH INCREMENT CONSISTS OF A NUMBER OF LINEAL FEET OF DUCT (ONE ADDITIVE ITEM) AND A NUMBER OF PULLBOXES REQUIRED TO SERVE THE DUCT (AN ACCOMPANYING ADDITIVE ITEM).

NPS DECIDED THAT FOUR OF THE FIVE INCREMENTS (REPRESENTED BY ADDITIVE ITEMS 1A THROUGH 8A) WOULD BE INCLUDED IN THE AWARD. THE FIFTH INCREMENT (ADDITIVE ITEMS 9A AND 10A) WAS OMITTED FROM THE AWARD BECAUSE IT HAD BEEN LEARNED THAT, FOR THIS REACH OF LINE WHICH IS THE REACH ADJACENT TO THE EL PORTAL TERMINUS, THE AERIAL ELECTRIC POWER LINES WOULD REMAIN IN SERVICE WHETHER OR NOT THE UNDERGROUND SYSTEM BEING PROCURED WAS ALSO AVAILABLE. ACCORDING TO NPS, THE DUCT FOR THIS INCREMENT THEN WOULD HAVE BEEN CONVENIENT RATHER THAN ESSENTIAL FOR THE BALANCE OF THE LINE. THEREFORE, THE DECISION WAS MADE THAT THAT INCREMENT WOULD NOT BE AWARDED. ADDITIVE SCHEDULE IIA (ITEMS 11A THROUGH 15A) WAS CONSIDERED NECESSARY IN ORDER TO CONNECT CERTAIN FACILITIES IN THE COMMUNITY OF EL PORTAL TO THE NEW TRUNK SEWER, AND ADDITIVE SCHEDULE IIIA (ITEM 16A) WAS NECESSARY TO PROVIDE A SMALL STOCKPILE OF ADDITIONAL PIPE FOR EMERGENCY USE IN THE EVENT OF A SLIDE OR WASHOUT TO RETURN THE SEWER TO SERVICE AS SOON AS POSSIBLE.

ON JUNE 14, BOTH BYARS AND PESTANA WERE INFORMALLY ADVISED OF THE DECISION REACHED BY NPS TO MAKE THE AWARD UNDER THE IFB TO PESTANA FOR ALL SCHEDULED ITEMS EXCEPT ADDITIVE ITEMS 9A AND 10A. BOTH BIDDERS WERE CAUTIONED, HOWEVER, THAT THE BASIS FOR AWARD WOULD NOT BE CERTAIN UNTIL CLEARANCE OF FUNDS WAS RECEIVED.

A THIRD PROJECT (NO. 8800-0853), FUNDED FROM THE SAME APPROPRIATION AS THE ABOVE TWO PROJECTS, FOR WATER CONTROL FACILITIES AT WAWONA DEVELOPMENT AREA, YOSEMITE (WAWONA), WAS THE SUBJECT OF A PROCUREMENT DURING THE SAME TIME PERIOD. THIS PROJECT, HOWEVER, WAS POSTPONED INDEFINITELY ON JUNE 20. THE POSTPONEMENT OCCURRED PRIMARILY BECAUSE THE FUNDS PREVIOUSLY COMMITTED FOR THE PROJECT WERE ONLY ONE-HALF OF THE GOVERNMENT ESTIMATE AND, IN VIEW OF SPIRALING COSTS ON OTHER PROJECTS, ALL EXCESS FUNDS HAD BEEN USED. ALSO, SOME ASPECTS OF THE DESIGN WERE NOT IN CONFORMANCE WITH THE DEVELOPMENT CONCEPT PLAN FOR THE WAWONA DEVELOPMENT. SUBSEQUENTLY, NPS WAS REQUESTED BY THE REGIONAL DIRECTOR TO CANCEL THE IFB ON JUNE 28. ONCE THE CANCELLATION DECISION WAS MADE, THE FUNDS PROGRAMMED FOR WAWONA WERE AVAILABLE FOR TRANSFER UNDER EXISTING AUTHORITY TO ELIMINATE THE FUNDING DEFICIENCEIS FOR THE TRUNK SEWER AND POLLUTION CONTROL FACILITY PROJECTS.

WHEN FULLY APPRISED OF NPS'S INTENTIONS. BYARS PROTESTED TO OUR OFFICE ON JUNE 19, 1974.

IT SHOULD BE KEPT IN MIND THAT BYARS SUBMITTED NOT ONLY THE LOW BASE BID BUT THE LOW BID ON ANY COMBINATION OF ADDITIVE ITEMS EXCLUDING ADDITIVE ITEMS 5A AND 6A (1 INCREMENT) AND 9A AND 10A (1 INCREMENT). AS PROPOSED FOR AWARD, THE NPS SELECTION OF ALL ADDITIVES BUT ONE INCREMENT DISPLACED BYARS AS THE LOW BIDDER.

BYARS, THROUGH COUNSEL, HAS QUESTIONED THE PROPRIETY OF THE PROPOSED AWARD TO PESTANA AND HAS DETAILED A SET OF CIRCUMSTANCES, WHICH, IN ITS OPINION, GIVES THE APPEARANCE OF FAVORITISM AND QUESTIONABLE PROCUREMENT PRACTICES SUCH AS TO TAINT ANY AWARD TO PESTANA. THE CIRCUMSTANCES WHICH LED BYARS TO THIS CONCLUSION ARE AS FOLLOWS:

(1) BYARS' BID WAS THE LOWEST AND WITHIN THE RANGE OF THE GOVERNMENT COST ESTIMATE FOR THE BASE BID ITEMS; HOWEVER, AWARD WAS WITHHELD BECAUSE NPS CLAIMED THE BIDS WERE HIGHER THAN ANTICIPATED;

(2) WHEN BIDS WERE OPENED ON THE TRUNK SEWER PROJECT ON JUNE 6, IT WAS APPARENT THAT ADDITIONAL FUNDS FOR ADDITIVE ITEMS WOULD NOT BE AVAILABLE;

(3) ON JUNE 7, CONTRACTING OFFICIALS REQUESTED THAT BYARS SUBMIT EEO DATA WHICH WAS A PREREQUISITE FOR AWARD SINCE, ALLEGEDLY, THE CONTRACT WOULD BE AWARDED TO IT;

(4) ON JUNE 28, 8 DAYS AFTER BIDS WERE SUPPOSED TO BE OPENED, IT WAS REQUESTED THAT THE WAWONA PROJECT BE CANCELED TO PROVIDE ADDITIONAL FUNDS FOR THE OTHER TWO PROJECTS UNDER CONSIDERATION, AND FINALLY;

(5) THERE IS NO PROVEN NEED FOR THE ADDITIVE ITEMS, BUT NPS DETERMINED EXACTLY AT WHAT JUNCTURE, WHEN CERTAIN ADDITIVES WERE INCLUDED, PESTANA WOULD BECOME THE LOW BIDDER SHOWING NPS'S IMPROPER CONCERN OVER WHO WOULD BE THE RECIPIENT OF THE AWARD RATHER THAN THE EXTENT OF THE AWARD.

TO COMPLEMENT THE ABOVE, BYARS' PROTEST RAISES THE FOLLOWING CONTENTIONS WHICH, IN ITS OPINION, REQUIRE THAT AWARD BE MADE TO IT AS THE LOW BASE BIDDER WITH NO AWARD ON ANY OF THE ADDITIVE ITEMS.

I. THE FORCE ACCOUNT WORK ITEM (BASE BID ITEM 37), ALTHOUGH IDENTIFIED AS AN AMOUNT AVAILABLE FOR ADDITIONAL WORK OVER AND ABOVE THAT CALLED FOR IN THE IFB (CONTINGENT SUM), SHOULD BE CONSIDERED FOR EVALUATION PURPOSES IN COMPUTING THE TOTAL COST OF THE WORK RATHER THAN DELETED FROM THE BASE BID SCHEDULE TO CREATE FUNDS FOR THE AWARD OF ADDITIVE ITEMS;

II. EVALUATION OF THE BIDS SUBMITTED WAS IMPROPER, AS THE PROPOSED AWARD WOULD RESULT FROM A POST BID OPENING RANDOM SELECTION AND EVALUATION OF ADDITIVE BID ITEMS IN CONJUNCTION WITH THE ABSENCE OF BID EVALUATION CRITERIA SET FORTH IN THE IFB;

III. FUNDS WERE MANIPULATED AFTER BID OPENING TO ALLOW AWARD ON THE BASE ITEMS PLUS JUST ENOUGH SELECTED ADDITIVE ITEMS TO DISPLACE BYARS AS LOW BIDDER.

IV. THE REVISED GOVERNMENT COST ESTIMATE WAS IN ERROR WITH REGARD TO ADDITIVE SCHEDULE IA; THUS, AWARD SHOULD BE PRECLUDED ON ANY OF THE ADDITIVE ITEMS. MOREOVER, THE ESTIMATE WAS NOT PREPARED INDEPENDENTLY BY NPS.

V. AWARD TO PESTANA CANNOT BE MADE UNDER THE "DESCRIPTION OF WORK" CLAUSE CONTAINED IN THE IFB PURSUANT TO SECTIONS 1-18.109 (1971 2D ED., AMEND. 95) AND 1-18.203-1(B)(3) (1968 2D ED., AMEND. 48) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). THAT CLAUSE ESTABLISHES AN ESTIMATED PRICE RANGE FOR THE CONTRACT WORK WHICH AWARD AS CONTEMPLATED TO PESTANA WOULD EXCEED.

VI. EQUAL EMPLOYMENT OPPORTUNITY (EEO) INFORMATION WAS NOT OBTAINED CONCURRENTLY FROM BOTH BIDDERS BEING CONSIDERED FOR AWARD FURTHER DEMONSTRATING A PREMEDITATED ATTEMPT TO EXCLUDE BYARS FROM OBTAINING THE AWARD; AND

VII. INCLUSION OF THE ADDITIVE ITEMS FOR AWARD WAS UNNECESSARY, SINCE SUCH ITEMS WERE UNESSENTIAL TO THE NEEDS OF THE GOVERNMENT.

FOR THE REASONS SET FORTH BELOW, WE CANNOT AGREE WITH THE POSITIONS ASSERTED BY BYARS AND THE PROTEST MUST BE DENIED.

I. FORCE ACCOUNT WORK

BYARS ALLEGES THAT THE $200,000 AMOUNT INSERTED FOR BASE BID ITEM 37 MUST BE INCLUDED IN THE COST EVALUATION OF ANY BID SUBMITTED AND NOT TO BE USED TO CREATE FUNDS FOR THE AWARD OF ADDITIVES. OUR REVIEW OF THE RECORD DISCLOSES THAT, IN CONSONANCE WITH BYARS' POSITION, IN THE COST EVALUATION OF BIDS SUBMITTED, NPS DID CONSIDER THE $200,000 AMOUNT IN DETERMINING THE LOW BIDDER, AND DID NOT USE THE $200,000 FOR AWARD OF ADDITIVE ITEMS.

II. RANDOM SELECTION OF ADDITIVE BID ITEMS

BYARS CONTENDS THAT THE MANIPULATION AND RANDON SELECTION OF ADDITIVE BID ITEMS GIVES TOTAL DISCRETION TO THE PROCURING ACTIVITY AS TO WHO WILL BE THE LOW BIDDER. BYARS STATES THAT THE ALLOWANCE OF THIS UNBRIDLED DISCRETION, AFTER BID OPENING, IS TOTALLY REPUGNANT TO THE COMPETITIVE BIDDING SYSTEM WHICH IS BASED ON AN UNYIELDING PROHIBITION OF FAVORITISM.

BYARS INVITES OUR ATTENTION TO SEC. 2-201(B)(XLI) (1974 ED.) OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) WHICH COVERS ADDITIVE ITEMS. THE REGULATION PROVIDES THAT, WHEN IT APPEARS THAT FUNDS AVAILABLE FOR A PROJECT MAY BE INSUFFICIENT FOR ALL THE DESIRED FEATURES OF CONSTRUCTION, THE CONTRACTING OFFICER MAY PROVIDE IN THE INVITATION FOR A FIRST OR BASE BID ITEM COVERING THE WORK GENERALLY AS SPECIFIED AND FOR ONE OR MORE ADDITIVE OR DEDUCTIVE ITEMS WHICH PROGRESSIVELY ADD OR OMIT SPECIFIED FEATURES OF THE WORK IN A STATED ORDER OF PRIORITY. COUNSEL RECOGNIZES THAT THE PROCURING ACTIVITY IN THIS CASE IS NOT CONTROLLED BY ASPR, BUT RATHER BY THE FPR, WHICH DOES NOT CONTAIN A COUNTERPART TO ASPR SEC. 2- 201(B)(XLI) (1974 ED.). THEREFORE, BYARS, ARGUING BY ANALOGY, ASSERTS THAT THE EQUITABLE PRINCIPLES UNDERLYING THE ASPR PROVISION SHOULD BE EQUALLY APPLICABLE TO ADVERTISED PROCUREMENTS OF CIVILIAN AGENCIES, AND THAT BIDDERS SHOULD BE INFORMED OF THE BASIS OF EVALUATION PRIOR TO, OR, AT THE LATEST, THE TIME OF BID OPENING WITHOUT BEING SUBJECTED TO POST BID OPENING MANIPULATIONS IN THE RELATIVE STANDING OF BIDDERS. THE IFB, IN DISCUSSING EVALUATION OF BIDS, STATES:

*** AWARD WILL BE MADE TO ONE BIDDER IN ACCORDANCE WITH CLAUSE 10 OF THE INSTRUCTIONS TO BIDDERS.

CLAUSE 10 STATES, IN PERTINENT PART:

(A) AWARD OF CONTRACT WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, IS MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.

(C) THE GOVERNMENT MAY ACCEPT ANY ITEM OR COMBINATION OF ITEMS OF A BID,

BYARS DISTINGUISHES PREVIOUS GAO DECISIONS (45 COMP. GEN. 651 (1966); B- 157227, AUGUST 18, 1965; B-148333, APRIL 9, 1962; AND B-146343, NOVEMBER 1, 1961) WHERE GAO PERMITTED THE POST BID OPENING SELECTION OF ADDITIVE ITEMS, BECAUSE "UNLIKE THE PRESENT CASE, THE INVITATIONS INCLUDED SPECIAL PROVISIOUS WHICH DEFINED HOW THE BIDS WERE TO BE EVALUATED." IN THOSE CASES, OUR OFFICE UPHELD THE SELECTION OF THE LOW BIDDER ON THE BASIS OF ADDITIVE ALTERNATIVES UNDER CIRCUMSTANCES SIMILAR TO THOSE INVOLVED HERE. IN B-148333, APRIL 9, 1962, THE PROCEDURE WAS PROTESTED, AS HERE, ON THE BASIS THAT IT PERMITTED SELECTION OF THE LOW BIDDER TO BE CONTROLLED BY MANIPULATING THE SELECTION OF ALTERNATES AFTER THE OPENING OF BIDS. OUR OFFICE OBSERVED THAT THE INVITATION RESERVED AN OPTION TO THE GOVERNMENT TO MAKE THE AWARD FOR SUCH ITEMS AS IT MIGHT CHOOSE AFTER THE OPENING OF BIDS, AS FOLLOWS:

*** SUCH AN ELECTION BY THE CONTRACTING AGENCY IS NOT IMPROPER. REQUIREMENTS THAT CONTRACTS FOR PUBLIC WORK BE LET TO THE LOWEST BIDDER ARE NOT VIOLATED WHEN SPECIFICATIONS ARE DRAWN FOR DIFFERENT WORK, BIDS ARE SOUGHT ON DIFFERENT BASES, AND A CHOICE IS NOT MADE BY THE CONTRACTING OFFICIALS UNTIL AFTER ALL THE BIDS ARE OPENED. 43 AM. JUR., PUBLIC WORKS AND CONTRACTS, SEC. 37; 10 MCQUILLIN, MUNICIPAL CORPORATIONS SEC. 29.55(3RD ED.); COHEN, PUBLIC CONSTRUCTION CONTRACTS AND THE LAWS SEC. 2.14.

IN B-146343, NOVEMBER 1, 1961, ANOTHER DECISION WITH CONTENTIONS SIMILAR TO THOSE RAISED BY BYARS, WE SAID:

YOUR ATTORNEY CONTENDS THAT IT IS IMPROPER FOR THE GOVERNMENT TO RESERVE UNTIL AFTER BID OPENING THE RIGHT TO CHOOSE THE PARTICULAR COMBINATION OF ITEMS ON WHICH BIDS WILL BE EVALUATED, CLAIMING THAT THE CONTRACTING OFFICER MIGHT THEREBY, THROUGH A CAREFUL SELECTION OF ITEMS, CHOOSE ANY CONTRACTOR OTHER THAN THE ONE WHO HAD SUBMITTED THE LOWEST AGGREGATE BID FOR ALL ITEMS. YOU ARE UNDOUBTEDLY AWARE THAT IT IS NOT AT ALL UNUSUAL TO SOLICIT BIDS FOR CERTAIN MINIMUM WORK, PLUS OPTIONAL ADDITIONAL WORK. THE PURPOSE OF ADVERTISING ON THIS BASIS ORDINARILY IS TO ENABLE AWARD TO BE MADE IN ACCORDANCE WITH THE FUNDS AVAILABLE AND THE BEST BARGAIN OFFERED BY BIDDERS. THE NET RESULT THEREOF IS TO REQUIRE BIDDERS TO QUOTE PRICES ON VARIOUS COMBINATIONS OF ITEMS, SUBJECT TO THE GOVERNMENT'S RIGHT TO CHOOSE ANY PARTICULAR COMBINATION IT WISHES AS THE BASIS OF AWARD.

WHILE IT MAY BE, AS IN THIS CASE, THAT DIFFERENT COMBINATIONS OF ITEMS WILL RESULT IN DIFFERENT LOW BIDDERS, WE CAN SEE NO BASIS FOR CLAIMING THAT THIS IS DISCRIMINATORY AS BETWEEN BIDDERS. EACH BIDDER IS COMPETING AGAINST EACH OTHER BIDDER ON EACH POSSIBLE COMBINATION OF ITEMS, AND THE COMPARATIVE DESIRABILITY OF DIFFERENT ITEMS MAY WELL DEPEND ON THE PRICES QUOTED THEREFOR. IT IS OBVIOUS THAT AWARD COULD NOT BE MADE ON ANY COMBINATION OF ITEMS TO A BIDDER WHOSE AGGREGATE PRICE FOR THOSE ITEMS WAS NOT LOW, MERELY BECAUSE HE HAPPENED TO HAVE OFFERED AN OFFSETTING LOWER PRICE FOR WORK WHICH IS NOT TO BE PERFORMED. WE BELIEVE ALSO THAT IT IS THE EXCEPTION RATHER THAN THE RULE WHEN DIFFERENT COMBINATIONS OF ITEMS WILL RESULT, AS HERE, IN DIFFERENT LOW BIDDERS.

SEE, TO THE SAME EFFECT, 45 COMP. GEN., SUPRA; AND B-157227, SUPRA.

AS NOTED ABOVE, THE IFB PROVIDED THAT AWARD WOULD BE MADE ON ITEMS IN ANY COMBINATION, ALMOST THE IDENTICAL PROVISION TO THAT CONTAINED IN THE ADVERTISED SOLICITATIONS INVOLVED IN THE ABOVE DECISIONS RELIED ON BY BYARS. THEREFORE, WE HAVE NO REASON TO DISTINGUISH OUR PRIOR DECISIONS AND FIND THEM APPLICABLE HERE. IN VIEW OF THIS, IT IS OUR OPINION THAT NPS CLEARLY RESERVED THE RIGHT TO MAKE THE AWARD FOR SUCH ITEMS AS IT MIGHT CHOOSE AFTER THE OPENING OF BIDS. WHILE WE MIGHT AGREE WITH BYARS THAT AN ORDER OF PRIORITY SHOULD BE UTILIZED (AS ADOPTED BY ASPR), IN VIEW OF OUR PRIOR DECISIONS, THE FAILURE TO ESTABLISH AN ORDER OF PRIORITY HERE DOES NOT RENDER AWARD OF THE ADDITIVE ITEMS IMPROPER OR ILLEGAL.

BYARS ALSO RAISES THE COLLATERAL ISSUE THAT THE IFB WAS DEFECTIVE IN THAT IT FAILED TO PROVIDE SPECIAL INSTRUCTIONS CONCERNING ALTERNATES, OVER AND ABOVE THOSE CITED ABOVE, AS REQUIRED BY FPR SEC. 1-18.203 1(B)(9) (1968 ED., AMEND. 48). HOWEVER, UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, PUBLISHED AT 4 C.F.R. SEC. 20.1, ET SEQ. (1974), PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING TO BE CONSIDERED. SINCE BYARS DID NOT PROTEST HERE PRIOR TO THE TIME SET FOR BID OPENING, ITS PROTEST IN THIS REGARD WILL NOT BE CONSIDERED.

III. MANIPULATION OF FUNDS

BYARS ALLEGES THAT NPS, SUBSEQUENT TO THE OPENING OF BIDS, MANIPULATED THE FUNDING FOR THIS PROJECT TO SELECT ENOUGH ADDITIVE ITEMS TO BE INCLUDED WITH THE BASE ITEMS FOR AWARD AS TO RESULT IN THE DISPLACEMENT OF BYARS AS THE LOW BIDDER. BYARS STATES THAT, AT THE TIME SET FOR BID OPENING, THE FUNDING FOR THIS PROJECT WAS FAR SHORT OF THE PROPOSED $5,109,323 AMOUNT NOW BEING CONSIDERED FOR AWARD. THEREFORE, BYARS ARGUES THAT, IF THE AWARD IS MADE FOR ANY AMOUNT OVER THAT SUM AVAILABLE WHEN BIDS WERE OPENED, THEN MANIPULATION OF FUNDING AND IMPROPER FAVORITISM HAS TAKEN PLACE.

NPS, WHILE NOT DENYING THAT SUFFICIENT FUNDS WERE UNAVAILABLE WHEN BIDS WERE OPENED, CLAIMS THAT UNDER ITS TRANSFER AUTHORITY, SUFFICIENT FUNDS WERE SUBSEQUENTLY AVAILABLE TO MAKE AN AWARD WHICH INCLUDES THE ADDITIVE ITEMS.

UNLIKE ASPR SEC. 2-201(B)(XLI) (1974 ED.), FPR HAS NO PROVISION WHICH REQUIRES THE CONTRACTING OFFICER, PRIOR TO BID OPENING, TO DETERMINE AND RECORD THE AMOUNT OF FUNDS AVAILABLE FOR A PROCUREMENT WHICH INVOLVES ADDITIVE ITEMS. THEREFORE, THE AMOUNT OF FUNDING AVAILABLE FOR THIS PROCUREMENT APPEARS TO BE WITHIN THE DISCRETION OF THE CONTRACTING AGENCY. IN THE INSTANT PROCUREMENT, FUNDS WERE OBTAINED UNDER THE SUPPLEMENTAL APPROPRIATION, MAY 27, 1972, PUBLIC LAW 92-306, 86 STAT. 168, WHICH STATED, IN PERTINENT PART, AS FOLLOWS:

NATIONAL PARK SERVICE

CONSTRUCTION

FOR AN ADDITIONAL AMOUNT FOR "CONSTRUCTION," $34,120,000, TO REMAIN AVAILABLE UNTIL EXPENDED.

NO SPECIFIC PROCUREMENTS WERE IDENTIFIED UNDER THIS APPROPRIATION. THEREFORE, NPS WAS FREE TO ALLOCATE SUCH AMOUNTS IT FELT APPROPRIATE FOR WHICHEVER PROJECTS IT DEEMED MOST ESSENTIAL. FUNDS NOT USED OR REMAINING FROM ANY ONE PROJECT WERE AVAILABLE FOR USE FOR OTHER PROJECTS. ACCORDINGLY, NPS CONTENDS THAT, WHEN IT WAS ADMINISTRATIVELY DETERMINED TO CANCEL THE WAWONA PROJECT, THE $2,245,000 SET ASIDE FOR THAT PROJECT WAS THEN AVAILABLE FOR USE UNDER THE INSTANT PROJECT. AS A RESULT, SUFFICIENT FUNDS WERE THEN AVAILABLE TO MAKE AN AWARD HERE FOR THE BASE BID ITEMS AND ALL ADDITIVE SCHEDULES.

IN THIS CASE, BOTH BYARS AND PESTANA OFFERED 60-DAY BID ACCEPTANCE PERIODS. THIS GAVE NPS 60 DAYS TO DETERMINE EXACTLY HOW MUCH FUNDING WOULD BE AVAILABLE FOR THIS PROJECT IN ORDER TO DETERMINE HOW MANY ADDITIVE ITEMS COULD BE INCLUDED FOR AWARD. THEREFORE, WHEN ADDITIONAL FUNDING BECAME AVAILABLE DURING THE 60-DAY PERIOD, A PORTION WAS VALIDLY REDESIGNATED FOR THIS PROJECT TO ENABLE INCLUSION OF THE ADDITIVE ITEMS NPS FELT WERE NECESSARY.

IN B-147061, NOVEMBER 13, 1961, LIKE THE INSTANT PROCUREMENT, THE AMOUNT OF FUNDS AVAILABLE FOR THE PROCUREMENT WAS INCREASED SIGNIFICANTLY AFTER BID OPENING TO PERMIT AN AWARD ON ALL WORK DESCRIBED AS "ADDITIVE ALTERNATES" WHICH RESULTED IN THE DISPLACEMENT OF THE LOW BASE BIDDER. OUR OFFICE CONCLUDED THAT:

THE PURPOSE OF ADVERTISING ON A "BASIC BID PLUS ADDITIVE ALTERNATE" BASIS IS TO ENABLE AN AWARD TO BE MADE TO THE BIDDER MAKING THE BEST OFFER WITHIN THE FUNDS AVAILABLE FOR THE PROJECT INVOLVED. SINCE THERE WAS A GENUINE NEED FOR THE WORK COVERED BY THE ADDITIVE ALTERNATES AND THE CONTINGENCY FOR THE SELECTION OF ADDITIVE ALTERNATES WAS SPECIFIED IN THE INVITATION, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE BASIS OF EVALUATION EMPLOYED BY THE CONTRACTING AGENCY UPON ADDITIONAL FUNDS BEING MADE AVAILABLE FOR THE WORK.

ON THE RECORD BEFORE US, WE FIND NO BASIS TO QUESTION THE LEGALITY OF THE TRANSFER OF FUNDS AFTER BID OPENING.

IV. GOVERNMENT COST ESTIMATE

BYARS CONTENDS THAT THE REVISED GOVERNMENT COST ESTIMATE (GCE) WAS IN ERROR WITH REGARD TO ELECTRICAL DUCT BANK ITEMS OF ADDITIVE SCHEDULE IA AND WAS NOT INDEPENDENTLY PREPARED BY NPS AS ALLEGEDLY REQUIRED BY FPR SEC. 1-18.108 (1971 2D ED., AMEND. 95), WHICH STATES, IN PART:

AN INDEPENDENT GOVERNMENT ESTIMATE OF CONSTRUCTION COST IN AS MUCH DETAIL AS IN THE CASE OF A PROSPECTIVE CONTRACTOR'S BID SHALL BE PREPARED FOR EACH PROPOSED CONTRACT, ***, ANTICIPATED TO COST *** $10,000 OR MORE. ***

BYARS CONTENDS THAT "*** THE SUPPOSED COST ESTIMATE IS NOTHING MORE THAN A COPY OF THE BIDDING SCHEDULE FROM THE INVITATION FOR BIDS WITH THE GOVERNMENT'S OWN BID FIGURES INSERTED THEREON." THEREFORE, IT IS ARGUED THAT AWARD SHOULD BE PRECLUDED ON ANY OF THE ADDITIVE ITEMS.

WITH REGARD TO THE CONTENTION THAT THE GCE WAS NOT INDEPENDENTLY PREPARED BY NPS IN ACCORDANCE WITH FPR SEC. 1-18.108 (1971 2D ED., AMEND. 95), WE DO NOT AGREE. HERE, THE CONTRACTING OFFICER HAD A GCE PREPARED BY THE GOVERNMENT ENGINEER FOR THIS PROJECT. AS ALLEGED BY BYARS, THE ENGINEER INSERTED ESTIMATED PRICES BESIDE EACH ITEM ON THE BIDDING SCHEDULE. FIND THAT THE PREPARATION OF THIS ESTIMATE COMPLIED WITH THE PROVISIONS OF FPR 1-18.108 (1971 2D ED., AMEND. 95) WHICH ONLY REQUIRE THAT THE ESTIMATE BE PREPARED "*** IN AS MUCH DETAIL AS IN THE CASE OF A PROSPECTIVE CONTRACTOR'S BID***." THIS IS EXACTLY THE MANNER IN WHICH THE GCE WAS PREPARED AND ONLY GOVERNMENT PERSONNEL PARTICIPATED IN THE PREPARATION OF THE ESTIMATE.

ADDITIONALLY, WHILE BYARS CONTENDS THAT THE ORIGINAL GCE MAY NOT HAVE BEEN ERRONEOUS AS STATED BY NPS, WE FIND NO EVIDENCE IN THE RECORD TO CAUSE US TO QUESTION THE AUTHENTICITY OF NPS'S REVISION OF THE GCE. THE ERROR IN THE GCE OCCURRED AS A RESULT IN THE ESTIMATE BEING PREPARED BEFORE THE SPECIFICATIONS WERE FULLY COMPLETED. INITIALLY, IT WAS BELIEVED THAT THE ELECTRICAL DUCT BANK WOULD SIMPLY BE PLACED IN THE SEWER TRENCH. HOWEVER, AS THE DESIGN CONCEPT DEVELOPED FURTHER, A REINFORCED CONCRETE ENVELOPE WAS INCLUDED TO ENCASE THE ELECTRICAL DUCT BANK. THIS INCLUSION WAS NOT REFLECTED IN THE GCE, THUS RESULTING IN THE ERRONEOUS ESTIMATE.

WHEN BIDS WERE OPENED, AND IN VIEW OF THE PATTERN OF BIDS ON THE ELECTRICAL DUCT BANK ITEMS RANGING FROM $14 TO $45, IT BECAME APPARENT TO NPS THAT THE $2 ESTIMATED AMOUNT FOR THESE ITEMS WAS CLEARLY ERRONEOUS. THEREFORE, NPS ADVISES THAT IT REVIEWED ITS ESTIMATE, DISCOVERED THE REASON FOR THE ERROR, AND CORRECTED THE ESTIMATED COST TO $22. THIS ACTION WAS IN ACCORD WITH OUR POSITION TAKEN IN MATTER OF C.J. COAKLEY COMPANY, INC., B-181057, JULY 23, 1974. THERE, WHERE BIDS GREATLY EXCEEDED THE GOVERNMENT ESTIMATE, WE FELT THAT AGENCIES SHOULD BE ON NOTICE OF A POSSIBLE ERROR IN ITS ESTIMATE AND SHOULD CAREFULLY REVIEW THE ESTIMATE FOR POSSIBLE REVISION.

V. DEFECTIVE "DESCRIPTION OF WORK" CLAUSE

BYARS CONTENDS THAT AWARD TO PESTANA CANNOT BE MADE UNDER THE IFB IN LIGHT OF FPR SEC. 1-18.203(B)(3) (1968 2D ED., AMEND. 48). THIS SECTION STATES, IN PERTINENT PART:

(B) IN ADDITION TO COMPLYING WITH THE REQUIREMENTS OF SEC. 1 2.201(A), INVITATIONS FOR BIDS SHALL CONTAIN THE FOLLOWING TO THE EXTENT APPLICABLE:

(3) THE MAGNITUDE OF THE PROPOSED CONSTRUCTION AS REQUIRED BY SEC. 1 18.109;

FPR SEC. 1-18.109 (1971 2D ED., AMEND. 95) PROVIDES, AS FOLLOWS:

SEC. 1-18.109 DISCLOSURE OF SIZE CONSTRUCTION PROJECTS.

WHERE THE ESTIMATED VALUE OF THE WORK IS $25,000 OR MORE, ADVANCE NOTICES OR INVITATIONS FOR BIDS AND REQUESTS FOR PROPOSALS SHALL INCLUDE A STATEMENT OF THE MAGNITUDE IN TERMS OF PHYSICAL CHARACTERISTICS OF THE PROPOSED CONSTRUCTION AND BY REFERENCE TO THE ESTIMATED PRICE RANGE (E.G. $500,000-$1,000,000). IN NO EVENT SHALL SUCH STATEMENT DISCLOSE THE GOVERNMENT ESTIMATE.

THE IFB, ON STANDARD FORM 20, INVITATION FOR BIDS, CONTAINED THE FOLLOWING:

DESCRIPTION OF WORK: THE PRINCIPAL FEATURES OF THE WORK INCLUDE CONSTRUCTION OF A TRUNK SEWER CONSISTING OF APPROXIMATELY 28,500 L.F. OF 15 OR 16-INCH SEWER, 36,200 L.F. OF 12-INCH SEWER, 1,300 L.F. OF 8 INCH SEWER, AND A SEWAGE PUMPING STATION, COMMUNITOR BAR RACK, ALL OF WHICH IS ESTIMATED TO COST FROM $3,000,000 TO $4,500,000.

THEREFORE, BYARS CONTENDS THAT ONLY AN AWARD TO IT WITHIN THE ESTIMATED PRICE RANGE ESTABLISHED IN THE IFB WAS PERMITTED, WHILE, ON THE OTHER HAND, AN AWARD TO PESTANA WOULD EXCEED THE MAXIMUM AMOUNT IN THE ESTIMATED PRICE RANGE BY 14 PERCENT.

WHILE IT IS BELIEVED THAT EVERY REASONABLE EFFORT SHOULD BE MADE TO DISCLOSE TO BIDDERS, PRIOR TO BIDDING, ADEQUATE INFORMATION CONCERNING THE MAGNITUDE, IN TERMS OF PHYSICAL CHARACTERISTICS, OF CONSTRUCTION PROJECTS, IT IS NOT REQUIRED THAT COST ESTIMATES BE INFLEXIBLE OR ABSOLUTE. THIS POSITION APPEARS TO HAVE BEEN TAKEN IN FPR SEC. 1 18.109 (1971 2D ED., AMEND. 95) WHICH CALLS FOR AN "ESTIMATED PRICE RANGE" AND NOT THE DEFINITIVE GOVERNMENT COST ESTIMATE. NEITHER THE IFB NOR THE ABOVE REGULATION PREVENTS THE MAKING OF AN AWARD IF THE ESTIMATED COST RANGE IS EXCEEDED. THE ESTIMATED COST RANGE DOES NOT ESTABLISH AN INFLEXIBLE CEILING, AND NONE OF THE BIDDERS APPEAR TO HAVE BEEN MISLED BY ITS INCLUSION SINCE ALL BIDDERS EXCEEDED THE CEILING OF THE ESTIMATED PRICE RANGE.

VI. THE OBTAINING OF EQUAL EMPLOYMENT OPPORTUNITY INFORMATION THE NEXT CONTENTION RAISED BY BYARS IS THAT NPS, CONTRARY TO THE CONTRACTING OFFICER'S STATEMENT, DID NOT CONTACT BOTH BYARS AND PESTANA SIMULTANEOUSLY TO OBTAIN EEO INFORMATION NECESSARY FOR AN AWARD. BYARS CONTENDS THAT, WHILE IT WAS CONTACTED ON JUNE 7 AND ADVISED THAT IT WAS BEING CONSIDERED FOR AWARD, PESTANA WAS NOT CONTACTED UNTIL JUNE 19, AFTER THE DECISION HAD BEEN MADE TO CANCEL THE WAWONA WATER CONTROL FACILITIES PROJECT. THIS, ACCORDING TO BYARS, WAS EVIDENCE OF NPS'S IMPROPER MANIPULATION OF FUNDS.

THE RECORD IS UNCLEAR REGARDING WHEN NPS CONTACTED PESTANA FOR EEO INFORMATION, AND WHAT BYARS WAS TOLD ON JUNE 7. WHILE IT MAY HAVE APPEARED THAT BYARS WAS THE FRONT RUNNER FOR THIS PROCUREMENT WHEN ITS EEO COMPLIANCE INFORMATION WAS REQUESTED, ONCE ADDITIONAL FUNDING WAS PROPERLY OBTAINED AS WE DISCUSSED ABOVE, AND PESTANA WAS IN LINE FOR AWARD, IT WAS APPROPRIATE TO REQUEST THAT INFORMATION FROM PESTANA. THE FACT THAT THIS INFORMATION MAY HAVE BEEN OBTAINED AT A POINT IN TIME AFTER BYARS WAS CONTACTED DOES NOT, IN AND OF ITSELF, ESTABLISH FAVORITISM OR UNFAIR PROCUREMENT PRACTICES.

VII. ADDITIVE ITEMS WERE UNNECESSARY

THE FINAL ARGUMENT THAT COUNSEL FOR BYARS RAISES IS THAT THE INCLUSION OF THE ADDITIVE SCHEDULES IN THE IFB INTRODUCES UNNECESSARY ITEMS THAT ARE NOT ESSENTIAL FOR THE PROCUREMENT, AND THAT "*** THE ENTIRE ELECTRICAL SYSTEM WAS AN AFTER THOUGH, AND NOT THE 'IMPORTANT AND NECESSARY' WORK WHICH THE PARK SERVICE NOW SEEKS TO JUSTIFY."

OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, CITED ABOVE, PROVIDE THAT WHERE AN ISSUE OF PROTEST IS BASED UPON AN ALLEGED IMPROPRIETY IN THE IFB WHICH IS APPARENT PRIOR TO BID OPENING, IT MUST BE RAISED PRIOR TO BID OPENING TO BE CONSIDERED. SINCE BYARS DID NOT PROTEST THE INCLUSION OF THE ADDITIVE ITEM SCHEDULES UNTIL AFTER THE TIME SET FOR BID OPENING, ITS PROTEST IN THIS REGARD WILL NOT BE CONSIDERED.

RETURNING TO BYARS' ALLEGATION OF FAVORITISM AND QUESTIONABLE PROCUREMENT PRACTICES SUCH AS TO TAINT ANY AWARD TO PESTANA, WE ARE UNABLE TO DISCERN FROM THE RECORD BEFORE US ANY SUBSTANTIAL EVIDENCE THAT THE ACTIONS TAKEN BY NPS WERE INFLUENCED BY ANY CONSIDERATION OTHER THAN THE BEST JUDGMENT OF THE CONTRACTING OFFICIALS CONCERNED. ON THIS BASIS, WE FIND NO LEGAL REASON TO OBJECT TO THE PROPOSED AWARD TO PESTANA. WE CAN UNDERSTAND THE BASES FOR THE ALLEGATIONS OF PREJUDICE RAISED BY BYARS. HOWEVER, WHEN EXAMINED INDIVIDUALLY, AND IN LIGHT OF THE REGULATIONS APPLICABLE TO THE PROCUREMENT, WE HAVE NO BASIS TO CONCLUDE THAT NPS HAS ACTED IN A MANNER THAT IS SUBJECT TO QUESTION. ALTHOUGH WE FOUND NO INDICATION THAT BYARS WAS DELIBERATELY DISPLACED AS LOW BIDDER, WE BELIEVE THAT THE APPROACH IN THE ASPR SERVES TO AVOID THE POSSIBLE APPEARANCE OF PREJUDICE IN PROCUREMENTS OF THIS NATURE.

THEREFORE, WE ARE RECOMMENDING, BY LETTER OF TODAY, TO THE FEDERAL PROCUREMENT REGULATIONS DIVISION THAT IT CONSIDER ADOPTING PROVISIONS FOR THE FEDERAL PROCUREMENT REGULATIONS SIMILAR TO THOSE CONTAINED IN ASPR, RELATING TO PROCUREMENTS INVOLVING ADDITIVE OR DEDUCTIVE ITEMS.

ACCORDINGLY, THE PROTEST OF BYARS IS DENIED.