B-181621, DEC 12, 1974

B-181621, DEC 12, 1974

1. PROTEST BY LOW BIDDER AGAINST RESOLICITATION OF BIDS DENIED WHERE RECORD SHOWS THAT BID SCHEDULE SETTING FORTH DEDUCTIVE BID ITEM UNDER INITIAL IFB WAS AMBIGUOUS AND CONFUSED THE SECOND LOW BIDDER. 2. PROTEST CONCERNING ALLEGED AMBIGUITY IN SPECIFICATION WAS NOT UNTIMELY UNDER 4 C.F.R. 20.2(A) EVEN THOUGH NOT MADE UNTIL AFTER BID OPENING SINCE SUCH RULE IS NOT APPLICABLE TO AGENCY AND, FURTHERMORE, SUCH IMPROPRIETY WAS NOT APPARENT UNTIL REVEALED BY BIDDING.

B. E. BEECROFT COMPANY, INC.:

B. E. BEECROFT COMPANY, INC. (BEECROFT) PROTESTS THE ACTION OF THE DEPARTMENT OF THE NAVY, NAVAL FACILITIES ENGINEERING COMMAND (NAVY), IN ISSUING AN AMENDMENT TO A SOLICITATION AFTER BID OPENING AND ACCEPTING NEW BIDS ON THE PROCUREMENT WHEN A DETERMINATION WAS MADE THAT CERTAIN AMBIGUITIES EXISTED IN THE INITIAL SOLICITATION.

BEECROFT CONTENDS THAT IT WAS AN ABUSE OF THE CONTRACTING OFFICER'S DISCRETION TO PERMIT ADDITIONAL BIDDING AFTER THE INITIAL BIDS WERE OPENED. FURTHERMORE, BEECROFT ALLEGES THAT A SECOND BIDDING WITHOUT A CHANGE IN THE SCOPE OF THE WORK OR CHANGE IN THE SPECIFICATIONS CONSTITUTES A "PEDDLING" OF BIDS AND DISCOURAGES BIDDERS FROM INITIALLY SUBMITTING THEIR BEST BIDS.

INVITATION FOR BIDS (IFB) NO. N62467-74-C-9213 WAS ISSUED BY THE NAVY ON MAY 16, 1974, FOR THE REPAIR AND REMODELING OF 223 KITCHENS IN THE FAMILY HOUSING UNITS AT THE NAVAL AIR STATION, CHASE FIELD, BEEVILLE, TEXAS. ACCOMPANYING THE SOLICITATION PACKAGE WERE SEVERAL ENGINEERING DRAWINGS WHICH WERE EXPRESSLY MADE A PART OF THE SPECIFICATIONS, INCLUDING NAVFAC DRAWING NO. 5023995, A DETAILED PLAN OF THE SEVERAL KITCHEN TYPES INVOLVED IN THE PROJECT, AND NAVFAC DRAWING NO. 5023992, A SITE PLAN INDICATING THE KITCHEN TYPE IN EACH INDIVIDUAL HOUSING UNIT.

BIDDERS WERE REQUIRED TO SUBMIT A PRICE FOR THE ENTIRE WORK, AS WELL AS PRICES FOR SEVERAL SPECIFIED DEDUCTIVE BID ITEMS. IN THIS REGARD, THE IFB PROVIDED IN PERTINENT PART:

"1C.4 ITEMS OF BIDS. BIDS SHALL BE SUBMITTED *** UPON THE FOLLOWING ITEMS:

ITEM NO. 1: PRICE FOR THE ENTIRE WORK, COMPLETE IN ACCORDANCE WITH THE DRAWINGS AND SPECIFICATIONS.

ITEM NO. 4: AMOUNT TO BE DEDUCTED FROM THE PRICE BID UNDER ITEM 1 FOR THE DELETION OF ALL WORK IN KITCHENS, TYPES 'R'.

ITEM NO. 5: AMOUNT TO BE DEDUCTED FROM THE PRICE BID UNDER ITEM 1 FOR THE DELETION OF ALL WORK IN KITCHENS, TYPE 'P'.

ITEM NO. 6: AMOUNT TO BE DEDUCTED FROM THE PRICE BID UNDER ITEM 1 FOR THE DELETION OF ALL WORK IN KITCHENS, TYPE 'N'."

THE SOLICITATION PROVIDED THAT THE LOW BIDDER FOR PURPOSES OF AWARD WOULD BE THE BIDDER OFFERING THE LOW AGGREGATE AMOUNT FOR THE FIRST ITEM MINUS THE TOTAL OF THE PRICES FOR THE DEDUCTIVE BID ITEMS. THE GOVERNMENT RESERVED THE OPTION OF ADDING TO THE CONTRACT WITHIN 60 DAYS AFTER THE DATE OF THE AWARD ANY WORK OMITTED BY THE DEDUCTIVE BID ITEMS AT THE ORIGINAL BID PRICES.

BIDS WERE OPENED ON JUNE 20, 1974, AND OF THE SIX BIDDERS RESPONDING TO THE SOLICITATION, BEECROFT WAS LOW WITH A PRICE, INCLUDING DEDUCTIVE BID ITEMS, OF $281,454. I.C. SALAZAR CONSTRUCTION COMPANY (SALAZAR) WAS SECOND LOW BIDDER AT $292,980.

BY LETTER OF JUNE 21, 1974, SALAZAR INFORMED THE NAVY THAT ITS BID WAS BASED ON AN ERRONEOUS INTERPRETATION OF DEDUCTIVE BID ITEMS 4 AND 5. WAS SALAZAR'S INITIAL UNDERSTANDING THAT DEDUCTIONS WERE TO BE LISTED ONLY FOR THE FOUR TYPE "R" AND TEN TYPE "P" KITCHENS INDICATED ON NAVFAC DRAWING 5023992. SALAZAR STATED THAT IT LEARNED AFTER BID OPENING THAT DEDUCTIONS WERE TO BE INCLUDED FOR ALL "R" AND "P" TYPE KITCHENS, INCLUDING THE REVERSE KITCHEN CONFIGURATIONS ("R" R AND "P" R) INDICATED IN THE NAVFAC DRAWINGS. THERE ARE 6 KITCHENS OF THE "R" R TYPE AND 7 OF THE "P" R TYPE. IN ITS LETTER, SALAZAR CONTENDED THAT IT HAD NOT SUBMITTED A DEDUCTIVE PRICE FOR KITCHEN CONFIGURATION "R" R UNDER ITEM 4 AND "P" R UNDER ITEM 5 SINCE, LITERALLY READ, THIS WAS NOT REQUIRED BY THE TERMS OF THE IFB.

UPON REEVALUATION OF THE SPECIFICATIONS, THE CONTRACTING OFFICER AGREED THAT THE PORTION OF THE IFB SETTING FORTH THE DEDUCTIVE BID ITEMS WAS AMBIGUOUS AND DETERMINED THAT REBIDDING AFTER CLARIFICATION OF THE DEDUCTIVE BID ITEMS WAS NECESSARY. ON JUNE 21, 1974, THE NAVY ISSUED AN AMENDMENT TO THE IFB WITH A NEW BID OPENING DATE OF JUNE 26, 1974. COPIES OF THE AMENDMENT WERE SENT TO THE SIX BIDDERS WHO HAD INITIALLY RESPONDED TO THE IFB. THE AMENDMENT OF JUNE 21, 1974, PROVIDED IN PERTINENT PART:

"CANCEL BID ITEMS TWO THROUGH SIX. ADD: 'BID ITEM NO. SEVEN: "AMOUNT TO BE DEDUCTED FROM THE ORIGINAL PRICE BID UNDER ITEM NO. ONE, 20 JUNE 1974, FOR THE DELETION OF ALL THE FOLLOWING WORK:

C. DELETION OF ALL WORK IN TEN TYPE R KITCHENS.

D. DELETION OF ALL WORK IN SEVENTEEN TYPE P KITCHENS.

E. DELETION OF ALL WORK IN FOURTEEN TYPE N KITCHENS."'

AT THE SECOND BID OPEING ON JUNE 26, 1974, SALAZAR WAS LOW BIDDER AT $273,080, AND GULF COAST PAINTING AND SANDBLASTING (GULF COAST) WAS SECOND LOW BIDDER AT $276,454. TWO OF THE ORIGINAL SIX BIDDERS, INCLUDING BEECROFT, LEFT THEIR INITIAL BIDS UNCHANGED. THE TWO REMAINING BIDDERS DID NOT SUBMIT REBIDS ON THE JOB. NOTWITHSTANDING THE PROTEST FILED IN THIS OFFICE BY BEECROFT ON JUNE 26, 1974, THE NAVY DETERMINED THAT IN ACCORDANCE WITH ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 407.8(B)(3)(I)(1974 ED.), AN URGENT NEED EXISTED TO MAKE IMMEDIATE AWARD UNDER THE IFB. PURSUANT TO THIS DETERMINATION OF JUNE 26, 1974, AWARD WAS MADE TO SALAZAR, THE LOW BIDDER.

WITH RESPECT TO THE WORDING OF SECTION 1C.4 OF THE IFB, WE FEEL THAT THE DEDUCTIVE BID ITEMS NOS. 4 AND 5 WERE AMBIGUOUS AND COULD HAVE RESULTED IN SIGNIFICANT VARIATIONS IN BID QUOTATIONS FOR THESE ITEMS. LITERALLY READ, THESE DEDUCTIVE BID ITEMS INCLUDED ONLY KITCHENS OF TYPES "R" AND "P", WHEREAS THE DRAWINGS ACCOMPANYING AND MADE PART OF THE IFB INDICATE THAT THE REVERSE KITCHEN CONFIGURATIONS, "R" R AND "P" R, WERE ALSO INCLUDED IN THE HOUSING UNITS. THUS, THE NUMBER OF KITCHENS INVOLVED IN THE DEDUCTIVE BID ITEMS WAS NOT CLEAR. IT IS A WELL-ESTABLISHED RULE THAT IN ORDER FOR BIDDERS TO COMPETE ON EQUAL TERMS WHEN SUBMITTING BIDS IN RESPONSE TO AN ADVERTISEMENT FOR BIDS FOR PUBLIC WORK, THE SPECIFICATIONS AND INVITATION MUST BE SUFFICIENTLY DEFINITE TO ENABLE THE PREPARATION AND EVALUATION OF BIDS ON A COMMON BASIS. 36 COMP. GEN. 311, 314 (1956).

FINALLY, BEECROFT CONTENDS THAT SALAZAR'S PROTEST IS UNTIMELY SINCE IT RELATES TO AN AMBIGUITY IN THE SPECIFICATIONS. BEECROFT ARGUES THAT UNDER SECTION 20.2(A) OF GAO INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2(A)), NAVY SHOULD NOT HAVE ACCEPTED SALAZAR'S PROTEST SINCE IT WAS NOT MADE PRIOR TO BID OPENING. HOWEVER, A CONTRACTING AGENCY IS NOT PRECLUDED FROM CONSIDERING A PROTEST WHICH MAY HAVE BEEN UNTIMELY IF FILED AT GAO. MOREOVER, WE NOTE THAT EVEN UNDER GAO REGULATIONS, SALAZAR'S PROTEST TO NAVY WOULD NOT HAVE BEEN UNTIMELY SINCE THE ALLEGED IMPROPRIETY IN THE IFB WAS NOT APPARENT UNTIL REVEALED BY THE BIDDING.