B-182261, DEC 10, 1974

B-182261: Dec 10, 1974

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NOTWITHSTANDING BIDDER'S CONTENTION THAT IT INTENDED NO CHARGE FOR THAT ITEM AND EVALUATION WAS TO BE MADE ON BASIS OF TOTAL BASE BID FOR ALL ITEMS. EVIDENCE OFFERED TO ESTABLISH BIDDER'S INTENT TO BID NO CHARGE FOR THAT ITEM IS NOT FOR CONSIDERATION AS BID WAS NONRESPONSIVE AS SUBMITTED. ON PAGE B5-2 OF THE BUILDING SCHEDULE SPACES WERE PROVIDED FOR BIDS FOR DEMOLITION AND DISPOSAL OF 3 ADDITIONAL BUILDINGS. THE INVITATION WAS AMENDED TO CHANGE ITEM NO. 11 TO COVER DEMOLITION AND DISPOSAL OF "CORRIDORS. THE SPACE PROVIDED AT ITEM NO. 11 FOR AN AMOUNT FOR DEMOLITION AND DISPOSAL OF THE CORRIDORS WAS LEFT BLANK. T & R VERIFIED THE CORRECTNESS OF ITS TOTAL BASE BID AND STATED THAT ITS PRICE FOR ITEM NO. 11 WAS INCLUDED IN THE TOTAL BASE BID.

B-182261, DEC 10, 1974

1. OMISSION OF BID PRICE FOR ONE OF 11 ITEMS IN BIDDING SCHEDULE FOR DEMOLITION OF BUILDINGS RENDERS BID NONRESPONSIVE WHERE IFB STATES THAT BIDS SHALL BE SUBMITTED ON INDIVIDUAL ITEMS OF SCHEDULE, NOTWITHSTANDING BIDDER'S CONTENTION THAT IT INTENDED NO CHARGE FOR THAT ITEM AND EVALUATION WAS TO BE MADE ON BASIS OF TOTAL BASE BID FOR ALL ITEMS, SINCE BID DID NOT OTHERWISE CLEARLY OBLIGATE BIDDER TO PERFORM ALL WORK 2. WHERE BID OMITTED PRICE FOR 1 OF 11 ITEMS, EVIDENCE OFFERED TO ESTABLISH BIDDER'S INTENT TO BID NO CHARGE FOR THAT ITEM IS NOT FOR CONSIDERATION AS BID WAS NONRESPONSIVE AS SUBMITTED.

T & R EXCAVATORS:

BY TELEFAX DATED SEPTEMBER 19, 1973, T & R EXCAVATORS (T & R) PROTESTS THE ARMY CORPS OF ENGINEERS' REJECTION OF ITS BID SUBMITTED PURSUANT TO INVITATION FOR BIDS (IFB) NO. DACAD-75-B-0003 FOR DEMOLITION OF BUILDINGS, PRESIDIO OF SAN FRANCISCO, CALIFORNIA. SPECIFICALLY, T & R CONTESTS THE CORPS' DETERMINATION THAT THE OMISSION FROM ITS APPARENT LOW BID OF A PRICE FOR ITEM NO. 11, FOR DEMOLITION AND DISPOSAL OF CORRIDORS, RENDERS ITS BID NONRESPONSIVE.

THE BIDDING SCHEDULE ON PAGE B5-1 PROVIDED A SPACE DENOMINATED "AMOUNT" FOR INDIVIDUAL BIDS FOR DEMOLITION AND DISPOSAL OF 10 SEPARATE BUILDINGS, AN 11TH SPACE FOR BIDS FOR DEMOLITION AND DISPOSAL OF CORRIDOR 2, AND PROVIDED A SPACE FOR A "TOTAL BASE BID." IN ADDITION, ON PAGE B5-2 OF THE BUILDING SCHEDULE SPACES WERE PROVIDED FOR BIDS FOR DEMOLITION AND DISPOSAL OF 3 ADDITIONAL BUILDINGS, DESIGNATED AS "ADDITIVE ITEMS." INSOFAR AS PERTINENT HERE, THE INVITATION WAS AMENDED TO CHANGE ITEM NO. 11 TO COVER DEMOLITION AND DISPOSAL OF "CORRIDORS, EXCEPT THOSE INDICATED AS ADDITIVIES."

T & R'S BID LISTED SEPARATE PRICES FOR EACH OF THE TEN BUILDINGS LISTED AS ITEMS 1 THROUGH 10, AND A TOTAL BASE BID OF $40,900, EQUAL TO THE TOTAL OF THE SEPARATE BID PRICES FOR THOSE TEN BUILDINGS, TOGETHER WITH A BID OF $5,500 FOR EACH OF THE THREE ADDITIVE ITEMS.

THE SPACE PROVIDED AT ITEM NO. 11 FOR AN AMOUNT FOR DEMOLITION AND DISPOSAL OF THE CORRIDORS WAS LEFT BLANK. UPON BEING NOTIFIED THAT THE CORPS CONSIDERED THE OMISSION AS RENDERING ITS BID NONRESPONSIVE, T & R VERIFIED THE CORRECTNESS OF ITS TOTAL BASE BID AND STATED THAT ITS PRICE FOR ITEM NO. 11 WAS INCLUDED IN THE TOTAL BASE BID. IN THIS CONNECTION, T & R HAS SUBMITTED TO OUR OFFICE WORK SHEETS AND AN AFFIDAVIT BY THE PARTNER WHO PREPARED AND SUBMITTED THE BID TO SUPPORT ITS POSITION THAT NO CHARGE WAS INTENDED FOR ITEM NO. 11.

IN ITS LETTER OF SEPTEMBER 9, 1974, WHICH DENIED T & R'S AGENCY LEVEL PROTEST, THE ARMY CORPS OF ENGINEERS RELIED ON OUR HOLDING AT 51 COMP. GEN. 543 (1972), IN SUPPORT OF ITS POSITION THAT A FAILURE TO BID ON ALL ITEMS OF A SCHEDULE RENDERS THE BID NONRESPONSIVE. FROM THAT DECISION, THE CORPS QUOTED THE FOLLOWING RULE APPLICABLE IN THE CASE OF A BIDDER'S FAILURE TO BID ON ALL ITEMS:

"WHERE THERE IS ANY SUBSTANTIAL QUESTIONS AS TO WHETHER THE BIDDER UPON AWARD COULD BE REQUIRED TO PERFORM ALL OF THE WORK CALLED FOR IF HE CHOSE NOT TO, THE INTEGRITY OF THE COMPETITIVE BID SYSTEM REQUIRES THE BID BE REJECTED AS, AT LEAST, AMBIGUOUS UNLESS THE BID OTHERWISE AFFIRMATIVELY INDICATES THAT THE BIDDER CONTEMPLATED PERFORMANCE OF THE WORK OR THE ITEM IS NOT TO BE AWARDED *** 41 COMP. GEN. 412 *** 38 COMP. GEN. 372 ***."

T & R TAKES EXCEPTION TO THE CORPS' ADVERSE DETERMINATION. ITS ARGUMENTS MAY BE SUMMARIZED AS FOLLOWS: FIRST, T & R CONTENDS THAT ONLY ITS TOTAL BASE BID IS RELEVANT FOR EVALUATION PURPOSES AND HENCE THAT THE OMISSION OF A SINGLE ITEM IS IMMATERIAL; SECONDLY, T & R MAINTAINS THAT BY THE TERMS OF ITS BID, IT OBLIGATED ITSELF TO PERFORM ALL WORK CALLED FOR UNDER THE INVITATION, INCLUDING ITEM NO. 11; LASTLY T & R ASSERTS THAT ITS TOTAL BASE BID IS CORRECT AND THAT THE FACT THAT IT INTENDED NO CHARGE FOR ITEM NO. 11 CAN BE DETERMINED FROM T & R'S ELECTION TO PERFORM, TOGETHER WITH VERIFICATION OF ITS INTENT TO MAKE NO CHARGE FOR ITEM NO. 11 SUBMITTED IN THE FORM OF THE PARTNERS AFFIDAVIT.

IN REGARD TO ITS FIRST ARGUMENT, T & R POINTS TO THE LANGUAGE OF ARMED SERVICES PROCUREMENT REGULATION 2.404.2(A) REQUIRING REJECTION OF BIDS WHICH FAIL TO CONFORM TO THE ESSENTIAL REQUIREMENTS OF THE IFB. T & R'S ARGUMENT AS TO THE NONESSENTIALITY OF A BID PRICE FOR ITEM NO. 11 IS PREDICATED LARGELY UPON THE LANGUAGE OF THE INVITATION TO THE EFFECT THAT AWARD WILL BE MADE ON THE BASIS OF THE AGGREGATE AMOUNT OF THE FIRST OR BASE ITEM. IN THIS REGARD, IT IS POINTED OUT THAT PARAGRAPH 20 OF THE IFB PROVIDES IN PART AS FOLLOWS:

"20 ADDITIVE ITEMS *** THE LOW BIDDER FOR PURPOSES OF AWARD SHALL BE THE RESPONSIBLE CONFORMING BIDDER OFFERING THE LOW AGGREGATE AMOUNT FOR THE FIRST OR BASE BID TEM, PLUS (IN ORDER OF PRIORITY LISTED IN THE SCHEDULE) THOSE ADDITIVE BID ITEMS PROVIDING THE MOST FEATURES OF THE WORK WITHIN THE FUNDS DETERMINED BY THE GOVERNMENT TO BE AVAILABLE BEFORE BIDS ARE OPENED."

IT IS T & R'S CONTENTION THAT SINCE ONLY THE AGGREGATE OR TOTAL BASE BID IS RELEVANT FOR EVALUATION PURPOSES, IT NECESSARILY FOLLOWS THAT THE ITEMIZATION OF THE INDIVIDUAL BID PRICES COMPRISING THAT TOTAL IS IMMATERIAL. IN THIS CONNECTION, THE PROTESTER CITES OUR DECISIONS 51 COMP. GEN. 255 (1972); B-176425, OCTOBER 18, 1972; B-158595, MAY 26, 1966; AND B-151276, MAY 28, 1963.

WE DO NOT BELIEVE B-158595, SUPRA, IS RELEVANT TO THE PRESENT CASE AS THAT DECISION DID NOT INVOLVE THE OMISSION OF A BID PRICE FOR A PARTICULAR ITEM, BUT RATHER THE FAILURE TO PROPERLY ALLOCATE CERTAIN COSTS. THE REMAINING CASES CITED DO INVOLVE BIDDERS' FAILURES TO PROVIDE BIDS ON PARTICULAR ITEMS OF BIDDING SCHEDULES. THOSE, HOWEVER, ARE NOT SQUARELY IN POINT. IN B-176425, SUPRA, THE OMISSION OF UNITS PRICES WAS CONSIDERED A MINOR IRREGULARITY BECAUSE THEY WERE NOT TO BE USED FOR EVALUATION, WERE OTHERWISE READILY ASCERTAINABLE FROM THE BID, AND AWARD WAS TO BE MADE ON THE TOTAL OF THE LINE ITEM PRICES WHICH WERE SUPPLIED. IN 51 COMP. GEN. 255, SUPRA, THE BIDDER'S FAILURE TO SUBMIT PRICES ON SUBITEMS WAS HELD TO BE IMMATERIAL IN VIEW OF EXPLICIT INSTRUCTIONS IN THE INVITATION THAT BIDDERS WERE NOT TO SUBMIT SEPARATE PRICES FOR ANY OF THE SUBITEMS AND INASMUCH AS THE FORM OF THE BID SUBMISSION WAS SUCH THAT IT CLEARLY OBLIGATED THE BIDDER TO FURNISH ALL LISTED REQUIREMENTS. SIMILARLY, B- 151276, SUPRA, INVOLVED A BIDDER'S FAILURE TO SUBMIT SUBITEMS PRICES UNDER 2 SCHEDULES IN RESPONSE TO AMBIGUOUS PROVISIONS OF AN INVITATION WHICH COULD FAIRLY BE CONSTRUED NOT TO REQUIRE SEPARATE BIDS ON THE INDIVIDUAL ITEMS OF THOSE PARTICULAR SCHEDULES IN ORDER TO BIND THE BIDDER TO THE PERFORMANCE REQUIRED.

WHERE, AS HERE, THE OMISSION OF A PRICE FOR AN ITEM AFFECTS PRICE OR PERFORMANCE, THE TEST OF WHETHER THE PARTICULAR OMISSION REQUIRES REJECTION OF THE BID IS NOT WHETHER THE PRICE OF THE ITEM IS CRITICAL TO EVALUATION, BUT WHETHER, NOTWITHSTANDING THE PARTICULAR OMISSION, THE BIDDER HAS OBLIGATED ITSELF TO PERFORM ALL WORK CALLED FOR BY THE INVITATION. 51 COMP. GEN. 543, SUPRA; B-173823, SEPTEMBER 2, 1971; AND B- 179081, OCTOBER 3, 1973. IT IS TO THIS TEST THAT T & R'S SECOND CONTENTION IS ADDRESSED.

T & R CLAIMS THAT THE TERMS OF ITS BID WOULD, IN THE EVENT OF AWARD, BIND IT TO FURNISH ALL WORK CALLED FOR UNDER THE IFB, INCLUDING ITEM NO. 11 FOR DEMOLITION AND DISPOSAL OF CORRIDORS. IN THIS REGARD, T & R URGES THAT THE LANGUAGE OF THE BID FORM FURNISHED WITH THE INVITATION AND ON WHICH IT SUBMITTED ITS BID CONSTITUTES AN AFFIRMATIVE AND EXPRESS DECLARATION OF T & R'S INTENTION TO PERFORM ALL WORK CALLED FOR UNDER THE IFB AND SO OBLIGATES IT IN THE EVENT OF AWARD. THE LANGUAGE OF THE BID FORM REFERRED TO IS AS FOLLOWS:

"IN COMPLIANCE WITH YOUR INVITATION FOR BIDS, THE UNDERSIGNED HEREBY PROPOSES TO PERFORM ALL WORK FOR THE DEMOLITION AND DISPOSAL OF THE BUILDINGS IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, CONDITIONS AND AMENDMENTS (STATE NUMBER AND DATE) RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED."

T & R FURTHER SUGGESTS THAT THE FACT THAT AWARD IS TO BE MADE ON THE BASIS OF THE ENTIRE SCHEDULE WOULD OBLIGATE IT TO FURNISH ALL WORK UNDER THE CONTRACT.

IN URGING THAT THE TERMS OF ITS BID BIND IT TO PERFORM ALL WORK CALLED FOR BY THE IFB, T & R RECOGNIZES THE APPLICABILITY OF THE GENERAL RULE STATED IN 51 COMP. GEN. 543, QUOTED ABOVE, BUT STATES THAT THE FINDING OF NONRESPONSIVENESS IN THAT CASE AND IN THE TWO CASES CITED THEREIN, 41 COMP. GEN. 412 (1961) AND 38 ID. 372 (1958), ARE DISTINGUISHABLE EITHER IN THAT THE OMITTED ITEM PRICES WAS ESSENTIAL TO EVALUATION OR THE BIDDER COULD NOT BE FOUND TO HAVE AFFIRMATIVELY BOUND ITSELF TO PERFORM ALL WORK. T & R SUGGESTS THAT OUR DECISION B-173823, SEPTEMBER 2, 1971, IS MORE IN POINT. THAT DECISION INVOLVED A BIDDER'S FAILURE TO INCLUDE A PRICE FOR 1 OF 63 ITEMS UNDER 1 OF 7 SEPARATE SCHEDULES. THERE THE IFB DID NOT CONTAIN LANGUAGE EXPRESSLY REQUIRING THE BIDDER TO QUOTE PRICES ON ALL ITEMS. AND, NOTWITHSTANDING THE OMISSION OF AN INDIVIDUAL PRICE FOR ONE ITEM OF THE PARTICULAR SCHEDULE, THE BIDDER IN THAT CASE HAD INSERTED NEXT TO ITS BID FOR "JOB TOTAL" THE STATEMENT THAT "THIS BID IS BASED ON AWARD OF ALL ITEMS." WE THERE CONCLUDED THAT UPON ACCEPTANCE OF ITS BID, THE BIDDER WOULD BE LEGALLY OBLIGATED TO PERFORM THE WORK ENCOMPASSED BY ALL ITEMS AND THAT ITS BID COULD THEREFOR BE CONSIDERED FOR AWARD.

UNLIKE THE SITUATION IN B-173823, ABOVE, THE IFB TO WHICH T & R RESPONSED SPECIFICALLY PROVIDED THAT "BIDS MUST BE SUBMITTED ON ALL INDIVIDUAL ITEMS OF THIS BIDDING SCHEDULE; OTHERWISE BIDS FOR THIS BIDDING SCHEDULE WILL BE CONSIDERED NONRESPONSIVE AND WILL BE REJECTED." FURTHERMORE, THE BID IN THAT CASE INCLUDED A SPECIFIC COMMITMENT TO PERFORM ALL WORK. SINCE THE ONLY EVIDENCE OF INTENT TO BE BOUND OFFERED BY T & R IS THE STANDARD LANGUAGE SUBMITTED BY ALL BIDDERS, PLUS THE FACT THAT AWARD IS TO BE MADE ON AN AGGREGATE BASIS, WE DO NOT VIEW B-173823, SUPRA, AS CONTROLLING HERE.

RATHER, OUR DECISION B-179081, OCTOBER 3, 1973, APPEARS TO BE MORE IN POINT. THERE A BIDDER WHO HAD OMITTED A PRICE FOR AN ITEM MAINTAINED THAT THE FACT THAT AWARD WAS REQUIRED TO BE MADE ON THE BASIS OF ALL QUANTITIES CALLED FOR IN THE SCHEDULE RENDERED IMMATERIAL ITS FAILURE TO BID FOR AN ITEM ON THE SCHEDULE. THERE WE POINTED OUT THAT THE FACT THAT AWARD WAS TO BE BASED ON ALL QUANTITIES DID NOT NEGATE THE EFFECT OF LANGUAGE IN THE INVITATION REQUIRING BIDS ON ALL ITEMS. FURTHER WE STRESSED THAT THE DETERMINATION OF WHETHER THE OMISSION OF A PRICE FOR A PARTICULAR ITEM REQUIRES REJECTION DEPENDS LARGELY UPON THE BIDDER'S OBLIGATION AS ESTABLISHED BY OTHER PORTIONS OF THE BID TO FURNISH ALL ITEMS, INCLUDING THAT FOR WHICH A PRICE WAS OMITTED. T & R'S ASSERTION THAT THE LANGUAGE OF THE BID SUBMISSION FORM SO OBLIGATES IT IS AT BEST TENUOUS. WE HAVE HELD THAT AN OVERALL OR BLANKET OFFER TO CONFORM TO SOLICITATION REQUIREMENTS WILL NOT OF ITSELF CURE A SPECIFIC DEVIATION OR QUALIFICATION IN A BID. WE VIEW THE STANDARD LANGUAGE OF THE BID FORM TO PERFORM WORK IN ACCORDANCE WITH THE SCHEDULE, SUCH AS HERE INVOLVED, INSUFFICIENT TO CURE THE OMISSION OF A BID PRICE FOR AN INDIVIDUAL ITEM THAT IS OTHERWISE REQUIRED BY THE TERMS OF THE SOLICITATION.

SINCE T & R'S BID CONTAINS NOTHING WHICH AFFIRMATIVELY EVIDENCES ITS INTENT TO PERFORM THE WORK CALLED FOR BY THE ITEM FOR WHICH NO PRICE WAS STATED, WE BELIEVE ITS BID WAS AT LEAST AMBIGUOUS AND, THEREFORE, PROPRRLY REJECTED AS NONRESPONSIVE. 51 COMP. GEN. 543, SUPRA. INASMUCH AS T & R'S BID WAS NONRESPONSIVE ON ITS FACE, THE EVIDENCE EXTRANEOUS TO THE BID ITSELF OFFERED TO ESTABLISH ITS INTENT TO BE BOUND TO PERFORM ITEM NO. 11 IS NOT FOR CONSIDERATION. 40 COMP. GEN. 432 (1961); B-173823, SUPRA.

ACCORDINGLY, T & R'S PROTEST IS DENIED.