B-205280, B-205280.2, APR 8, 1982

B-205280,B-205280.2: Apr 8, 1982

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GAO WILL DECIDE PROTEST WHERE ISSUES ARE ALSO BEFORE COURT OF COMPETENT JURISDICTION WHERE COURT ASKS GAO FOR OPINION. 2. AGENCY SHOULD NOT HAVE REJECTED AS NONRESPONSIVE AN ALTERNATE BID WHICH PROVIDED LUMP-SUM REDUCTIONS BASED ON USE OF FOREIGN CONSTRUCTION MATERIAL. IT WOULD HAVE BEEN PROPER FOR AGENCY TO PROVIDE INFORMATION THROUGH ITS OWN INVESTIGATION. 3. IS A MATTER WHICH IS PROCEDURAL IN NATURE AND DOES NOT AFFECT VALIDITY OF CONTRACT AWARD. THE SOLICITATION WAS FOR CONSTRUCTION OF THE NEW TIGER ISLAND FLOODWALL. AWARD WAS MADE TO SHAPPERT ENGINEERING COMPANY (SHAPPERT). WHICH IS THE STANDARD CLAUSE TO BE INCLUDED IN SOLICITATIONS FOR CONSTRUCTION CONTRACTS. BID OR PROPOSAL OFFERING NONDOMESTIC CONSTRUCTION MATERIAL WILL NOT BE ACCEPTED UNTIL SPECIFICALLY APPROVED BY THE GOVERNMENT.

B-205280, B-205280.2, APR 8, 1982

DIGEST: 1. GAO WILL DECIDE PROTEST WHERE ISSUES ARE ALSO BEFORE COURT OF COMPETENT JURISDICTION WHERE COURT ASKS GAO FOR OPINION. 2. AGENCY SHOULD NOT HAVE REJECTED AS NONRESPONSIVE AN ALTERNATE BID WHICH PROVIDED LUMP-SUM REDUCTIONS BASED ON USE OF FOREIGN CONSTRUCTION MATERIAL, EVEN THOUGH BID DID NOT PROVIDE UNIT PRICE OR ESTIMATED QUANTITY OF CONSTRUCTION MATERIAL. IN THIS CASE, IT WOULD HAVE BEEN PROPER FOR AGENCY TO PROVIDE INFORMATION THROUGH ITS OWN INVESTIGATION. 3. AGENCY'S DECISION TO AWARD CONTRACT, EVEN THOUGH PROTESTER ORALLY ADVISED AGENCY THAT IT WOULD PROTEST SUCH ACTION, IS A MATTER WHICH IS PROCEDURAL IN NATURE AND DOES NOT AFFECT VALIDITY OF CONTRACT AWARD.

KEY CONSTRUCTORS, INC.:

KEY CONSTRUCTORS, INC. (KEY), PROTESTS THE REJECTION OF ITS ALTERNATE BID AS NONRESPONSIVE TO INVITATION FOR BIDS NO. DACW29-81-B 0146, ISSUED BY THE ARMY CORPS OF ENGINEERS (CORPS), NEW ORLEANS DISTRICT. THE SOLICITATION WAS FOR CONSTRUCTION OF THE NEW TIGER ISLAND FLOODWALL, ST. MARY PARISH, LOUISIANA. AWARD WAS MADE TO SHAPPERT ENGINEERING COMPANY (SHAPPERT).

WE SUSTAIN THE PROTEST.

KEY HAS ALSO FILED SUIT IN THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF LOUISIANA (KEY CONSTRUCTORS, INC. V. JOHN MARSH, SECRETARY OF THE ARMY OF THE UNITED STATES, ET AL., CIVIL ACTION NO. 81-4755), ASKING FOR INJUNCTIVE AND DECLARATORY RELIEF. THE COURT ASKED US FOR OUR OPINION IN THE MATTER.

THE SOLICITATION CONTAINED THE FOLLOWING NOTICE CONCERNING THE APPLICATION OF THE BUY AMERICAN ACT, 41 U.S.C. SECS. 10A-10D (1976), WHICH IS THE STANDARD CLAUSE TO BE INCLUDED IN SOLICITATIONS FOR CONSTRUCTION CONTRACTS, DEFENSE ACQUISITION REGULATION (DAR) SEC. 7 2003.65 (1976 ED.):

"8. NOTICE REGARDING BUY AMERICAN ACT. (DAR 18-509.2-1970 SEP)

"THE BUY AMERICAN ACT (41 U.S.C. 10-10D) GENERALLY REQUIRES THAT ONLY DOMESTIC CONSTRUCTION MATERIAL BE USED IN THE PERFORMANCE OF THIS CONTRACT. EXCEPTION FROM THE BUY AMERICAN ACT SHALL BE PERMITTED ONLY IN THE CASE OF NONAVAILABILITY OF DOMESTIC CONSTRUCTION MATERIALS. BID OR PROPOSAL OFFERING NONDOMESTIC CONSTRUCTION MATERIAL WILL NOT BE ACCEPTED UNTIL SPECIFICALLY APPROVED BY THE GOVERNMENT. WHEN A BIDDER OR OFFEROR PROPOSES TO FURNISH NONDOMESTIC CONSTRUCTION MATERIAL, HIS BID OR PROPOSAL MUST SET FORTH AN ITEMIZATION OF THE QUANTITY, UNIT PRICE, AND INTENDED USE OF EACH ITEM OF SUCH NONDOMESTIC CONSTRUCTION MATERIAL. WHEN OFFERING NONDOMESTIC CONSTRUCTION MATERIAL PURSUANT TO THIS PARAGRAPH, BIDS OR PROPOSALS MAY ALSO OFFER, AT STATED PRICES, ANY AVAILABLE COMPARABLE DOMESTIC CONSTRUCTION MATERIAL, SO AS TO AVOID THE POSSIBILITY THAT FAILURE OF A NONDOMESTIC CONSTRUCTION MATERIAL TO BE ACCEPTABLE UNDER THIS PARAGRAPH WILL CAUSE REJECTION OF THE ENTIRE BID."

KEY SUBMITTED A BID, PROPOSING DOMESTIC CONSTRUCTION MATERIAL, WHICH WAS SECOND LOW BID TO SHAPPERT'S LOW BID. HOWEVER, KEY ALSO SUBMITTED AN ALTERNATE BID OFFERING LUMP-SUM PRICE REDUCTIONS ON ITEMS 14, 15 AND 16 AND A LINEAR FOOT PRICE REDUCTION ON ITEM 25, BASED ON THE USE OF BRITISH STEEL. THE ALTERNATE BID STATED THAT BRITISH STEEL WAS BEING OFFERED "BECAUSE OF UNREASONABLENESS OF DOMESTIC PRICES." KEY'S ALTERNATE BID WAS LOW.

THE CORPS REJECTED KEY'S ALTERNATE BID BECAUSE IT DID NOT CONTAIN THE "QUANTITY, UNIT PRICE, AND INTENDED USE OF EACH ITEM OF SUCH NONDOMESTIC CONSTRUCTION MATERIAL," AS REQUIRED BY THE SOLICITATION'S BUY AMERICAN ACT NOTICE. THE CORPS POINTS OUT THAT THE ITEMS IN QUESTION INVOLVE MORE THAN PROVIDING STEEL; THEY INVOLVE SUBSTANTIAL AMOUNTS OF LABOR AND SOME OTHER INCIDENTAL MATERIAL. THEREFORE, IT IS IMPOSSIBLE TO TELL WHAT PART OF THE PRICE REDUCTION IS ATTRIBUTABLE TO THE DIFFERENCE BETWEEN DOMESTIC AND FOREIGN STEEL PRICES AND, ACCORDINGLY, IMPOSSIBLE TO DETERMINE WHETHER DOMESTIC STEEL PRICES ARE UNREASONABLE. THE CORPS FEELS THAT IT WOULD BE IMPROPER FOR KEY TO SUBMIT THE INFORMATION AFTER BID OPENING, BECAUSE IT WOULD GIVE KEY AN OPPORTUNITY AT THAT TIME TO ADJUST THE AMOUNT OF REDUCTION ATTRIBUTABLE TO THE PRICE OF FOREIGN STEEL.

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

SHAPPERT CONCURS IN THE AGENCY'S POSITION REGARDING THE NONRESPONSIVENESS OF KEY'S ALTERNATE BID, BUT ALSO ARGUES THAT THE CLEAR LANGUAGE OF THE BUY AMERICAN ACT PROVISION IN THE SOLICITATION PERMITS THE USE OF FOREIGN STEEL ONLY WHEN AMERICAN STEEL IS UNAVAILABLE, NOT WHEN THE PRICE IS UNREASONABLE. IN SUPPORT OF THAT PROPOSITION, SHAPPERT POINTS TO THE SENTENCE IN THE CLAUSE WHICH READS "EXCEPTION FROM THE BUY AMERICAN ACT SHALL BE PERMITTED ONLY IN THE CASE OF NONAVAILABILITY OF DOMESTIC CONSTRUCTION MATERIALS." SHAPPERT CONTENDS THAT THE LANGUAGE IS QUITE CLEAR AND TO PERMIT AN EXCEPTION TO THE ACT ON THE BASIS OF UNREASONABLE DOMESTIC PRICES IS UNFAIR TO BIDDERS WHO REASONABLY RELIED ON THE LANGUAGE.

THE CORPS DOES NOT AGREE WITH SHAPPERT'S ANALYSIS OF THE CLAUSE. IT IS THE CORPS' CONTENTION THAT THE REFERENCES IN THE CLAUSE TO THE ACT ITSELF AND TO THE DAR PROVISIONS CONCERNING THE ACT, BOTH OF WHICH CONTAIN BOTH EXCEPTIONS, INCORPORATE THOSE EXCEPTIONS INTO THE SOLICITATION. THE CORPS ALSO ARGUES THAT THE FINAL SENTENCE OF THE CLAUSE, WHICH ADMONISHES BIDDERS OFFERING NONDOMESTIC MATERIAL TO ALSO OFFER ANY AVAILABLE DOMESTIC CONSTRUCTION MATERIAL TO AVOID POSSIBLE REJECTION OF THE ENTIRE BID, SUPPORTS ITS CONTENTION. HOWEVER, RECOGNIZING THIS AS AN INARTICULATE STATEMENT OF THE UNREASONABLE PRICE EXCEPTION, THE CORPS HAS BROUGHT THE LANGUAGE OF THE CLAUSE TO THE ATTENTION OF THE DAR COUNCIL, THE GROUP RESPONSIBLE FOR REVISING THE DAR.

FOR THE FOLLOWING REASONS, WE FIND THAT THE CORPS IMPROPERLY REJECTED KEY'S ALTERNATE BID. FIRST, WE AGREE WITH THE CORPS THAT THE SOLICITATION'S BUY AMERICAN ACT CLAUSE DID NOT PROHIBIT THE CORPS FROM CONSIDERING BIDS OFFERING FOREIGN STEEL ON THE BASIS THAT DOMESTIC STEEL WAS UNREASONABLY PRICED. AS THE CORPS HAS POINTED OUT, BOTH THE BUY AMERICAN ACT AND THE RELEVANT DAR PROVISIONS PROVIDE THAT DOMESTIC CONSTRUCTION MATERIALS MUST BE USED UNLESS THE AGENCY DETERMINES THAT DOMESTIC MATERIALS ARE UNAVAILABLE OR UNREASONABLY PRICED. THE ACT AND THE DAR PROVISIONS WERE REFERENCED IN THE CLAUSE, THUS INCORPORATING THEM AND PUTTING ALL BIDDERS ON NOTICE THAT THOSE PROVISIONS APPLY, SEE, E.G., SIGNAL, INC., B-202676, SEPTEMBER 10, 1981, 81-2 CPD 209. ADDITIONALLY, THE CLAUSE USED IN THIS SOLICITATION IS THE STANDARD CLAUSE THAT HAS BEEN REQUIRED BY THE DAR SINCE JANUARY 1967. TO CONCLUDE THAT THE STANDARD CLAUSE REQUIRED BY REGULATION, WHICH PERMITS THE USE OF BOTH EXCEPTIONS, EXCLUDES ONE EXCEPTION WOULD BE ILLOGICAL. ALSO, WHILE ONE SENTENCE DOES INDICATE THAT FOREIGN CONSTRUCTION MATERIAL MAY BE USED ONLY WHEN DOMESTIC MATERIAL IS NOT AVAILABLE, OTHER SENTENCES INDICATE THAT BIDDERS OFFERING FOREIGN MATERIAL SHOULD SUBMIT COMPARABLE DOMESTIC MATERIAL AT STATED PRICES TO AVOID POSSIBLE REJECTION OF THEIR BIDS.

WE THINK THAT THE CORPS ERRED IN REJECTING KEY'S BID AS NONRESPONSIVE. THE CORPS CITES 51 COMP.GEN. 814 (1972) AND C.R.FEDRICK, SUPRA, IN SUPPORT OF ITS POSITION. THOSE CASES DO, IN FACT, HOLD THAT A BID MUST CONTAIN CERTAIN REQUIRED INFORMATION TO PERMIT THE CONTRACTING AGENCY TO EVALUATE THE BID FOR BUY AMERICAN ACT PURPOSES, AND THAT A BIDDER MAY NOT SUPPLY THAT SORT OF INFORMATION AFTER BID OPENING. HOWEVER, A COMPARISON OF THE FACTS IN THOSE CASES AND THE FACTS HERE DOES NOT SUPPORT REJECTION OF KEY'S ALTERNATE BID.

IN 51 COMP.GEN. 814, THE SOLICITATION REQUIRED DETAILED INFORMATION CONCERNING PROPOSED FOREIGN CONSTRUCTION MATERIALS AND COMPARABLE DOMESTIC MATERIALS. A BIDDER, HUBER, HUNT & NICHOLS, INC. (HUBER), PROVIDED THE FOLLOWING INFORMATION IN THE SUBCONTRACTOR LISTING PORTION OF ITS BID:

"SAN JOSE STEEL S. J. CAL.

PARTLY NON-DOMESTIC IN ACCORDANCE WITH B. A. ACT"

IN FINDING THAT HUBER'S BID SHOULD BE REJECTED AS NONRESPONSIVE, WE QUOTED LANGUAGE FROM 39 COMP.GEN.695 (1960), WHICH STATED, IN PART, THAT:

"IT IS, OF COURSE, ESSENTIAL THAT A BIDDER CLAIMING THE PREFERENCE ACCORDED A DOMESTIC BIDDER ESTABLISH THAT THE COST OF FOREIGN PRODUCTS IN HIS BID IS LESS THAN THE COST OF DOMESTIC PRODUCTS. SUFFICIENT INFORMATION ON THIS POINT SHOULD BE SUBMITTED WITH THE BID TO PRECLUDE ANY CHANGE, AFTER BID OPENING, IN THE CLAIMED PERCENTAGES OF FOREIGN AND DOMESTIC PRODUCTS WHICH WOULD AFFECT EITHER THE RELATIVE STANDING OF HIS BID OR ITS STATUS AS A DOMESTIC BID.

HUBER'S BID DID NOT SPECIFY THE PERCENTAGE OF FOREIGN STEEL IT WOULD USE, AND NO BUY AMERICAN ACT EVALUATION COULD BE MADE WITHOUT THAT INFORMATION. OF COURSE, SUCH INFORMATION COULD NOT BE SUPPLIED AFTER BID OPENING, BECAUSE HUBER COULD THEN HAVE DETERMINED THE MANNER IN WHICH ITS BID WOULD BE EVALUATED.

SIMILARLY, IN C.R.FEDRICK, SUPRA, THE IFB REQUIRED THE SAME TYPE OF DETAILED INFORMATION. ONE BIDDER LISTED 21 SETS OF MOTOR DRIVEN PUMPING UNITS AND A PRICE AS THE NONDOMESTIC CONSTRUCTION MATERIAL IT INTENDED TO FURNISH. ANOTHER BIDDER LISTED 8 SETS OF PUMPING UNITS AND 8 SETS OF METAL PIPING SUPPORTS AND VALVES, WITH PRICES LISTED FOR EACH. NEITHER BIDDER PROVIDED ANY INFORMATION CONCERNING COMPARABLE DOMESTIC MATERIAL.

WE FOUND THAT BOTH BIDS WERE RESPONSIVE EVEN THOUGH ADDITIONAL INFORMATION WOULD BE NEEDED FOR A BUY AMERICAN ACT EVALUATION BECAUSE THE INFORMATION PROVIDED WITH THE BIDS WAS SUFFICIENT TO PRECLUDE ANY CHANGE AFTER BID OPENING WHICH WOULD AFFECT THE RELATIVE STANDING OF THE BIDDERS.

THE GENERAL RULE THAT CAN BE DERIVED FROM THESE TWO CASES IS THAT A BID SHOULD NOT BE REJECTED AS NONRESPONSIVE BECAUSE IT DOES NOT CONTAIN ALL OF THE INFORMATION NECESSARY TO PERFORM A BUY AMERICAN ACT EVALUATION, SO LONG AS ADDITIONAL NECESSARY INFORMATION REQUIRED FROM THE BIDDER IS NOT THE SORT OF INFORMATION THAT COULD CHANGE THE RELATIVE STANDING OF THE BIDDER. GENERALLY, THE INFORMATION IN THE BID MUST ESTABLISH WHAT AMOUNT OF THE PROPOSED MATERIAL IS FOREIGN AND WHAT THE PRICE OF THAT MATERIAL IS.

WE THINK THAT THE ONLY REASONABLE READING OF KEY'S BID AND ALTERNATE BID ESTABLISHES THE NECESSARY INFORMATION. THE CORPS IS CONCERNED THAT BECAUSE THE ITEMS INVOLVED ARE COMPRISED OF MORE THAN STEEL AND KEY'S BIDS DO NOT BREAK OUT EITHER THE AMOUNT OR PRICE OF STEEL, KEY WOULD HAVE TO PROVIDE THAT INFORMATION AFTER BID OPENING AND COULD VARY THE BASIS FOR EVALUATION OF ITS BID BY VARYING THOSE AMOUNTS. WHILE KEY'S BIDS DO NOT ESTABLISH THE EXACT AMOUNT OR PRICE OF FOREIGN OR DOMESTIC STEEL, THEY DO ESTABLISH THAT ALL THE STEEL FOR EACH ITEM WILL BE FOREIGN. THEY ALSO ESTABLISH THE TOTAL PRICE DIFFERENCE RESULTING FROM THE USE OF FOREIGN STEEL. THAT DIFFERENCE WOULD BE THE REDUCTION LISTED IN THE ALTERNATE BID, MINUS A FIXED PERCENTAGE FOR THE DIFFERENCE IN THE COST OF BONDS DUE TO THE OVERALL LOWER PRICE. KEY'S ALTERNATE BID STATED THAT THE REDUCTION WAS DUE TO THE USE OF BRITISH STEEL, AND THERE HAS BEEN NO REASONABLE ARGUMENT ADVANCED THAT WOULD ALTER THE LOGICAL CONCLUSION THAT THE COST OF THE OTHER COMPONENTS OF EACH ITEM WOULD NOT VARY BASED ON THE COUNTRY OF ORIGIN OF THE STEEL.

THE ONLY ADDITIONAL INFORMATION REQUIRED TO DETERMINE IF THE COST OF DOMESTIC STEEL IS UNREASONABLE, IS THE ESTIMATED AMOUNT OF STEEL TO BE USED, AND THE PRICE OF DOMESTIC STEEL. WE STATED, IN C.R.FEDRICK, SUPRA, THAT THE AGENCY COULD PROPERLY DETERMINE THE PRICE OF COMPARABLE DOMESTIC MATERIAL BY ITS OWN INVESTIGATION. AS FOR THE AMOUNT OF STEEL, IF KEY WERE TO PROVIDE THE ESTIMATED QUANTITY OF STEEL AFTER BID OPENING, IT COULD STATE THAT FIGURE IN A WAY THAT WOULD MAXIMIZE THE EFFECT OF THE STATED PRICE DIFFERENCE. HOWEVER, SINCE THE ESTIMATED AMOUNT IS JUST FOR EVALUATION PURPOSES AND WOULD NOT BIND BIDDERS TO PROVIDE THAT AMOUNT OF STEEL, A BIDDER COULD DO EXACTLY THE SAME THING IN ITS BID. THEREFORE, EVEN IF KEY HAD PROVIDED THE ESTIMATED QUANTITY OF STEEL IN ITS BID, THE CORPS WOULD HAVE BEEN REQUIRED TO USE ITS OWN ESTIMATE TO VERIFY THE REASONABLENESS OF KEY'S ESTIMATE. WE SEE NO REASON THAT THE CORPS COULD NOT HAVE USED ITS OWN ESTIMATED QUANTITY OF STEEL TO EVALUATE KEY'S ALTERNATE BID. THE MISSING QUANTITY INFORMATION HERE IS UNLIKE THE INFORMATION IN 51 COMP.GEN. 814. THE QUESTION THERE WAS WHAT PERCENTAGE OF THE TOTAL AMOUNT OF STEEL WILL BE FOREIGN. THAT FIGURE COULD ONLY COME FROM THE BIDDER AND WOULD CONTROL THE EVALUATION. HERE THE BID PROVIDES THAT ALL OF THE STEEL FOR THE ITEMS IN QUESTION WILL BE FOREIGN, THE ONLY QUESTION IS WHAT THE TOTAL AMOUNT OF STEEL IS. SINCE THAT FIGURE IS AN ESTIMATE ONLY, THE CORPS COULD AND SHOULD SUPPLY THE INFORMATION. AGAIN, IN C.R.FEDRICK THE INFORMATION PROVIDED ON QUANTITY OF FOREIGN CONSTRUCTION MATERIAL WAS A FIXED QUANTITY AND COULD ONLY BE PROVIDED BY THE BIDDER. WHILE WE FIND THAT THE CORPS SHOULD NOT HAVE REJECTED KEY'S BID, WE DO NOT FIND THAT AWARD SHOULD HAVE BEEN MADE TO KEY. THE CORPS SHOULD HAVE DETERMINED WHETHER THE PRICE REDUCTION OFFERED BY KEY WAS SUFFICIENT TO FIND THAT THE PRICE OF DOMESTIC STEEL WAS UNREASONABLE. SUCH A DETERMINATION IS NOT SUBJECT TO OUR LEGAL OBJECTION. UNITED STATES STEEL CORPORATION, B-194403, FEBRUARY 11, 1980, 80-1 CPD 118.

ADDITIONALLY, EVEN IF THE CORPS WERE TO NOW DETERMINE THAT THE PRICE OF DOMESTIC STEEL WAS UNREASONABLE, IT APPEARS THAT TERMINATION OF SHAPPERT'S CONTRACT FOR THE CONVENIENCE OF THE GOVERNMENT AND AWARD TO KEY UNDER THIS SOLICITATION WOULD NOT BE A VIABLE REMEDY. CONTRACT PERFORMANCE HAS BEEN CONTINUING SINCE THE COURT DISSOLVED THE TEMPORARY RESTRAINING ORDER ON DECEMBER 21, 1981. ALSO, THE CORPS HAS REPORTED THAT NEW LABOR WAGE RATES HAVE BEEN ISSUED, WHICH WOULD NECESSITATE RESOLICITATION IF THE CURRENT CONTRACT IS TERMINATED. CONSEQUENTLY, WE CANNOT RECOMMEND THAT CORRECTIVE ACTION BE TAKEN.

KEY HAS RAISED ONE ADDITIONAL MATTER. THE PROTESTER COMPLAINS THAT THE CORPS AWARDED THE CONTRACT AFTER IT KNEW THAT KEY INTENDED TO PROTEST, THUS POTENTIALLY LIMITING KEY'S REMEDIES IF IT PREVAILS ON THE MERITS. HAVE CONSISTENTLY HELD THAT AWARDING A CONTRACT IN THE FACE OF A BID PROTEST IS A PROCEDURAL MATTER THAT DOES NOT AFFECT THE VALIDITY OF THE AWARD. MCQUISTON ASSOCIATES, B-199013, SEPTEMBER 1, 1981, 81-2 CPD 192.

WE SUSTAIN THE PROTEST.