B-226949.2, Jul 20, 1987, 87-2 CPD 67

B-226949.2: Jul 20, 1987

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PROCUREMENT - Bid Protests - GAO procedures - GAO decision - Reconsideration DIGEST: Request for reconsideration of decision is denied where it raises no new factual or legal grounds that warrant reversing the decision. The fifth as an item that would "become part of the contract" if funds were available. Delta's bid for base bid items No. 0001 through 0004 was low. The reason Mid South's bid was chosen was that the Air Force had enough funds to buy the additive item. When that item was included. Mid South's bid was low. Delta protested that it was entitled to award because its bid was the low base bid. That the award to Mid South was not consistent with note 3 of the IFB. That although note 3 was not clear as to the effect of the fifth item on the award decision.

B-226949.2, Jul 20, 1987, 87-2 CPD 67

PROCUREMENT - Bid Protests - GAO procedures - GAO decision - Reconsideration DIGEST: Request for reconsideration of decision is denied where it raises no new factual or legal grounds that warrant reversing the decision.

Delta Industrial Contractors, Inc.-- Reconsideration:

Delta Industrial Contractors, Inc., requests reconsideration of our decision Delta Industrial Contractors, Inc., B-226949, June 4, 1987, 87 1 CPD Para. ***, in which we dismissed Delta's protest of the proposed award of a contract to Mid South Construction Company under invitation for bids (IFB) No. F09650-87-B-0025. We deny the request.

The IFB, in note 3, identified the first four of the five line items listed as base bid items, and the fifth as an item that would "become part of the contract" if funds were available. Note 3 also directed bidders to "see M-32 additive or deductive items for evaluation criteria."

Delta's bid for base bid items No. 0001 through 0004 was low. The reason Mid South's bid was chosen was that the Air Force had enough funds to buy the additive item, and when that item was included, Mid South's bid was low.

Delta protested that it was entitled to award because its bid was the low base bid, and that the award to Mid South was not consistent with note 3 of the IFB. We held, however, that although note 3 was not clear as to the effect of the fifth item on the award decision, award to Mid South clearly was consistent with a provision incorporated by reference into the solicitation through IFB clause M-32. That provision, found in the Department of Defense Federal Acquisition Regulation Supplement, 48 C.F.R. Sec. 252.236-7082 (1985), requires award based on the low bid, considering additives and deductives, that provides the most features of the work within the funding available before bid opening.

In requesting reconsideration, Delta first reiterates the argument that the language of note 3 entitled the firm to the award. As stated above, however, we already have concluded that note 3 in itself was not clear as to the basis for award if the fifth item was included, and we see no reason to change our view.

Delta further contends that bidders should not be held to award criteria incorporated by reference only. There is no legal merit to this contention. It is a common and acceptable practice to incorporate provisions into a document by reference. Furthermore, section B-10a of the IFB in issue here stated that clauses incorporated by reference had the same force and effect as if they were given in full text.

Delta's request for reconsideration raises no new factual or legal grounds which would warrant reversal or modification of our prior decision. The request therefore is denied. 4 C.F.R. Sec. 21.12 (1986).