Matter of: MKB Constructors, Joint Venture File: B-250413 Date: January 15, 1993

B-250413: Jan 15, 1993

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PROCUREMENT Sealed Bidding Bids Responsiveness Price omission Line items Where contract for the construction of a bridge and roadway is to be awarded as a whole to 1 bidder. MKB contends that Kuney's bid should have been rejected as nonresponsive because Kuney failed to enter a price for one line item in the IFB bid schedule. A line on which bidders were to insert their total bid price. The IFB specified that bidders were to enter prices for each bid schedule line item. Eight bids were received on the bid opening date of September 2. That the sum of the 59 line items completed by Kuney was $2. Was in line with the other bidders' prices for item 555(7). The contracting officer thus determined that Kuney's omission of a price for item 555(7) was a correctable clerical error.

Matter of: MKB Constructors, Joint Venture File: B-250413 Date: January 15, 1993

PROCUREMENT Sealed Bidding Bids Responsiveness Price omission Line items Where contract for the construction of a bridge and roadway is to be awarded as a whole to 1 bidder, the failure of the low bidder to include a price for 1 out of 60 bid schedule line items does not render the bid nonresponsive where the intention to submit the omitted price and the price itself can be determined from the total bid as submitted.

Attorneys

DECISION MKB Constructors, Joint Venture, protests the award of a contract to Max J. Kuney Company under invitation for bids (IFB) No. 92-07 -R17, issued by the Federal Highway Administration, Department of Transportation, for the construction of a bridge and roadway in Mount Ranier National Park. MKB contends that Kuney's bid should have been rejected as nonresponsive because Kuney failed to enter a price for one line item in the IFB bid schedule.

We deny the protest.

The IFB, issued on June 3, 1992, contemplated the award of a firm, fixed- price contract for the construction of a bridge and roadway over Laughingwater Creek, Mount Ranier National Park, Washington. The bid schedule consisted of 60 line items, and a line on which bidders were to insert their total bid price. The IFB specified that bidders were to enter prices for each bid schedule line item, and provided that a single award would be made to the bidder with the lowest total price for all line items.

Eight bids were received on the bid opening date of September 2, 1992, with Kuney submitting the low bid of $2,788,329, and MKB submitting the second low bid of $2,892,211. Upon examination of the bids, the agency found that Kuney had omitted its lump sum price for line item 555(7)-- Structural Metal, Furnished, Fabricated and Erected, and that the sum of the 59 line items completed by Kuney was $2,379,304. The contracting officer concluded that Kuney had mistakenly omitted its price for line item 555(7), and that the price intended by Kuney could be derived by subtracting the sum of the 59 line items completed by Kuney ($2,379,304) from the total price for the project specified by Kuney on the bid schedule ($2,788,329). In reaching this conclusion, the agency noted that the difference between these figures, $409,025, was in line with the other bidders' prices for item 555(7), which ranged from $350,000 to $445,000, as well as the independent government estimate of $488,180. The contracting officer thus determined that Kuney's omission of a price for item 555(7) was a correctable clerical error, that Kuney's intended price for item 555(7) was $409,025, and that Kuney's bid was responsive.

MKB contends that Kuney's bid, as submitted, was nonresponsive due to its omission of a price for line item 555(7), and should have been rejected by the agency. MKB points out that the IFB required that bidders enter prices for each line item on the bid schedule, and contained a clause, Federal Acquisition Regulation (FAR) Sec. 52.214-18, specifying that the "failure to do so will disqualify the bid."

To be responsive, a bid must constitute an unequivocal offer to perform the exact thing called for in the solicitation, such that the acceptance of the bid will bind the contractor in accordance with the material terms and conditions of the solicitation. Doug Jones Sawmill, B-239996, Sept. 9, 1990, 90-1 CPD Para. 233. Where, as here, an IFB provides that award will be made to the low aggregate bidder, a bid which fails to include a price for every item required by the IFB generally must be rejected as nonresponsive since the bidder cannot generally be said to be obligated to provide the item represented in the missing price. E.H. Morrill Co., 63 Comp.Gen. 348 (1984), 84-1 CPD Para. 508; HH&K Builders, B-232140, Oct. 20, 1988, 88-2 CPD Para. 379, recon. denied, HH&K Builders--Recon., B-232140.2, Nov. 30, 1988, 88-2 CPD Para. 537.

Our Office has recognized an exception to this rule under which the omission of a price for a certain line item may be corrected if the bid, as submitted, indicates that an error was made, the exact nature of the error, and the intended price for the bid item. Werres Corp., B-211870, Aug. 23, 1983, 83-2 CPD Para. 243; Lyon Shipyard, Inc., B-208978, Sept. 27, 1982, 82-2 CPD Para. 287; Carter Constr. Co., Inc., B-187889, Apr. 4, 1977, 77-1 CPD Para. 231. This limited exception is based on the premise that where the bid itself establishes both the existence of the error and the bid actually intended, to find the bid nonresponsive would be to convert an obvious clerical error of omission into a matter of responsiveness. Lyon Shipyard, Inc., supra. This exception can be applied even where, as in this case, a solicitation provision states that the failure to bid on an item will cause the bid to be rejected. See Wellco Enters., B-237512, Feb. 20, 1990, 90-1 CPD Para. 196; Burnside-Ott Aviation Training Center, Inc., B-228937, Nov. 6, 1987, 87-2 CPD Para. 461; Carter Constr. Co., Inc., supra.

We find that the exception properly applies here. The IFB clearly provided that the work would be awarded as a whole to one bidder; there was no possibility of an award of less than all of the work required for the total bid price entered by a bidder on the bid schedule. Bidders were thus aware that by completing the schedule and entering a total bid price they would be bound to perform all the work required by the solicitation. Given the unitary nature of the project as established by this IFB, we think it is clear that Kuney, by submitting a bid for this project that contained a total bid price that exceeded, by a substantial amount, the sum of the 59 out of 60 line item bid prices, intended to include a price for line item 555(7) and that the intended price is determinable from the bid itself.

Since Kuney's bid as submitted contained prices for 59 of the 60 bid schedule line items totaling $2,379,304, and a total price for the project of $2,788,329, it is clear that Kuney mistakenly omitted a price for line item 555(7) and that the intended price for this line item is the difference between the total price Kuney bid and the sum of the 59 line items for which Kuney specified prices. See Werres Corp., supra; Lyon Shipyard, supra; Carter Constr. Co., Inc., supra. As noted by the agency, this amount--$409,025--is in line with the other bidders' prices and the independent government estimate for line item 555(7).

Accordingly, because Kuney's bid as submitted showed that the omission of a price for line item 555(7) was an error, and that the price intended for that item was $409,025, we find that agency acted properly in considering Kuney's corrected low bid responsive.

The protest is denied.