B-155903, JUL. 19, 1965

B-155903, JUL. 19, 1965

TO RALPH ENGELSTED CONSTRUCTION COMPANY, INC.:

IN YOUR TELEGRAM OF APRIL 29, 1965, AND YOUR LETTERS OF MAY 3 AND 17,1965, YOU PROTESTED THE AWARD OF A CONTRACT TO SIERRA CONSTRUCTION COMPANY, PURSUANT TO INVITATION FOR BIDS (IFB) NO. 261-65-6, ISSUED BY THE NEVADA OPERATIONS OFFICE (NVO) OF THE UNITED STATES ATOMIC ENERGY COMMISSION, FOR THE CONSTRUCTION OF TECHNICAL FACILITIES AT AREA 11, NEVADA TEST SITE. YOU CONTEND THAT YOUR BID FOR THE COMPLETE CONTRACT WAS LOWER THAN SIERRA-S.

THE IFB ASKED FOR BIDS ON THE FOLLOWING BASIS:

"ITEM 1. TECHNICAL FACILITIES - COMPLETE BASE BID FOR LUMP SUM OF ------

"ITEM 2. OMIT CRANE AND HOIST EQUIPMENT AS DESCRIBED IN SECTION 20. COMPLETE INSTALLATION SHALL BE BY THE CONTRACTOR. IF THIS ITEM NO. 2 IS AWARDED, THE AMOUNT TO BE DEDUCTED FROM THE PRICE QUOTED FOR ITEM NO. 1 WILL BE $-------------- .

BIDS PERTINENT TO YOUR PROTEST WERE RECEIVED AS FOLLOWS:

SCHEDULE.

BID ITEM NO. 1 BID ITEM NO. 2 ENGELSTAD

$312,000 $25,000 SIERRA 313,770 36,000

WHEN THE IFB WAS PREPARED NO DECISION HAD BEEN MADE ON WHETHER TO AWARD A CONTRACT ON THE BASIS THAT THE CRANE AND HOIST EQUIPMENT WOULD BE FURNISHED BY THE CONTRACTOR, OR ON THE BASIS THAT IT WOULD BE FURNISHED BY THE GOVERNMENT, ALTHOUGH IT WAS KNOWN THAT IN EITHER EVENT INSTALLATION OF THE EQUIPMENT WOULD BE BY THE CONTRACTOR. AT THE TIME OF THE AWARD, THE COMMISSION CONCLUDED THAT THE GOVERNMENT'S FURNISHING THE EQUIPMENT WOULD RESULT IN LESS OVERALL COST, AND ACCORDINGLY, THE COMMISSION AWARDED A CONTRACT TO THE SIERRA CONSTRUCTION COMPANY ON THE BASIS THAT ITS BID WAS LOW AFTER DEDUCTION OF ITEM 2.

YOU ASSERT, HOWEVER, THAT PARAGRAPH 14, PAGE 1B-A1 OF THE IFB RESTRICTS THE COMMISSION FROM AWARDING ANY CONTRACT OTHER THAN ON THE BASIS OF BIDS FOR ITEM 1. PARAGRAPH 14, WHICH APPEARS TO BE A STANDARD PART OF THE SUPPLEMENT TO INSTRUCTIONS TO BIDDERS (STD. FORM 22),"PROVIDES AS FOLLOWS:

"BASIS OF AWARD:

THE AWARD OF THIS CONTRACT WILL BE MADE TO THE LOWEST RESPONSIBLE BIDDER. BIDS ON PORTIONS OF THE WORK, WILL NOT BE CONSIDERED AS A BASIS FOR AWARD.'

THE ADMINISTRATIVE AGENCY INTERPRETS PARAGRAPH 14 TO PRECLUDE THE AWARD OF A CONTRACT FOR A PORTION OF THE WORK UNDER EITHER OF THE MUTUALLY EXCLUSIVE ITEMS 1 AND 2, AND TO REQUIRE ONLY THAT AN AWARD UNDER EITHER ITEM ENCOMPASS ALL OF THE WORK STATED IN 25 SEPARATE SECTIONS OF THE SPECIFICATION (E.G., "EARTHWORK," "ELECTRICAL," "PLUMBING AND PIPING"), EXCEPT THAT BY WAY OF DEDUCTION UNDER ITEM 2, THE CONTRACTOR WOULD NOT FURNISH THE EQUIPMENT OTHERWISE REQUIRED BY SECTION 20,"CRANE AND HOISTS.'

IN OUR VIEW THE IFB'S PURPOSE IN ASKING FOR PRICES ON "ITEM 2" WAS CLEARLY AND EXPRESSLY TO PROVIDE FOR MAKING AN AWARD ON LESS THAN ALL OF THE WORK OTHERWISE DESCRIBED IN THE SPECIFICATION, I.E., "LESS" THE FURNISHING OF THE CRANE AND HOISTS. WHILE THIS INTENT AND THE LANGUAGE OF PARAGRAPH 14 MAY BE REGARDED AS CONFLICTING, WE THINK BIDDERS COULD HAVE HAD NO REASONABLE DOUBT THAT THE COMMISSION INTENDED TO CONSIDER MAKING AN AWARD FOR EITHER OF THE "ITEMS," OR MORE PRECISELY, AN AWARD ON EITHER OF THE TWO BASES ON WHICH BID PRICES HAD BEEN SPECIFICALLY REQUESTED, AND THAT "BOILER PLATE" OF PARAGRAPH 14 OPERATED ONLY TO PRECLUDE THE CONSIDERATION OF BIDS FOR LESS WORK THAN WAS REQUIRED BY EITHER OF THE TWO "ITEMS.' THIS CONCLUSION APPEARS TO US TO BE CONSISTENT WITH THE FACT THAT ALTHOUGH YOU DID SUBMIT A BID FOR "ITEM 2" (I.E., ON THE BASIS THAT THE GOVERNMENT WOULD FURNISH THE HOIST AND CRANE EQUIPMENT), YOUR RECOMMENDATION TO THE PROCURING ACTIVITY THAT IN NO EVENT COULD IT ACCEPT THAT BID OR ANY OTHER BID FOR "ITEM 2" WAS APPARENTLY DELAYED UNTIL AFTER A MONTH HAD ELAPSED BETWEEN THE ISSUANCE OF THE IFB AND THE OPENING OF BIDS. IN THIS RESPECT, YOUR ATTENTION IS DIRECTED TO PARAGRAPH 1 OF THE INSTRUCTIONS TO BIDDERS, WHICH ADVISES BIDDERS TO REQUEST EXPLANATIONS PRIOR TO BID OPENING OF THE MEANING OR INTERPRETATION OF PROVISIONS IN THE IFB, AND TO OUR DECISION B-156025, DATED MAY 4, 1965, IN WHICH WE OBSERVED:

"ON ISSUES SUCH AS THIS PERTAINING TO THE CLARITY OF A SOLICITATION, WE FEEL THAT A PROSPECTIVE CONTRACTOR SHOULD SEEK IMMEDIATE CLARIFICATION OF ANY MATERIAL PROVISION AS TO WHICH HE MAY HAVE ANY DOUBT RELATIVE TO ITS PROPRIETY OR CORRECT INTERPRETATION, AND WE REGARD THE TIMELY ACTIONS, OR LACK THEREOF, TAKEN BY THE PROSPECTIVE CONTRACTORS TO OBTAIN EXPLANATION OR CORRECTION BY THE CONTRACTING AGENCY OF SUCH PROVISIONS AS BEING INDICATIVE OF WHETHER THE PROVISIONS OF THE PROCUREMENT REGARDED AS MATERIAL TO PRICE AND PERFORMANCE ARE CLEAR AND UNDERSTOOD BY THE PARTIES CONCERNED.'

FOR THE FOREGOING REASONS, WE FIND NO LEGAL BASIS FOR OBJECTING TO THE CONTRACT AWARDED TO SIERRA. ACCORDINGLY, YOUR PROTEST IS DENIED.