B-181009, JUN 28, 1974

B-181009, JUN 28, 1974

PRIOR DECISION DENYING PROTEST BASED ON MISTAKE IN GOVERNMENT ESTIMATE AND ALLEGED AMBIGUITIES IN SPECIFICATIONS IS REAFFIRMED SINCE FACTS SHOW THAT NONE OF BIDDERS RELIED ON ERRONEOUS GOVERNMENT ESTIMATE OR WAS PREJUDICED THEREBY. BY LETTER FILED ON MAY 20, 1974, PROTESTER FOR FIRST TIME SPECIFIES ALLEGED AMBIGUITIES IN SOLICITATION. SINCE PURPORTED AMBIGUITIES ARE OF "APPARENT" NATURE AND SHOULD HAVE BEEN RAISED PRIOR TO FEBRUARY 26, 1974 BID OPENING, PROTEST BASED THEREON IS UNTIMELY AND INELIGIBLE FOR GAO CONSIDERATION. 4 CFR 20.2(A).

TO JCL SERVICES, INC.:

JCL SERVICES, INCORPORATED (JCL), HAS REQUESTED A SECOND RECONSIDERATION OF OUR DECISION B-181009, APRIL 16, 1974, IN WHICH WE DENIED ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO THE LOW BIDDER UNDER INVITATION FOR BIDS NO. N62474-74-C-5802, ISSUED BY THE LONG BEACH NAVAL SHIPYARD, LONG BEACH, CALIFORNIA. THIS DECISION WAS AFFIRMED ON MAY 9, 1974, PURSUANT TO JCL'S FIRST REQUEST FOR RECONSIDERATION.

IN ITS INITIAL PROTEST, JCL ARGUED THAT THE SOLICITATION SHOULD BE CANCELED AND THE REQUIREMENT READVERTISED BECAUSE THE IFB SPECIFICATIONS CONTAINED CERTAIN UNIDENTIFIED AMBIGUITIES AND BECAUSE THE GOVERNMENT FAILED TO INFORM BIDDERS OF A CHANGE IN AN INTERNAL COST ESTIMATE. JCL ALSO QUESTIONED THE RESPONSIBILITY OF THE LOW BIDDER, AN ALLEGATION WHICH IT SUBSEQUENTLY ABANDONED.

JCL CITES ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-404.1(B)(I), WHICH PERMITS THE CONTRACTING OFFICER TO CANCEL BIDS AFTER OPENING BUT PRIOR TO AWARD WHEN HE DETERMINES IN WRITING THAT INADEQUATE OR AMBIGUOUS SPECIFICATIONS WERE CITED IN THE INVITATION. FROM OUR REVIEW OF THE RECORD, WE DO NOT BELIEVE THAT JCL HAS SHOWN THAT THE ABSENCE OF SUCH A DETERMINATION BY THE CONTRACTING OFFICER WAS THE RESULT OF AN ABUSE OF THE DISCRETION COMMITTED TO HIM.

JCL REASSERTS ITS ALLEGATION THAT THE CONTRACTING AGENCY FAILED TO APPRISE BIDDERS OF A REVISION TO ITS ORIGINALLY MISSTATED INTERNAL GOVERNMENT ESTIMATE, IN ORDER TO PERMIT BIDDERS A CHANGE TO REVISE THEIR BIDS ACCORDINGLY.

THE MATTER OF THE ERRONEOUS GOVERNMENT ESTIMATE WAS CONSIDERED IN OUR DECISION OF APRIL 16, 1974, AND OUR RECONSIDERATION THEREOF DATED MAY 9, 1974, WHEREIN WE CONCLUDED THAT SINCE THE RECORD PROVED THAT NONE OF THE BIDDERS RELIED ON THE ERRONEOUS GOVERNMENT ESTIMATE OR COULD HAVE BEEN PREJUDICED THEREBY, THE NONDISCLOSURE OF A REVISION TO THE ESTIMATE DID NOT PROVIDE A SUFFICIENT BASIS UPON WHICH TO QUESTION THE LEGALITY OF THE AWARD.

IN ADDITION, JCL ALLEGES THAT SPECIFIC DEFECTS IN THE SOLICITATION SPECIFICATIONS CONSTITUTE "LATENT AMBIGUITIES." IT IS ARGUED THAT THE SOLICITATION CONTAINED NO DESCRIPTION OF THE TYPE OF METAL TO BE UTILIZED ON THE JOB; NO INDICATION WHETHER ACCESS PANELS WERE TO BE USED OR WHETHER DOORS WERE TO BE INSTALLED; NO INDICATION OF THE NUMBER OF ACCESS PANELS TO BE INSTALLED (IF ANY); NO STATEMENT OF TOTAL FOOTAGE OF DUCTS; NO MENTION AS TO TYPE OF CLEANING TO BE PERFORMED OR METHOD OF PERFORMANCE; NO MENTION AS TO NUMBER OF GRILLS; NO STATEMENT AS TO WHETHER FILTERS ARE TO BE CENTRIFUGED; NO MENTION AS TO THE TYPE OF CHEMICALS TO BE UTILIZED; AND FAILED TO STATE THE ACCURATE LENGTH OF DUCTS IN VARIOUS PORTIONS OF THE BUILDING.

WE HAVE REVIEWED THE ALLEGED "LATENT AMBIGUITIES," AND HAVE CONCLUDED THAT THEY SHOULD HAVE BEEN APPARENT FROM A PERUSAL OF THE SPECIFICATIONS. IN THIS REGARD, OUR BID PROTEST REGULATIONS REQUIRE THAT SUCH PROTESTS BE FILED PRIOR TO BID OPENING. 4 CFR 20.2(A). INASMUCH AS BIDS WERE OPENED ON FEBRUARY 26, 1974, AND THESE PARTICULAR SPECIFICATION "AMBIGUITIES" WERE FIRST ALLEGED IN JCL'S LETTER FILED WITH OUR OFFICE ON MAY 20, 1974, THE ALLEGATIONS ARE MANIFESTLY UNTIMELY AND, THEREFORE, WE MUST DECLINE TO CONSIDER THEM.

ACCORDINGLY, WE REAFFIRM OUR DECISION OF APRIL 16, 1974.